Exhibit 10.02(a)
SERIES A CONVERTIBLE PREFERRED STOCK
REPURCHASE AGREEMENT
Between
OCCUPATIONAL HEALTH + REHABILITATION INC
and
THE SERIES A CONVERTIBLE PREFERRED STOCKHOLDERS
NAMED ON SCHEDULE I
Dated as of March 24, 2003
TABLE OF CONTENTS
1. Authorization; Purchase of Series A Preferred .......................... 1
1.1 Authorization ........................................................ 1
1.2 Repurchase of Series A Preferred at the Closing ...................... 1
2. Closing; Delivery ...................................................... 1
2.1 The Closing .......................................................... 1
2.2 Delivery ............................................................. 2
3. Representations and Warranties of the Company .......................... 2
3.1 Organization and Corporate Power; No Violations ...................... 2
3.2 Authorization ........................................................ 3
3.3 Capitalization ....................................................... 4
3.4 Contracts and Commitments ............................................ 5
3.5 Financial Statements ................................................. 5
3.6 Events Subsequent to the Date of the Balance Sheet ................... 6
3.7 Litigation; Compliance with Law ...................................... 6
3.8 Loans and Advances ................................................... 7
3.9 Assumptions, Guaranties, Etc. of Indebtedness of Other Persons ....... 7
3.10 Significant Customers and Suppliers .................................. 7
3.11 Governmental Approvals ............................................... 7
3.12 Certain Agreements of Officers ....................................... 8
3.13 No Insolvency ........................................................ 8
3.14 ERISA ................................................................ 8
3.15 Transactions with Affiliates ......................................... 9
3.16 Securities Act of 1933 ............................................... 9
3.17 Registration Rights .................................................. 9
3.18 Insurance ............................................................ 9
3.19 Books and Records .................................................... 9
3.20 Title to Assets ...................................................... 9
3.21 Burdensome Restrictions .............................................. 9
3.22 Computer Programs .................................................... 10
3.23 Intellectual Property Rights ......................................... 11
3.24 Taxes ................................................................ 11
3.25 Disclosure ........................................................... 11
3.26 Additional Information ............................................... 11
4. Covenants .............................................................. 2
5. Representations and Warranties of the Sellers .......................... 13
6. Conditions to the Obligations of the Sellers ........................... 14
6.1 Accuracy of Representations and Warranties ........................... 14
6.2 Performance .......................................................... 14
6.3 Documents; Corporate Approvals ....................................... 15
6.4 Payment of Costs ..................................................... 16
6.5 Board of Directors ................................................... 16
6.6 Sellers' Participation ............................................... 16
6.7 Consents, Waivers, Etc. .............................................. 16
7. Conditions to the Obligations of the Company ........................... 16
7.1 Accuracy of Representations and Warranties ........................... 16
7.2 Performance .......................................................... 16
7.3 Approvals ............................................................ 17
7.4 Stockholders' Agreement, Registration Rights Agreement and
Subordination Agreement .............................................. 17
7.5 Sellers' Participation ............................................... 17
8. Successors and Assigns ................................................. 17
9. Survival of Representations and Warranties ............................. 17
10. Costs, Expenses and Taxes .............................................. 17
11. Notices ................................................................ 17
12. Brokers ................................................................ 18
13. Entire Agreement ....................................................... 18
14. Amendments and Waivers ................................................. 18
15. Counterparts ........................................................... 19
16. Captions ............................................................... 19
17. Severability ........................................................... 19
18. Waiver of Preemptive Rights ............................................ 19
19. Governing Law .......................................................... 19
SCHEDULES:
Schedule I Schedule of Sellers
EXHIBITS:
Exhibit A Form of Promissory Note
Exhibit B Disclosure Schedule
Exhibit C Opinion of ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP
Exhibit D Amended and Restated Stockholders' Agreement
Exhibit E Amended and Restated Registration Rights Agreement
Exhibit F Subordination Agreement
[The Company agrees to furnish supplementally a copy of any omitted schedule to
the Commission upon request.]
SERIES A CONVERTIBLE PREFERRED
STOCK REPURCHASE AGREEMENT
This Series A Convertible Preferred Stock Repurchase Agreement (the
"Agreement") dated as of March 24, 2003 is between Occupational Health +
Rehabilitation Inc, a Delaware corporation (the "Company"), and the several
holders of Series A Convertible Preferred Stock, par value $.001 per share (the
"Series A Preferred") named in the attached Schedule I (each individually, a
"Seller" and collectively, the "Sellers").
In consideration of the mutual promises and covenants contained in this
Agreement, and intending to be legally bound by the terms and conditions of this
Agreement, the parties hereto hereby agree as follows:
1. Authorization; Purchase of Series A Preferred.
1.1 Authorization.
(a) Common Stock. The Company has duly authorized the issuance of
up to 1,608,247 shares of its previously authorized but unissued
shares of Common Stock, par value $.001 per share (the "Repurchase
Stock") to the Sellers.
(b) The Notes. The Company has duly authorized the issuance of
the Company's Promissory Notes in the original aggregate principal
amount of up to $2,699,740.35 (collectively, the "Notes" and
individually, a "Note") to the Sellers. Each Note will be
substantially in the form set forth in Exhibit A hereto.
1.2 Repurchase of Series A Preferred at the Closing. Upon the terms
and subject to the conditions hereof, at the Closing each Seller agrees,
severally but not jointly, to sell to the Company all of its shares of
Series A Preferred as set forth opposite such Seller's name on the attached
Schedule I under the heading "Series A Preferred Shares", and the Company
agrees to repurchase all such shares of Series A Preferred. The aggregate
purchase price of the Series A Preferred being repurchased by the Company
from each Seller at the Closing is set forth opposite such Seller's name on
the attached Schedule I and includes: (i) that number of shares of
Repurchase Stock set forth opposite such Seller's name on the attached
Schedule I under the heading "Shares of Repurchase Stock"; (ii) a Note in
the principal amount set forth opposite such Seller's name on the attached
Schedule I under the heading "Notes"; and (iii) the dollar amount set forth
opposite such Seller's name on the attached Schedule I under the heading
"Cash".
2. Closing; Delivery.
2.1 The Closing. The closing of the repurchase of the Series A
Preferred pursuant to this Agreement shall take place by mail and/or
facsimile at the offices of ▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, LLP, ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ on March 24, 2003,
or at such other time, date, and place as are mutually agreeable to the
Company and the Sellers (the "Closing"). The date of the Closing is
hereinafter referred to as the "Closing Date."
