Execution Copy
STOCK PURCHASE AGREEMENT
STOCK PURCHASE AGREEMENT (this “
Agreement ”)
dated as of June 29, 2007 (the “ Closing Date ”), by and among
the selling stockholders identified in Schedule I hereto (the “
Selling Stockholders ”), PSS WORLD MEDICAL, INC. (“PSS”), a
Florida corporation (the “ Buyer ”) and athenahealth, Inc.
a Delaware corporation (the “ Company ”).
W I T N E S S E T H:
WHEREAS, the Selling Stockholders desire to sell to
the Buyer and the Buyer desires to purchase from the Selling
Stockholders, in the aggregate, 493,157 shares (the “
Series C Shares ”) of the Series C Convertible Preferred Stock, par
value $0.01 per share of the Company (the “
Series C Preferred Stock ”);
WHEREAS, the Selling Stockholders desire to sell to
the Buyer and the Buyer desires to purchase from the Selling
Stockholders, in the aggregate, 862,164 shares (the “
Series D Shares ”) of the Series D Convertible Preferred Stock, par
value $0.01 per share of the Company (the “
Series D Preferred Stock ”); and
WHEREAS, the Selling Stockholders desire to sell to
the Buyer and the Buyer desires to purchase from the Selling
Stockholders, in the aggregate, 115,268 shares (the “
Series E Shares ”
and collectively with the Series C Shares and Series D Shares the
“ Preferred Shares
”) of the Series E Convertible Preferred
Stock, par value $0.01 per share of the Company (the “
Series E Preferred Stock ” and collectively with the Series C Preferred Stock and
Series D Preferred Stock the “ Preferred Stock ”).
NOW, THEREFORE , in
consideration of the premises and the mutual covenants contained in
this Agreement and for other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the
parties hereto agree as follows:
ARTICLE I - PURCHASE AND SALE
1.01
Purchase and Sale .
Upon the terms and subject to the conditions of this Agreement, on
the Closing Date, the Selling Stockholders severally and not
jointly shall sell to the Buyer, and the Buyer shall purchase from
each Selling Stockholder that number of Series C Shares, Series D
Shares and Series E Shares set forth opposite its name on
Schedule I attached hereto for the purchase price set forth opposite its
name on such schedule under the column heading “Aggregate
Purchase Price to Selling Stockholder.” The price per share
for each Preferred Share is $ 15.30 (the “
Per Share Purchase Price ”).
1.02
Closing . On the
Closing Date and at the closing of the transactions contemplated
hereby (the “ Closing
”) the following actions shall take
place:
(a)
Each Selling Stockholder shall deliver or cause to
be delivered to Buyer and the Company, as applicable (i) a
certificate or certificates for the Preferred Shares duly endorsed
or accompanied by irrevocable stock transfer powers substantially
in the form attached
hereto as Exhibit A and (ii) such other
instruments of transfer and documents as Buyer or the Company may
reasonably request.
(b)
The Buyer shall deliver or cause to be delivered to
the Selling Stockholders or the Company, as applicable (i) the
amount set forth opposite such Selling Stockholder’s name
under the heading “Aggregate Purchase Price to Selling
Stockholder” as set forth on Schedule I attached hereto, by
wire transfer of immediately available funds in accordance with the
wire instructions set forth on Schedule I , (ii) an instrument
of accession to that certain Second Amended and Restated Voting
Agreement dated as of April 16, 2004 by and between the Company and
the parties thereto, as amended, (the “ Voting Agreement ”) and that
certain Second Amended and Restated Investor Rights Agreement dated
as of April 16, 2004 by and between the Company and the parties
thereto, as amended, (the “ Investor
Rights Agreement ”) in
substantially the form attached hereto as Exhibit B and (iii) such other
documents as the Company or Selling Stockholders may reasonably
request. Each Selling Stockholder will provide their wire transfer
instructions in writing to the Buyer at least 24 hours before the
Closing.
(c)
The Company, upon delivery by the Buyer to the
Company of the items referenced in (b), shall promptly, and without
further requirements on the Buyers, the Selling Stockholders or
otherwise, issue to the Buyers certificates representing the
Preferred Shares in the name of Buyer and in the amounts set forth
opposite its name on Schedule II attached
hereto.
(d)
The Company and the Buyer shall enter into a Board
Observer Rights Agreement in the form attached hereto as
Exhibit C .
(e)
The Buyer shall enter into a Lock-Up Agreement in
the form attached hereto as Exhibit
D with the managing underwriters of the
Company’s proposed initial public offering (the
“Underwriters”).
(f)
The Underwriters shall release the Selling
Shareholders from lock-up agreements previously executed by them,
to the extent required for the sale of the Preferred Shares
hereunder.
(g)
The Buyer shall pay the expenses set forth in
Section 5.10 hereof.
