Exhibit 10.43
AMENDMENT NO. 2 TO STOCKHOLDERS AGREEMENT
AMENDMENT NO. 2 TO STOCKHOLDERS AGREEMENT, dated as of November 19,
1999 (the "Amendment No. 2"), by and among Select Medical Corporation, a
Delaware corporation (the "Company"), the stockholders of the Company whose
names appear in Schedule I annexed hereto (collectively, the "Stockholders"),
amending the Stockholders Agreement dated as of February 5, 1997, as amended on
December 15, 1998 (the "Agreement") by and among the Company and the
Stockholders.
WHEREAS, the Company and certain of the Stockholders (the "November
1999 Investors") are parties to a Securities Purchase Agreement dated as of
November 19, 1999 (the "Securities Purchase Agreement"), providing, among other
things, for the sale to such November 1999 Investors of an aggregate 1,667,000
shares pursuant to the Securities Purchase Agreement (the "November 1999 Common
Shares") of the Company's Common Stock, par value $.01 (the "Common Stock") and
16,000,000 shares of the Company's Class B Preferred Stock, par value $.01 (the
"Class B Preferred" together with the November 1999 Common, the "November 1999
Shares"); and
WHEREAS, the Company and the Stockholders entered into the Agreement
in order, among other things, to specify certain rights and obligations of each
of the parties thereto with respect to the shares of Common Stock held by each
of them; and
WHEREAS, the Agreement may be amended by the written consent of the
Company and the Stockholders; and
WHEREAS, the Company and the Stockholders now desire to amend the
Agreement in the manner set forth below in order, among other things, to include
the November 1999 Shares as "Stockholder Shares" under the Agreement;
NOW THEREFORE, in consideration of the mutual covenants and agreements
contained herein and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
Section 1. Definitions; References. Unless otherwise specifically
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defined herein, each term used herein which is defined in the Agreement shall
have the meaning assigned to such term in the Agreement. Each reference to
"hereof" "hereunder," "herein," and "hereby" and each other similar reference
and each reference to "this Agreement" and each other similar reference
contained in the Agreement shall from and after the date hereof refer to the
Agreement as amended by this Amendment No. 2.
Section 2. Stockholder Shares. For purposes of the Agreement, the
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November 1999 Common Shares shall be deemed to be included in the term "Common
Stock" and the November 1999 Shares shall be deemed to be included in the term
"Stockholder Shares."
Section 3. Amendment to Second Unnumbered Paragraph. The first
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sentence of the second unnumbered paragraph of the Agreement is hereby amended
to read in its entirety as follows:
"Certain of the Investors will purchase shares of the Company's Common
Stock, par value $.01 per share (the "February 1997 Common"), and the
Company's Class A Preferred Stock (the "Class A Preferred"), pursuant to a
Purchase Agreement, dated as of February 5, 1997 (the "1997 Purchase
Agreement"), among the Company and such Investors. Certain of the
Investors and the Additional Stockholders (as such term is defined in
Amendment No. 1 to Stockholders Agreement dated as of December 15, 1998
among the Company and the parties thereto ("Amendment No. 1")) will also
purchase shares of the Company's Common Stock, par value $.01 per share
(the "December 1998 Common") pursuant to a Securities Purchase Agreement,
dated as of December 15, 1998 (the "1998 Purchase Agreement") among the
Company, such Investors and the Additional Stockholders. Certain of the
Stockholders (as such term is defined in Amendment No. 2 to the
Stockholders Agreement dated as of December 15, 1998, as amended, among the
Company and the parties thereto ("Amendment No. 2") will also purchase
shares of the Company's Common Stock, par value $.01 per share
(collectively with the February 1997 Common and the December 1998 Common,
the "Common Stock") and shares of the Company's Class B Preferred Stock,
par value $.01 per share (the "Class B Preferred") pursuant to a Securities
Purchase Agreement dated as of November 19, 1999 (the "1999 Purchase
Agreement" and collectively with the 1997 Purchase Agreement and the 1998
Purchase Agreement, the "Purchase Agreements" or "Purchase Agreement"),
among the Company and such Stockholders.
Section 4. Amendment to Fourth Unnumbered Paragraph. The fourth
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unnumbered paragraph of the Agreement is hereby amended to read in its entirety
as follows:
"The execution and delivery of this Agreement is a condition
to certain of the Investors' purchase of Common Stock and Class A
Preferred pursuant to the 1997 Purchase Agreement. The execution
and delivery of Amendment No. 1 is a condition to the purchase by
certain of the Investors and the Additional Stockholders of
Common Stock pursuant to the 1998 Purchase Agreement. The
execution and delivery of Amendment No. 2 is a condition to the
purchase by certain Stockholders of Common Stock and Class B
Preferred pursuant to the 1999 Purchase Agreement."
Section 5. Effect of Amendment. Except as expressly provided in this
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Amendment No. 2, nothing herein shall affect or be deemed to affect any
provisions of the Agreement, and except only to the extent that they may be
varied hereby, all of the terms of the Agreement shall remain unchanged and in
full force and effect.
Section 6. Applicable Law. This Amendment No. 2 shall be construed
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and enforced in accordance with, and the rights of the parties shall be governed
by, the laws of the State of Delaware without reference to the principles of
conflicts of law.
Section 7. Counterparts. This Amendment No. 2 may be executed in
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counterparts, all of which together shall constitute one agreement binding on
all the parties hereto, notwithstanding that all such parties are not
signatories to the original or the same counterpart. Each party shall become
bound by this Amendment No. 2 immediately upon affixing such party's signature
hereto.
IN WITNESS WHEREOF, the Company and the Stockholders have executed
this Amendment No. 2 as of the day and year first above written.
SELECT MEDICAL CORPORATION
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
STOCKHOLDERS:
GOLDER, THOMA, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ FUND V, L.P.
By GTCR V, L.P., General Partner
By Golder, Thoma, Cressey, Rauner, Inc., General
Partner
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title:
WELSH, CARSON, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ VII, L.P.
By WCAS VII Partners, L.P., General Partner
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Title: General Partner
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▇▇▇▇▇▇▇▇ Rather
as Attorney-in-Fact
DELAWARE CHARTER TRUST CO., AS TRUSTEE FOR THE
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ANVERS II, L.P.
By /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title:
GTCR VI EXECUTIVE FUND, L.P.
By GTCR Partners VI, L.P., General Partner
By GTCR ▇▇▇▇▇▇ ▇▇▇▇▇▇, L.L.C., General Partner
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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Name:
Its: Principal
GTCR ASSOCIATES VI
By GTCR Partners VI, L.P., Managing General
Partner
By GTCR ▇▇▇▇▇▇ ▇▇▇▇▇▇, L.L.C., General Partner
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Name:
Its: Principal
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▇▇▇▇▇ ▇▇▇▇▇▇▇ FRIENDS FUND VI, L.P.
By TC Partners VI, L.P. General Partner
By ▇▇▇▇▇ ▇▇▇▇▇▇▇ Equity Partners, Inc. General
Partner
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Name:
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