2.2 Delivery. At the Closing, upon the terms and subject to the
conditions hereof, each Seller shall deliver to the Company the
certificates evidencing the shares of Series A Preferred to be sold by each
Seller at the Closing accompanied by executed stock powers and, in payment
therefor, the Company shall deliver to each Seller the certificates
evidencing the number of shares of Repurchase Stock to be issued to such
Seller at the Closing or issue on the Closing Date irrevocable instructions
to the Company's transfer agent to deliver such stock certificates as soon
as practicable after the Closing, a Note evidencing the aggregate principal
amount set forth opposite the Seller's name on Schedule I under the heading
"Notes," and the dollar amounts to be paid to such Seller at the Closing.
The Company shall make payment of all dollar amounts to be paid at the
Closing to each Seller by wire transfer in immediately available funds.
3. Representations and Warranties of the Company. For purposes of this
Section 3, unless otherwise specified, the term Company shall include the
Company and each of its Subsidiaries. Except as disclosed in the Disclosure
Schedule attached hereto as Exhibit B (the "Disclosure Schedule"), the Company
hereby represents and warrants to the Sellers as follows:
3.1 Organization and Corporate Power; No Violations.
(a) The Company is a corporation duly organized, validly existing
and in corporate good standing under the laws of the State of Delaware
and is qualified to do business as a foreign corporation in each
jurisdiction in which such qualification is required, except where the
failure to be so qualified would not have either individually or in
the aggregate, a material adverse effect on the business, operations,
affairs or condition (financial or otherwise), assets, liabilities or
contractual rights of the Company (a "Material Adverse Effect"). The
Company has all required corporate power and authority to own its
property, to carry on its business as presently conducted or
contemplated, to enter into and perform this Agreement, the Amended
and Restated Stockholders' Agreement (the "Stockholders' Agreement"),
the Amended and Restated Registration Rights Agreement (the
"Registration Rights Agreement"), the Subordination Agreement (the
"Subordination Agreement"), the Notes and the other agreements,
documents and instruments contemplated hereby or executed in
connection herewith (collectively with this Agreement, the
"Transaction Documents"), and generally to carry out the transactions
contemplated hereby or executed in connection herewith. The copies of
the Restated Certificate of Incorporation and Certificate of
Designations (collectively, the "Restated Charter") and By-laws of the
Company, as amended to date, which have been furnished to the Sellers
by the Company, are correct and complete at the date hereof.
(b) The Company is in compliance with the terms and provisions of
this Agreement and of its Restated Charter and Bylaws, and with all
mortgages, indentures, leases, agreements and other instruments, if
any, by which it is bound or to which it or any of its respective
properties or assets are subject. The Company is in
compliance with all judgments, decrees, governmental orders, statutes,
rules or regulations by which it is bound or to which any of its
properties or assets are subject. Neither the execution and delivery
of this Agreement or the other Transaction Documents, or the issuance
of the Repurchase Stock or Notes, nor the consummation of any
transaction contemplated by this Agreement or the Transaction
Documents, has constituted or resulted in or will constitute or result
in a default or violation of any term or provision of any of the
foregoing documents, instruments, judgments, agreements, decrees,
orders, statutes, rules and regulations.
(c) Section 3.1(c) of the Disclosure Schedule contains a list of
all subsidiaries of the Company and its equity interest therein.
Except for such subsidiaries, the Company does not (i) own of record
or beneficially, directly or indirectly, (A) any shares of capital
stock or securities convertible into capital stock of any other
corporation or (B) any participating interest in any partnership,
joint venture or other non-corporate business enterprise or (C) any
assets comprising the business or obligations of any other
corporation, partnership, joint venture or other non-corporate
business enterprise, or (ii) control, directly or indirectly, any
other entity. Each of the Company's corporate subsidiaries and limited
liability company subsidiaries is a corporation or limited liability
company duly incorporated or organized, as the case may be, validly
existing and in good standing under the laws of its respective
jurisdiction of incorporation or organization, as the case may be, and
is duly licensed or qualified to transact business as a foreign
corporation or limited liability company, as the case may be, and is
in good standing in each jurisdiction in which the nature of the
business transacted by it or the character of the properties owned or
leased by it requires such licensing or qualification, except where
the failure to be so qualified would not have a Material Adverse
Effect. Each of the subsidiaries referenced above has the corporate
power or entity power, as the case may be, and authority to own and
hold its properties and to carry on its business as now conducted and
as proposed to be conducted. All of the outstanding shares of capital
stock or equity interests, as the case may be, of each of the
subsidiaries are owned beneficially and of record by the Company, one
of its other wholly-owned subsidiaries, or any combination of the
Company and/or one or more of its other wholly-owned subsidiaries, in
each case free and clear of any liens, charges, restrictions, claims
or encumbrances of any nature whatsoever; and there are no outstanding
subscriptions, warrants, options, convertible securities, or other
rights (contingent or other) pursuant to which any of the subsidiaries
is or may become obligated to issue any shares of its capital stock or
equity interests, as the case may be, to any person other than the
Company or one of the other subsidiaries.
3.2 Authorization. The Transaction Documents are valid and binding
obligations of the Company, enforceable in accordance with their respective
terms. The execution, delivery and performance of the Transaction Documents
have been duly authorized by all necessary corporate or other action of the
Company. The issuance and delivery of the Repurchase Stock, the Notes and
the cash in accordance with this Agreement has been duly authorized and
reserved for issuance, as the case may be, by all necessary corporate
action on the part of the Company. The Repurchase Stock, when issued and
delivered against the shares of
Series A Preferred therefor in accordance with the provisions of this
Agreement, will be duly authorized and validly issued, fully paid and
non-assessable, is not subject to preemptive rights or other preferential
rights in any present or future stockholders of the Company, will not be
subject to any lien, and will not conflict with any provision of any
agreement or instrument to which the Company is a party or by which it or
its property is bound. The Notes, when issued and delivered against the
shares of Series A Preferred therefor in accordance with the provisions of
this Agreement, will be duly authorized and validly issued, and will not
conflict with any provision of any agreement or instrument to which the
Company is a party or by which it or its property is bound. No consent,
approval or authorization of, or designation, declaration or filing with,
any governmental authority or any other person or entity is required in
connection with the execution, delivery and performance of the Transaction
Documents, or the issuance and delivery of the Repurchase Stock and Notes
in accordance with the terms of this Agreement or the consummation of any
other transaction contemplated hereby or by the other Transaction Documents
other than (i) filings pursuant to federal and state securities laws (all
of which filings have been made by the Company, other than those which are
required to be made after the Closing and which will be duly made on a
timely basis) in connection with the issuance of the Repurchase Stock and
(ii) with respect to the Registration Rights Agreement, the registration of
the shares covered thereby with the Commission and filings pursuant to
state securities laws.
3.3 Capitalization. The authorized capital stock of the Company
consists of (i) 5,000,000 shares of Preferred Stock, par value $.001 per
share (the "Preferred Stock"), of which 1,666,667 shares have been
designated Series A Preferred, and (ii) 10,000,000 shares of Common Stock.