1.03
Closing Time .
Theinitial purchase and sale of the Preferred Shares shall take
place remotely via the exchange of documents and signatures, at
10:00 a.m., on June 29, 2007, or at such other time and place as
the Company, the Selling Stockholders and Buyer mutually agree
upon, orally or in writing. In the event there is more than one
closing, the term “ Closing ” shall apply to each
such closing unless otherwise specified.
ARTICLE II - REPRESENTATIONS AND
WARRANTIES
OF THE SELLING STOCKHOLDERS
Each Selling Stockholder, severally and not jointly,
represents and warrants to the Buyer and the Company that the
statements contained in this Article II as to itself are correct
and complete as of the date of this Agreement.
2.01
Title to and Validity of Shares
. The Selling Stockholder has good and valid title
to and has the power to sell the Preferred Shares, free and clear
of any lien, pledge, security interest, options, charges,
encumbrances or other claim or defect of title whatsoever
(collectively, “ Liens
”) and, upon purchase and payment therefor and
delivery to the Buyer thereof in accordance with the terms of this
Agreement, the Buyer will obtain good and valid title to such
Preferred Shares free and clear of any Lien or adverse claim other
than any Liens contained in agreements between the Company and the
Selling Shareholders entered into in connection with the purchase
of the Preferred Shares .
2.02
Organization; Authority; Binding
Agreement . The Selling Stockholder is
duly organized, validly existing and in good standing under the
laws of the jurisdiction of its organization. The Selling
Stockholder has the legal power, right and authority to enter into
and perform this Agreement, and to perform its obligations
hereunder. The Selling Stockholder has received all authorizations
and approvals required by law and under its charter and by-laws or
other organizational documents to enter into this Agreement and to
sell, transfer and deliver all of the Preferred Shares being sold
by such Selling Stockholder hereunder and to comply with its other
obligations hereunder. This Agreement has been duly executed and
delivered and constitutes a valid, legal binding and enforceable
agreement of such Selling Stockholder.
2.03
No Conflicts; No Further Consents, etc
. Neither the execution, delivery and performance by
the Selling Stockholder of this Agreement nor the consummation by
such Selling Stockholder of the transactions contemplated hereby
conflicts with such Selling Stockholder’s organizational
documents, or any instrument, agreement, governmental
authorization, or order to which the Preferred Shares are subject
or by which such Selling Stockholder is a party or is bound [lockup
waiver]. No consent, approval, authorization or other order of, or
registration or filing with, any court or other governmental
authority or agency, is required for the consummation by the
Selling Stockholders of the transactions contemplated by this
Agreement. No consent, approval or waiver is required under any
instrument or agreement to which the Preferred Shares are subject
or by which such Selling Stockholder is a party or is bound in
connection with the consummation by the Selling Stockholder of the
transactions contemplated by this Agreement. The Selling
Stockholder has complied with, or conformed to, in all respects,
the provisions of each instrument or agreement to which the
Preferred Shares are subject or by which such Selling Stockholder
is a party or is bound, in connection with the consummation of the
transactions contemplated by this Agreement.[lockup
waiver]
2.04
Release . There are no
representations, warranties, agreements or undertakings of the
Buyer with respect to the transactions contemplated by this
Agreement other than those set forth in this Agreement. The Selling
Stockholder acknowledges that it has performed its own analysis of
the price at which it would agree to sell the Preferred Shares
being sold by such Selling Stockholder and that the Company could
effect at any time an initial public offering or sale which
generates liquidity for its stockholders at valuations on a per
share basis far in excess of the Original Per Share Purchase Price.
Such Selling Stockholder hereby and forever fully releases and
discharges the Buyer, the Company and its respective directors,
officers, trustees, shareholders, employees, beneficiaries,
attorneys, agents, representatives, partners, limited partners,
investors, affiliates, successors and assigns (collectively, the
“ Buyer Released Parties
” and the “ Company Released Parties ,”
respectively) of and from any and all suits, demands, obligations,
liabilities, claims and causes of action, contingent or otherwise,
of every kind and
nature, at law and in equity, whether asserted,
unasserted, absolute, contingent, known or unknown, which such
Selling Stockholder or its directors, officers, trustees,
shareholders, employees, beneficiaries, attorneys, agents,
representatives, partners, limited partners, investors, affiliates,
successors and/or assigns may have against the Buyer Released
Parties or the Company Released Parties, or any of them, to the
extent arising from the transactions contemplated by this
Agreement, except for claims arising under, and subject to the
limitations contained in, the express terms of this Agreement,
including any inaccuracies in the representations and warranties of
the Buyer set forth in this Agreement.
ARTICLE III - REPRESENTATIONS AND WARRANTIES OF
THE BUYER
The Buyer represents and warrants to the Selling
Stockholders and the Company that the statements contained in this
Article III are true and complete as of the date of this
Agreement.