Immediately prior to the Closing, 1,479,864 shares of Common Stock will be
validly issued and outstanding, fully paid and nonassessable with no
personal liability attaching to the ownership thereof and 1,416,667 shares
of Series A Preferred will be validly issued and outstanding, fully paid
and nonassessable with no personal liability attaching to the ownership
thereof. All the outstanding shares of capital stock of the Company have
been duly authorized, and are validly issued, fully paid and
non-assessable. The designations, powers, preferences, rights,
qualifications, limitations and restrictions in respect of each class and
series of authorized capital stock of the Company are as set forth in the
Restated Charter and all such designations, powers, preferences, rights,
qualifications, limitations and restrictions are valid, binding and
enforceable and in accordance with all applicable laws. Except as set forth
in the attached Disclosure Schedule, (i) no subscription, warrant, option,
convertible security, or other right (contingent or other) to purchase or
otherwise acquire equity securities of the Company is authorized or
outstanding and (ii) there is no commitment by the Company to issue shares,
subscriptions, warrants, options, convertible securities, or other such
rights or to distribute to holders of any of its equity securities any
evidence of indebtedness or asset. Except as provided for in the Restated
Charter or as set forth in the attached Disclosure Schedule, the Company
has no obligation (contingent or other) to purchase, redeem or otherwise
acquire any of its equity securities or any interest therein or to pay any
dividend or make any other distribution in respect thereof. Except for the
Stockholders' Agreement, there are no voting trusts or agreements,
stockholders' agreements, pledge agreements, buy-sell agreements, rights of
first refusal, preemptive rights or proxies relating to any securities of
the Company or any of its subsidiaries (whether or not the Company or any
of its subsidiaries is a party thereto). All of the outstanding
securities of the Company were issued in compliance with all applicable
federal and state securities laws and no stockholder has a right of
rescission with respect thereto.
3.4 Contracts and Commitments. Except as set forth on the Disclosure
Schedule or as filed as an exhibit to the Company's periodic reports filed
pursuant to the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), the Company (i) is not a party to any oral or written contract,
obligation, instrument, corporate restriction or commitment which involves
a potential commitment in excess of $150,000 or which is otherwise material
and not entered into in the ordinary course of business, and (ii) does not
have any oral or written employment or consulting contracts; stock
redemption or purchase agreements; registration rights agreements;
non-competition agreements; financing agreements; licenses; contracts
regarding intellectual property; agreements with officers, directors,
employees or shareholders of the Company or persons or organizations
related to or affiliated with any such persons (except for agreements
between the Company and the Series A Preferred); leases; or agreements
relating to product development.
The Company and, to the Company's knowledge, each other party thereto
have in all material respects performed all the actions required to be
performed by them to date, have received no notice of default and are not
in default under any lease, agreement or contract now in effect to which
the Company is a party or by which it or its property may be bound. The
Company has no present expectation or intention of not fully performing all
its respective material obligations under each such lease, contract or
other agreement, and the Company has no knowledge of any material breach or
anticipated breach by the other party to any contract or commitment to
which the Company is a party.
3.5 Financial Statements. The Company has furnished to the Sellers the
unaudited consolidated balance sheet of the Company and its subsidiaries as
of September 30, 2002 (the "Balance Sheet") and the related unaudited
consolidated statements of income, stockholders' equity and cash flows of
the Company and its subsidiaries for the nine-months ended September 30,
2002, All such financial statements have been prepared in accordance with
United States generally accepted accounting principles consistently applied
(except that such unaudited financial statements do not contain all of the
required footnotes and interim statements do not contain year-end
adjustments), or where different from generally accepted accounting
principles, SEC requirements, and fairly present the consolidated financial
position of the Company and its subsidiaries as of September 30, 2002 and
December 31, 2001, respectively, and the consolidated results of
operations, cash flows and stockholders' equity of the Company and its
subsidiaries for the nine months ended September 30, 2002 and the year
ended December 31, 2001, respectively. Since the date of the Balance Sheet,
(i) there has been no change in the business, assets, liabilities or
condition (financial or otherwise) of the Company and its subsidiaries (on
a consolidated basis) from that reflected in the Balance Sheet except for
changes in the ordinary course of business which in the aggregate have not
been materially adverse and (ii) none of the business, prospects, financial
condition, operations, property or affairs of the Company and its
subsidiaries (on a consolidated basis) has been materially adversely
affected by any occurrence or development, individually or in the
aggregate, whether or not insured against.
The Company does not have any material liability, contingent or otherwise,
not adequately reflected in or reserved against in the aforesaid financial
statements or in the notes thereto.
3.6 Events Subsequent to the Date of the Balance Sheet. Since the date
of the Balance Sheet, the Company has not (i) issued any stock, bond or
other corporate security, (ii) borrowed any amount or incurred or become
subject to any liability (absolute, accrued or contingent), except current
liabilities incurred and liabilities under contracts entered into in the
ordinary course of business, (iii) discharged or satisfied any lien or
encumbrance or incurred or paid any obligation or liability (absolute,
accrued or contingent) other than current liabilitiesshown on the Balance
Sheet and current liabilities incurred since the date of the Balance Sheet
in the ordinary course of business, (iv) declared or made any payment or
distribution to stockholders or purchased or redeemed any share of its
capital stock or other security, (v) mortgaged, pledged, encumbered or
subjected to lien any of its assets, tangible or intangible, other than
liens of current real property taxes not yet due and payable, (vi) sold,
assigned or transferred any of its tangible assets except in the ordinary
course of business, or cancelled any debt or claim, (vii) sold, assigned,
transferred or granted any exclusive license with respect to any patent,
trademark, trade name, service ▇▇▇▇, copyright, trade secret or other
intangible asset, (viii) suffered any loss of property or waived any right
of substantial value whether or not in the ordinary course of business,
(ix) made any change in officer compensation except in the ordinary course
of business and consistent with past practice, (x) made any material change
in the manner of business or operations of the Company, (xi) entered into
any transaction except in the ordinary course of business or as otherwise
contemplated hereby or (xii) entered into any commitment (contingent or
otherwise) to do any of the foregoing.
3.7 Litigation; Compliance with Law. There is no (i) action, suit,
claim, proceeding or investigation pending or, to the best of the Company's
knowledge, threatened against or affecting the Company, any of its
respective properties or assets, or against an officer, employee or holder
of more than 5% of the capital stock of the Company relating to the
business of the Company, at law or in equity, or before or by any federal,
state, municipal or other governmental department, commission, board,
bureau, agency or instrumentality, domestic or foreign (including, without
limitation, an action which directly or indirectly challenges the validity
of this Agreement, or any action taken or to be taken pursuant hereto or
pursuant to any Transaction Document), (ii) arbitration proceeding relating
to the Company pending under collective bargaining agreements or otherwise
or (iii) governmental inquiry pending or, to the best of the Company's
knowledge, threatened against or affecting the Company (including without
limitation any inquiry as to the qualification of the Company to hold or
receive any license or permit), in each case, which would be required to be
disclosed in the Company's periodic reports under the Exchange Act and, to
the best of the Company's knowledge, there is no basis for any of the
foregoing. The Company has not received any opinion or memorandum or legal
advice from legal counsel to the effect that it is exposed, from a legal
standpoint, to any liability or disadvantage which may be material to its
business, prospects, financial condition, operations, property or affairs.
The Company is not in default with respect to any order, writ, injunction
or decree of any court or of any federal, state, municipal or other
governmental department, commission, board, bureau, agency or
instrumentality, domestic or foreign. There is no action or suit by the
Company pending, or threatened or contemplated against others. The
Company has complied in all material respects with all laws, rules,
regulations and orders applicable to its business, operations, properties,
assets, products and services, the Company has all necessary permits,
licenses and other authorizations required to conduct its business as
conducted and as proposed to be conducted, and the Company has been
operating its business pursuant to and in compliance with the terms of all
such permits, licenses and other authorizations. There is no existing law,
rule, regulation or order, and the Company after due inquiry is not aware
of any proposed law, rule, regulation or order, whether federal, state,
county or local, which would prohibit or restrict the Company from, or
otherwise materially adversely affect the Company in, conducting its
business in any jurisdiction in which it is now conducting business or in
which it proposes to conduct business. The foregoing includes, without
limitation, actions pending or, to the knowledge of the Company, threatened
(or any basis therefor) involving the prior employment of any of the
Company's officers or employees or their use in connection with the
Company's business of any information or techniques allegedly proprietary
to any of their former employers.
3.8 Loans and Advances. The Company does not have any outstanding
loans or advances to any person and is not obligated to make any such loans
or advances, except, in each case, for advances to employees of the Company
in respect of reimbursable business expenses anticipated to be incurred by
them in connection with their performance of services for the Company.
3.9 Assumptions, Guaranties, Etc. of Indebtedness of Other Persons.
The Company has not assumed, guaranteed, endorsed or otherwise become
directly or contingently liable on any indebtedness of any other person
(including, without limitation, liability by way of agreement, contingent
or otherwise, to purchase, to provide funds for payment, to supply funds to
or otherwise invest in the debtor, or otherwise to assure the creditor
against loss), except for guaranties by endorsement of negotiable
instruments for deposit or collection in the ordinary course of business.
3.10 Significant Customers and Suppliers. No customer or supplier
which was significant to the Company during the period covered by the
financial statements referred to in Section 3.5 or which has been
significant to the Company thereafter, has terminated, materially reduced
or threatened to terminate or materially reduce its purchases from or
provision of products or services to the Company, as the case may be.
3.11 Governmental Approvals. Subject to the accuracy of the
representations and warranties of the Sellers set forth in Section 4, no
registration or filing with, or consent or approval of or other action by,
any federal, state or other governmental agency or instrumentality is or
will be necessary for the valid execution, delivery and performance by the
Company of this Agreement and the other Transaction Documents, the issuance
and delivery of the Repurchase Stock, the issuance and delivery of the
Notes, or for the performance by the Company of its obligations hereunder
and under the other Transaction Documents other than (i) filings pursuant
to federal and state securities laws (all of which filings have been made
by the Company, other than those which are required to be made after the
Closing and which will be duly made on a timely basis) in connection with
the issuance of the Repurchase Stock and (ii) with respect to the
Registration Rights Agreement, the registration of the shares covered
thereby with the Commission and filings pursuant to state securities laws.
3.12 Certain Agreements of Officers.
(a) The Company is not a party to or obligated in connection with
its business with respect to (i) any contracts with officers, agents,
consultants or advisers or (ii) collective bargaining agreements or
contracts with any labor union or other representative of employees or
any employee benefits provided for by any such agreement.
(b) To the knowledge of the Company, no officer of the Company is
in violation of any term of any employment contract, patent disclosure
agreement, proprietary information agreement, noncompetition
agreement, or any other contract or agreement or any restrictive
covenant relating to the right of any such officer to be employed by
the Company because of the nature of the business conducted or to be
conducted by the Company or relating to the use of trade secrets or
proprietary information of others, and the continued employment of the
Company's officers does not subject the Company or any Seller to any
liability to third parties.
(c) To the knowledge of the Company, no officer of the Company
has expressed any present intention of terminating his employment with
the Company.
3.13 No Insolvency. No insolvency proceeding of any character,
including, without limitation, bankruptcy, receivership, reorganization,
composition or arrangement with creditors, voluntary or involuntary,
affecting the Company or any of its assets or properties, is pending or, to
the knowledge of the Company, threatened. The Company has not taken any
action in contemplation of, or that would constitute the basis for, the
institution of any such insolvency proceedings.
3.14 ERISA. Each "Employee Benefit Plan" (within the meaning of
Section 3(3) of the Employee Retirement Income Security Act of 1974, as
amended ("ERISA")) and each benefit arrangement including any plan,
contract, arrangement or policy providing for severance benefits, insurance
coverage, workers' compensation, disability benefits, vacation benefits,
retirement benefits or for deferred compensation, profit-sharing, bonuses,
stock options, stock appreciation rights or other forms of incentive
compensation or post-retirement insurance, compensation or benefits has
been maintained in substantial compliance with its terms and with the
applicable requirements prescribed by any and all statutes, orders, rules
and regulations, including but not limited to ERISA and the Code. Each
Employee Benefit Plan which is intended to be qualified under Section
401(a) of the Code is so qualified and has been so qualified during the
period from its adoption to date. Neither the Company nor any entity that
would be considered to be under common control with the Company under
Section 414 of the Code maintains or has ever maintained or contributed to
any "multiemployer plan" as defined in Section 3(37) of ERISA or any
Employee Benefit Plan subject to Title IV of ERISA.
3.15 Transactions with Affiliates. Except as contemplated hereby,
there are no loans, leases, royalty agreements or other continuing
transactions between the Company and (a) any officer, employee or director
of the Company, or (b) any Person owning 5% or more of any class of capital
stock of the Company, or (c) any member of the immediate family of such
officer, employee, director or stockholder, or (d) any corporation or other
entity controlled by such officer, employee, director or stockholder or a
member of the immediate family of such officer, employee, director or
stockholder.