3.01
Organization; Authority; Binding
Agreement . Buyer is duly organized,
validly existing and in good standing under the laws of the
jurisdiction of its organization. Buyer has the legal power, right
and authority to eater into and perform this Agreement, and to
perform its obligations hereunder. Buyer has received all
authorizations and approvals required by law and under its charter
and by-laws or other organizational documents to enter into this
Agreement and to purchase all of the Preferred Shares being
acquired by Buyer hereunder and to comply with its other
obligations hereunder. This Agreement has been duly executed and
delivered and constitutes a valid, legal binding and enforceable
agreement of Buyer.
3.02
No Conflicts; No Further Consent, etc
. Neither the execution, delivery and performance by
Buyer of this Agreement nor the consummation by Buyer of the
transactions contemplated hereby conflicts with Buyer’s
organizational documents, or any governmental authorization or
order by which Buyer is a party or is bound. No consent, approval,
authorization or other order of, or registration or filing with,
any court or other governmental authority or agency, is required
for the consummation by Buyer of the transactions contemplated by
this Agreement.
3.03
Purchasing for Own Account . Buyer is acquiring the Preferred Shares being purchased by
Buyer for investment purposes only and is not acquiring the
Preferred Shares being purchased by Buyer with a view to, or for
sale in connection with, the distribution of the Preferred Shares
being purchased by Buyer within the meaning of the Securities Act
of 1933, as amended (the “ Securities Act ”).
3.04
Accredited Investor .
Buyer is an accredited investor as such term is defined in
Rule 501(a) of Regulation D under the Securities Act, and has
reasonable access to, and has had sufficient opportunity to
carefully review and analyze, all material information about the
Company’s business, financial condition, operations and value
that Buyer believes to be relevant to its purchase of the Preferred
Shares. Buyer is sophisticated and experienced in evaluating the
merits and risks involving an investment in the Company’s
securities and the particulars of the purchase of the Preferred
Shares. Buyer has the ability to bear the economic risks of its
purchase of the Preferred Shares and has been able to obtain all
information required in making an informed decision regarding its
investment.
3.05
Release . There are no
representations, warranties, agreements or undertakings of the
Selling Stockholders with respect to the transactions contemplated
by this Agreement other than those set forth in this Agreement.
Buyer further represents and warrants that, in executing and
delivering this Agreement, it has not relied on any statement or
representation made by any legal counsel or investment advisor to
or other agent of any Selling Stockholder. Buyer hereby and forever
fully releases and discharges the Company Released Parties and the
Selling Stockholders and their respective directors, officers,
trustees, shareholders, employees, beneficiaries, attorneys,
agents, representatives, partners, limited partners, investors,
affiliates, successors and assigns (collectively, the
“ Seller Released Parties
”) of and from any and all suits, demands,
obligations, liabilities, claims and causes of action, contingent
or otherwise, of every kind and nature, at law and in equity,
whether asserted, unasserted, absolute, contingent, known or
unknown, which Buyer or its directors, officers, trustees,
shareholders, employees, beneficiaries, attorneys, agents,
representatives, partners, limited partners, investors, affiliates,
successors and/or assigns may have against the Seller Released
Parties or the Company Released Parties, or any of them, to the
extent arising from the transactions contemplated by this
Agreement, except for claims arising under, and subject to the
limitations contained in, the express terms of this Agreement,
including any inaccuracies in the representations and warranties of
the Selling Stockholders set forth in this Agreement.
3.06
Company Participation .
Buyer acknowledges that (i) the offer and sale of the Preferred
Shares have been made solely by the Selling Stockholders, and (ii)
the Company is not participating in or recommending the sale and
has made no representation or warranty (and has not authorized the
Sellers to do so on behalf of the Company) regarding the Preferred
Shares, or the business operations or future prospects of the
Company.
ARTICLE IV - AGREEMENTS OF THE COMPANY
,
SELLING STOCKHOLDERS AND THE
BUYERS
4.01
Consent to Transaction; Transfer of
Shares . The Company hereby irrevocably
consents to the sale of the Preferred Shares as contemplated by
this Agreement. The Company and each Selling Stockholder hereby
irrevocably consents to the sale of the Preferred Shares as
contemplated in this Agreement and, solely with respect to the sale
of the Preferred Shares to Buyer, hereby waives any consents,
notices or notice periods, rights of first offer, rights of first
refusal and any other limitations upon the transfer of the
Preferred Stock to Buyer contained in any agreement between the
Company and any Selling Stockholder (other than this
Agreement). Upon delivery to the Company of
stock certificates representing the Preferred Shares duly enclosed
or accompanied, by irrevocable stock transfer powers substantially
in the form at