3.16 Securities Act of 1933. The Company has complied and will comply
with all applicable federal and state securities laws in connection with
the offer, issuance and delivery of the Repurchase Stock and Notes. Neither
the Company nor anyone acting on its behalf has or will sell, offer to
sell, solicit offers to buy, issue or deliver the Repurchase Stock or
Notes, or solicit offers with respect thereto from, or enter into any
preliminary conversations or negotiations relating thereto with, any
Person, so as to bring the issuance and delivery of Repurchase Stock or
Notes under the registration provisions of the Securities Act and
applicable state securities laws.
3.17 Registration Rights. Except for the rights granted to the Sellers
pursuant to the Registration Rights Agreement, no Person has demand or
other rights to cause the Company to file any registration statement under
the Securities Act relating to any securities of the Company or any right
to participate in any such registration statement.
3.18 Insurance. The Company has in full force and effect fire, general
casualty, and liability insurance covering its properties and business, in
such amounts, and against such losses and risks, as are generally
maintained for comparable businesses and properties.
3.19 Books and Records. The books of account, ledgers, order books,
records and documents of the Company accurately and completely reflect all
material information relating to the business of the Company, the location
and collection of its assets, and the nature of all transactions giving
rise to the obligations or accounts receivable of the Company.
3.20 Title to Assets. The Company has good and marketable title in fee
to such of its fixed assets, if any, as are real property, and good and
marketable title to all of its other assets and properties, free of any
mortgages, pledges, charges, liens, security interests or other
encumbrances of any kind. The Company enjoys peaceful and undisturbed
possession under all leases under which it is operating, and all said
leases are valid and subsisting and in full force and effect.
3.21 Burdensome Restrictions. The Company is not obligated under any
contract or agreement or subject to any charter or other corporate
restriction which materially and adversely affects or in the future may
reasonably be expected to materially adversely affect its financial
condition, results of operations, assets, liabilities or business.
3.22 Computer Programs.
(a) Set forth in the Disclosure Schedule is a list and brief
description of the computer programs (other than off-the-shelf
computer programs) owned, licensed or otherwise used by the Company
that are material in the continued operation of its business as
currently conducted or proposed to be conducted (such computer
programs being referred to herein as the "Company Software"),
identifying with respect to each such Computer Program whether it is
owned, licensed or otherwise used by the Company. The Disclosure
Schedule identifies all material agreements relating to the Company
Software (the "Software Contracts") and further classifies each such
Software Contract under one of the following categories: (A) license
to use third party software; (B) development contract, work-for-hire
agreement, or consulting agreement; (C) distributor, dealer or value
added reseller agreement; (D) license or sublicense to a third party
(including agreements with end-users); (E) maintenance, support or
enhancement agreement; or (F) other.
(b) The computer programs included in the Company Software are
(i) owned by the Company, (ii) currently in the public domain or
otherwise available to the Company without the approval or consent of
any third party, or (iii) licensed or otherwise used by the Company
pursuant to the terms of valid, binding written agreements.
(c) The Company Software owned, designed or developed by the
Company or any of its employees, consultants or agents conforms in all
material respects to the technical specifications for the design,
performance, operation, test, support and maintenance of the Software,
and all other documentation relating to such technical specifications.
No portion of the Company Software sold or licensed by the Company
directly or indirectly to end users contained, on the date of shipment
by the Company, no portion of the Company Software currently for sale
or license directly or indirectly to end users contains, and, to the
knowledge of the Company, no portion of any other Company Software
contains any software routines or hardware components designed to
permit unauthorized access; to disable or erase software, hardware or
data; or to perform any other such actions.
(d) All personnel, including employees, agents, consultants, and
contractors, who have contributed to or participated in the conception
and development of any of the Company Software either (i) have been
party to a "work-for-hire" arrangement or agreement with the Company,
whether in accordance with applicable federal and state law, domestic
or foreign, or otherwise, that has accorded the Company full,
effective, exclusive and original ownership of all tangible and
intangible property thereby arising, or (ii) have executed appropriate
instruments of assignment in favor of the Company as assignee that
have conveyed to the Company full, effective and exclusive ownership
of all tangible and intangible property thereby arising.
3.23 Intellectual Property Rights. The Company owns or possesses or
otherwise has the legally enforceable perpetual right to use, and has the
right to bring actions for infringement of, all intellectual property
rights necessary or required for the conduct of its business as currently
conducted or proposed to be conducted, including all intellectual property
rights pertaining to the Company Software.
3.24 Taxes. The Company has filed all tax returns, federal, state,
county and local, domestic and foreign, required to be filed by it, and the
Company has paid all taxes shown to be due by such returns as well as all
other taxes, assessments and governmental charges which have become due or
payable, including without limitation all taxes which the Company is
obligated to withhold from amounts owing to employees, creditors and third
parties. The Company has established adequate reserves for all taxes
accrued but not yet payable to the extent required by generally accepted
accounting principles. All material tax elections of any type which the
Company has made as of the date hereof are set forth in the audited
financial statements referred to in Section 3.5. No deficiency assessment
with respect to the Company's federal, state, county or local taxes,
domestic and foreign, is pending or, to the knowledge of the Company,
threatened. No proposed adjustment of the Company's federal, state, county,
local taxes, domestic and foreign, is pending or, to the knowledge of the
Company, threatened. There is no tax lien (other than for current taxes not
yet due and payable), whether imposed by any federal, state, county or
local taxing authority, domestic or foreign, outstanding against the
assets, properties or business of the Company. Neither the Company nor any
of its present or former stockholders has ever filed an election pursuant
to Section 1362 of the Internal Revenue Code of 1986 (the "Code"), that the
Company be taxed as an S corporation.
3.25 Disclosure. Neither this Agreement (including any Schedule or
Exhibit to this Agreement) nor the Transaction Documents or any other
agreement, statement, document, certificate or other items prepared or
supplied by the Company with respect to the transactions contemplated
hereby or thereby contains an untrue statement of a material fact or omits
a material fact necessary to make the statements contained herein or
therein not misleading. There is no fact which the Company has not
disclosed to the Sellers and their counsel in writing and of which the
Company is aware which could have a Material Adverse Effect.
3.26 Additional Information. The Company has filed in a timely manner
all documents that the Company was required to file under the Exchange Act
during the 12 months preceding the date of this Agreement. The following
documents complied in all material respects with the requirements of the
Exchange Act as of their respective filing dates, and the information
contained therein was true and correct in all material respects as of the
date of such documents, and each of the following documents as of the date
thereof did not contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make
the statements therein, in light of the circumstances under which they were
made, not misleading:
(a) The Company's Annual Report on Form 10-K for the year ended
December 31, 2001;
(b) The Company's Quarterly Reports on Form 10-Q for the quarters
ended March 31, 2002, June 30, 2002 and September 30, 2002; and
(c) all other documents, if any, filed by the Company with the
Securities and Exchange Commission (the "Commission") since the filing
of the Quarterly Report on Form 10-Q for the fiscal quarter ended
September 30, 2002 pursuant to the reporting requirements of the
Exchange Act.
4. Covenants. The Company, together with its subsidiaries, covenants and
agrees with each of the Sellers that:
(a) The affirmative vote of both of the directors designated by
▇▇▇▇▇▇, ▇▇▇▇▇▇▇ Strategic Partners Fund, L.P. and Strategic Associates
L.P. pursuant to the terms of the Stockholders' Agreement shall be
required to (i) amend or modify the terms of the Restated Charter; and
(ii) issue any series of preferred stock, or other securities of the
Company, which has preference or priority over the Common Stock as to
the right to receive either dividends or amounts distributable upon
liquidation, dissolution, or winding up of the Company.
(b) The membership of each committee of the Company's Board of
Directors shall include one of the directors designated by ▇▇▇▇▇▇,
▇▇▇▇▇▇▇ Strategic Partners Fund, L.P. and Strategic Associates L.P.
(c) The next annual meeting of the stockholders of the Company
shall include a vote to approve an amendment to the Restated Charter
to eliminate the terms of the Series A Preferred.
(d) The Company shall maintain and cause each of its subsidiaries
(if any) to maintain, their respective corporate or legal existence,
rights and franchises in full force and effect.
(e) The Company shall maintain and cause each of its subsidiaries
(if any) to maintain as to their respective properties and business,
with financially sound and reputable insurers, insurance against such
casualties and contingencies and of such types and in such amounts as
is customary for companies similarly situated, which insurance shall
be deemed by the Company to be sufficient.
(f) Neither the Company nor any of its subsidiaries shall become
a party to any agreement which by its terms restricts the Company's
performance of this Agreement, the other Transaction Documents or the
Restated Charter.
(g) Except for transactions contemplated by this Agreement or as
otherwise approved by the Board of Directors, neither the Company nor
any of its subsidiaries shall enter into any transaction with any
director, officer, employee or holder of more than 5% of the
outstanding capital stock of any class or series of capital stock of
the Company or any of its subsidiaries, member of the family of any
such person, or any corporation, partnership, trust or
other entity in which any such person, or member of the family of any
such person, is a director, officer, trustee, partner or holder of
more than 5% of the outstanding capital stock thereof, except for
transactions on customary terms related to such person's employment.
(h) The Company shall promptly reimburse in full all directors of
the Company who are not employees of the Company for all of his or her
reasonable out-of-pocket expenses incurred in attending each meeting
of the Board of Directors of the Company or any Committee thereof.
(i) The Company shall use its best efforts to ensure that
meetings of its Board of Directors are held at least four times each
year and at least once each quarter.
(j) The Company shall comply, and cause each subsidiary to
comply, with all applicable laws, rules, regulations and orders,
noncompliance with which could materially adversely affect its
business or condition, financial or otherwise.
(k) The Company shall keep, and cause each subsidiary to keep,
adequate records and books of account, in which complete entries will
be made in accordance with generally accepted accounting principles
consistently applied, reflecting all financial transactions of the
Company and such subsidiary, and in which, for each fiscal year, all
proper reserves for depreciation, depletion, obsolescence,
amortization, taxes, bad debts and other purposes in connection with
its business shall be made.
(l) The transactions contemplated by this Agreement are intended
to qualify as a reorganization within the meaning of Section 368(a) of
the Code, and the Company shall not take any action inconsistent with
such treatment.
5. Representations and Warranties of the Sellers. Each Seller, severally
and not jointly, represents and warrants to the Company as follows:
(a) Each Seller has good title to such Seller's shares of Series
A Preferred, free and clear of all liens, security interests and
adverse interests in favor of any person or entity.
(b) (i) It will acquire the Repurchase Stock and the Note to be
acquired by it for its own account and that the Repurchase Stock and
the Note are being and will be acquired by it for the purpose of
investment and not with a view to distribution or resale thereof; (ii)
it is an "accredited investor" within the meaning of Rule 501 of
Regulation D promulgated under the Securities Act and was not
organized for the specific purpose of acquiring the Repurchase Stock
or Note; (iii) it has taken no action which would give rise to any
claim by any other person for any brokerage commissions, finders' fees
or the like relating to this Agreement or the transactions
contemplated hereby; (iv) it has sufficient knowledge and experience
in investing in companies similar to the Company in terms of the
Company's stage of development so as to be able to evaluate the risks
and merits of its investment in the Company and it is able financially
to bear the risks thereof; (v) without limiting the representations or
warranties of the Company in Section 3 hereof, it has had an
opportunity to discuss the Company's business, management and
financial affairs with the Company's management, and it has been
furnished with copies of documents which it has requested, and (vi) it
is making the decision to acquire the Repurchase Stock and the Note in
the jurisdiction set forth in its address on Schedule I.
(c) (i) It has full right, power, authority and capacity to enter
into the Agreement and the other Transaction Documents and to
consummate the transactions contemplated hereby and thereby and has
taken all necessary action to authorize the execution, delivery and
performance of the Agreement and the other Transaction Documents, and
(ii) upon the execution and delivery of the Agreement and the other
Transaction Documents, the Agreement and the other Transaction
Documents to which it is a party shall constitute a valid and binding
obligation of the Seller enforceable in accordance with their
respective terms, except as enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or
similar laws affecting creditors' and contracting parties' rights
generally and except as enforceability may be subject to general
principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law) and except as the
indemnification agreements of the Seller herein may be legally
unenforceable.
(d) It understands and agrees that, until registered under the
Securities Act or transferred pursuant to the provisions of Rule 144
as promulgated by the SEC, all certificates evidencing any of the
Repurchase Stock, whether upon initial issuance or upon any transfer
thereof, shall bear a legend, prominently stamped or printed thereon,
reading substantially as follows, together with any legends that may
be required under applicable state securities laws:
"The securities represented by this certificate have not
been registered under the Securities Act of 1933 or applicable
state securities laws. These securities have been acquired for
investment and not with a view to distribution or resale, and may
not be sold, mortgaged, pledged, hypothecated or otherwise
transferred [for non U.S. persons add: in the United States or to
U.S. persons] without an effective registration statement for
such securities under the Securities Act of 1933 and applicable
state securities laws, or the availability of an exemption from
the registration provisions of the Securities Act of 1933 and
applicable state securities laws."
6. Conditions to the Obligations of the Sellers. The obligation of each
Seller under this Agreement is subject to the fulfillment to the Seller's
satisfaction, or the waiver by such Seller, of each of the conditions set forth
in this Section 6 on or before the Closing Date.
6.1 Accuracy of Representations and Warranties. Each of the
representations and warranties of the Company set forth in Section 3 hereof
shall be true and correct on the date of the Closing.
6.2 Performance. All covenants, agreements and conditions contained in
this Agreement to be performed or complied with by the Company at or prior
to the Closing shall have been performed or complied with by the Company.
6.3 Documents; Corporate Approvals. The Sellers shall have received
prior to or at the Closing all of the following documents or instruments,
or evidence of completion thereof, each in form and substance satisfactory
to the Sellers and their counsel:
(a) A copy of the Restated Charter, certified by the Secretary of
State of the State of Delaware together with a certified copy of the
Certificate of Designations, a copy of the resolutions of the Board of
Directors evidencing the approval of this Agreement and the other
Transaction Documents, the issuance of the Repurchase Stock and Notes
and the other matters contemplated hereby and thereby, and a copy of
the By-laws of the Company, all of which shall have been certified by
the Secretary of the Company to be true, complete and correct in every
particular, and certified copies of all documents evidencing other
necessary corporate or other action and governmental approvals, if
any, with respect to this Agreement, the Repurchase Stock and the
Notes.
(b) An opinion of ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to the Company,
in the form set forth in Exhibit C.
(c) A certificate of the Secretary or an Assistant Secretary of
the Company which shall certify the names of the officers of the
Company authorized to sign the Transaction Documents, the certificates
for the Repurchase Stock, the Notes and the other documents,
instruments or certificates to be delivered pursuant to this Agreement
by the Company or any of its officers, together with the true
signatures of such officers. The Sellers may conclusively rely on such
certificate until they shall receive a further certificate of the
Secretary or an Assistant Secretary of the Company canceling or
amending the prior certificate and submitting the signatures of the
officers named in such further certificate.
(d) A certificate of the President of the Company stating that
the representations and warranties of the Company contained in Section
3 hereof and otherwise made by the Company in writing in connection
with the transactions contemplated hereby are true and correct and
that all conditions required to be performed prior to or at the
Closing have been performed as of the Closing.
(e) The Stockholders' Agreement in the form set forth in Exhibit
D shall have been duly executed and delivered by the parties named
therein.
(f) The Registration Rights Agreement in the form set forth in
Exhibit E shall have been duly executed and delivered by the parties
named therein.
(g) Certificates of Good Standing for the Company from the
Secretaries of State of Delaware, Massachusetts, Rhode Island,
Vermont, Maine, New Jersey, New York, Pennsylvania and all other
jurisdictions in which the Company is qualified to do business as a
foreign corporation.
(h) The Sellers, the Company and DVI Business Credit Corporation
shall have duly executed and delivered a Subordination Agreement in
the form set forth in Exhibit F.
(i) The Company shall have duly executed and delivered a Note to
each Seller in the form set forth in Exhibit A.
6.4 Payment of Costs. The Company shall have paid for the costs,
expenses, taxes and filing fees as required in Section 10.
6.5 Board of Directors. The Board of Directors of the Company
following the Closing shall consist of seven (7) members, of which the
members shall be: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇.
Each committee of the Board of Directors shall include either ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇ or ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ as one of its members.
6.6 Sellers' Participation. All Sellers specified on Schedule I hereto
shall participate in the transactions contemplated hereby.
6.7 Consents, Waivers, Etc. Prior to the Closing, the Company shall
have obtained all consents or waivers, if any, necessary to execute and
deliver this Agreement, issue the Repurchase Stock and the Notes and to
carry out the transactions contemplated hereby and thereby, and all such
consents and waivers shall be in full force and effect. All corporate and
other action and governmental filings necessary to effectuate the terms of
this Agreement, the Repurchase Stock and the Notes and other agreements and
instruments executed and delivered by the Company in connection herewith
shall have been made or taken, except for any post-sale filing that may be
required under federal or state securities laws. In addition to the
documents set forth above, the Company shall have provided to the Sellers
any other information or copies of documents that they may reasonably
request.
7. Conditions to the Obligations of the Company. The obligation of the
Company under this Agreement is subject to the fulfillment to the Company's
satisfaction, or the waiver in writing by the Company, of each of the conditions
set forth in this Section 7 on or before each Closing Date.
7.1 Accuracy of Representations and Warranties. Each of the
representations and warranties of the Sellers set forth in Section 4 hereof
shall be true and correct on the date of the Closing.
7.2 Performance. All covenants, agreements and conditions contained in
this Agreement to be performed or complied with by the Sellers at or prior
to the Closing shall have been performed or complied with by the Sellers.
7.3 Approvals. The Company shall have received prior to or at Closing
from each Seller a certificate of an authorized person of such Seller
stating that the representations and warranties of such Seller contained in
Section 4 hereof and otherwise made by such Seller in writing in connection
with the transactions contemplated hereby are true and correct and that all
conditions required to be performed prior to or at the Closing have been
performed as of the Closing.
7.4 Stockholders' Agreement, Registration Rights Agreement and
Subordination Agreement. The Stockholders' Agreement, Registration Rights
Agreement and Subordination Agreement shall have been duly executed and
delivered by the Sellers.
7.5 Sellers' Participation. All Sellers specified on Schedule I hereto
shall participate in the transactions contemplated hereby.
8. Successors and Assigns. The provisions of this Agreement shall bind and
inure to the benefit of the respective successors and permitted assigns of the
parties hereto.
9. Survival of Representations and Warranties. All representations and
warranties shall survive and remain in full force and effect after the Closing
with respect to the Company.
10. Costs, Expenses and Taxes. The Company agrees to pay in connection with
the preparation, execution and delivery of this Agreement and the other
Transaction Documents and the issuance of the Repurchase Stock and the Notes,
the reasonable fees and out-of-pocket expenses collectively of ▇▇▇▇▇, ▇▇▇▇▇▇▇ &
▇▇▇▇▇▇▇▇▇, LLP, special counsel for the Sellers. In addition, the Company shall
pay any and all stamp and similar transfer taxes payable or determined to be
payable in connection with the execution and delivery of this Agreement and the
Transaction Documents, the issuance of the Repurchase Stock and the Notes and
the other instruments and documents to be delivered hereunder or thereunder, and
agrees to save the Sellers harmless from and against any and all liabilities
with respect to or resulting from any delay in paying or omission to pay such
taxes.
11. Notices. All notices, requests, consents and other communications under
this Agreement shall be in writing (including facsimile communication) and shall
be delivered by hand, by telecopier, by express overnight courier service or
mailed by first class mail, postage prepaid, and shall be given,
if to Company, to:
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: President Fax: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ Fax: (▇▇▇) ▇▇▇-▇▇▇▇
if to any Seller, to:
To the applicable address and fax number set forth in
Schedule I.
with a copy to:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, LLP
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ Fax: (▇▇▇) ▇▇▇-▇▇▇▇
or at such other address as to which such party may inform the other parties in
writing in compliance with the terms of this Section.
Notices provided in accordance with this Section 11 shall be deemed
delivered upon personal delivery, receipt by telecopy, or overnight mail, or 48
hours after deposit in the mail in accordance with the above.
12. Brokers. The Company and the Sellers (i) represent and warrant to the
other that they have retained no finder or broker in connection with the
transactions contemplated by this Agreement, and (ii) shall indemnify and hold
harmless the other from and against any and all claims, liabilities, or
obligations with respect to brokerage or finders' fees or commissions or
consulting fees in connection with the transactions contemplated by this
Agreement, asserted by any person on the basis of any statement or
representation alleged to have been made by such indemnifying party.
13. Entire Agreement. This Agreement, together with the instruments and
other documents hereby contemplated to be executed and delivered in connection
herewith, contains the entire agreement and understanding of the parties hereto,
and supersedes any prior agreements or understandings between or among them,
with respect to the subject matter hereof, including the Series A Convertible
Preferred Stock Purchase Agreement dated November 6, 1996, which will be of no
further force or effect.
14. Amendments and Waivers. Except as otherwise expressly set forth in this
Agreement, any term of this Agreement may be amended and the observance of any
term of this Agreement may be waived (either generally or in a particular
instance and either retroactively or prospectively), with the written consent of
the Company and holders of at least a majority of the
outstanding Repurchase Stock. No waivers of or exceptions to any term, condition
or provision of this Agreement, in any one or more instances, shall be deemed to
be, or construed as, a further or continuing waiver of any such term, condition
or provision.
15. Counterparts. This Agreement may be executed in several counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument. A facsimile signature shall constitute
an original signature hereto.
16. Captions. The captions of the sections, subsections and paragraphs of
this Agreement have been added for convenience only and shall not be deemed to
be a part of this Agreement.
17. Severability. Each provision of this Agreement shall be interpreted in
such manner as to validate and give effect thereto to the fullest lawful extent,
but if any provision of this Agreement is determined by a court of competent
jurisdiction to be invalid or unenforceable under applicable law, such provision
shall be ineffective only to the extent so determined and such invalidity or
unenforceability shall not affect the remainder of such provision or the
remaining provisions of this Agreement.
18. Waiver of Preemptive Rights. The Sellers representing the holders of at
least a majority in interest of the Series A Preferred hereby by waive any
rights of first refusal pursuant to Article VI of the Series A Convertible
Preferred Stock Purchase Agreement dated as of November 6, 1996, including any
notice requirements related thereto, with respect to the issuance and sale of
the Repurchase Stock.
19. Governing Law. This Agreement shall be governed by and interpreted and
construed in accordance with the laws of the State of Delaware. Each of the
parties hereby irrevocably submits to the jurisdiction of any United States
federal court sitting in the State of Delaware (or, if such court shall not
accept such jurisdiction, any state court sitting in Delaware) in any action,
suit or proceeding brought against it by the other party under this Agreement.
[Remainder of page intentionally left blank]
IN WITNESS WHEREOF, the Company and the Sellers have executed this
Agreement as of the day and year first above written.
OCCUPATIONAL HEALTH + REHABILITATION INC
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
------------------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇
----------------------------------------------
Title: Chief Financial Officer
---------------------------------------------
SELLERS:
▇▇▇▇▇▇, ▇▇▇▇▇▇▇ STRATEGIC PARTNERS FUND, L.P.
By: ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ Strategic Partners, L.P.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------------------------
Title: General Partner
-----------------------------------------------
STRATEGIC ASSOCIATES, L.P.
By: ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ Strategic Partners, L.P.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------------------------
Title: General Partner
-----------------------------------------------
AXA U.S. GROWTH FUND LLC
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------------------------------
Title: Managing Member
----------------------------------------------
PANTHEON GLOBAL PCC LIMITED
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇
-------------------------------------------------
Title: Alternate Director
----------------------------------------------
DOUBLE BLACK DIAMOND II, LLC
By: /s/▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------------------------------
Title: Managing Member
-----------------------------------------------
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-----------------------------------------------------
▇▇▇▇▇▇▇ Worms, signed by ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
pursuant to a power of attorney
THE VENTURE CAPITAL FUND OF NEW ENGLAND III, L.P.
By: FH & Co. III, L.P., its General Partner
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-------------------------------------------------
Title: General Partner
----------------------------------------------
BANCBOSTON VENTURES, INC.
By: /s/▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-------------------------------------------------
Title: Vice President
----------------------------------------------
VENROCK ASSOCIATES
VENROCK ASSOCIATES II, L.P.
By: /s/▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------------------------
Title: General Partner
---------------------------------------------
ASSET MANAGEMENT ASSOCIATES, 1989, L.P.
By: AMC Partners 89, L.P., General Partner
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------------------------
Title: General Partner
----------------------------------------------
SCHEDULE I
Series A Shares of
Name and Preferred Repurchase
Address of Sellers Shares Cash Notes Stock
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▇▇▇▇▇▇, ▇▇▇▇▇▇▇ Strategic 679,042 $1,294,049.41 $1,294,049.41 770,871
Partners Fund, L.P.
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with copy to:
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HLM Management
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Strategic Associates, L.P. 37,625 71,701.91 $71,701.91 42,713
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with copy to:
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HLM Management
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AXA U.S. Growth Fund LLC 86,667 165,161.18 $165,161.18 98,387
c/o Partech International
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Pantheon Global PCC Limited 173,334 330,322.37 $330,322.37 196,775
Pantheon Ventures, Inc.
Transamerica Center
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Double Black Diamond II, LLC 16,667 $31,762.28 $31,762.28 18,921
c/o Partech International
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Series A Shares of
Name and Preferred Repurchase
Address of Sellers Shares Cash Notes Stock
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▇▇▇▇▇▇▇ Worms 6,665 $12,701.48 $12,701.48 7,566
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Asset Management Associates, 83,333 $158,807.58 $158,807.58 94,602
1989, L.P.
Alloy Ventures
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Venrock Associates 66,667 $127,047.21 $127,047.21 75,683
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Venrock Associates II, L.P. 100,000 $190,569.86 $190,569.86 113,523
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The Venture Capital Fund of 66,667 $127,047.21 $127,047.21 75,683
New England, III, L.P.
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BancBoston Ventures, Inc. 100,000 $190,569.86 $190,569.86 113,523
BancBoston Capital
Mail Stop: ▇▇ ▇▇ ▇▇▇▇▇▇
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TOTAL 1,416,667 $2,699,740.35 $2,699,740.35 1,608,247
EXHIBIT A
FORM OF PROMISSORY NOTE
EXHIBIT B
DISCLOSURE SCHEDULE
EXHIBIT C
OPINION OF ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP
EXHIBIT D
AMENDED AND RESTATED STOCKHOLDERS AGREEMENT
EXHIBIT E
AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
SUBORDINATION AGREEMENT