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Exhibit 10.4
EXHIBIT A
AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
Amended and Restated Registration Rights Agreement, dated as
of July 19, 1996 ("Agreement"), among Medifax, Inc., a Missouri corporation (the
"Company"), and the persons listed on the signature pages hereto (the
"Purchasers").
On the date hereof the Company is consummating the
transactions contemplated by (i) a Transfer Agreement and Plan of Section 351
Exchange (the "Exchange Agreement") with the stockholders (the "MRC Holders") of
Medical Records Corp., an Ohio corporation ("MRC"), pursuant to which an
aggregate 4,077,547 shares of Common Stock, $.01 par value ("Common Stock"), of
the Company, will be issued to the MRC Holders, and (ii) a Stock Purchase
Agreement, dated as of July 19, 1996 (the "Series VI Purchase Agreement"), among
the Company and certain of the Purchasers, which Purchasers are listed on
Schedule I thereto, pursuant to which such Purchasers are purchasing from the
Company an aggregate 261,050 shares (the "First Closing Series VI Shares") of
Series VI Preferred Stock, $1.00 par value (the "Series VI Preferred Stock"), of
the Company. The Company proposes to issue an additional 38,950 shares (the
"Second Closing Series VI Shares"; and together with the First Closing Series VI
Shares, the "Series VI Shares") of Series VI Preferred Stock to certain of the
Purchasers, which Purchasers are listed on Schedule II to the Series VI Purchase
Agreement, pursuant to such Agreement.
Medifax and certain of the Purchasers (the "Original
Purchasers") entered into a Registration Rights Agreement, dated July 7, 1993,
which was amended by an Amendment to Registration Rights Agreement, dated as of
December 2, 1994 (such agreement, as so amended, being herein called the
"Original Agreement"), among Medifax, the Original Purchasers and ▇▇▇▇▇▇ ▇.
▇▇▇▇▇ (who also shall be deemed an "Original Purchaser" hereunder); the Original
Agreement provides, among other things, for certain restrictions on the transfer
of Restricted Stock (as such term is defined therein) and for the registration,
under certain circumstances, of such Restricted Stock under the Securities Act
of 1933, as amended.
The Company and the Purchasers desire to amend the
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Original Agreement to include all of the Series VI Preferred Stock in the
definition of "Restricted Stock" and to provide that (i) the holders from time
to time of the shares of Common Stock issuable upon conversion of the Series VI
Shares and (ii) the MRC Holders shall have certain of the same rights and
obligations as the other holders of Restricted Stock under the Original
Agreement, as amended and restated hereby.
In consideration of the foregoing, the parties agree as
follows:
1. This will confirm that (a) in respect of ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇, M.D., IASD Health Services, Inc., FBL Ventures of South Dakota, N.F.
Nordiska Fondkommission A.B., ▇▇▇▇▇▇ ▇▇▇▇ Fondkommission A.B., Edgewater Private
Equity Fund, L.P., Ventana Partnership III, L.P, Andex, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ Invest A/S and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ (collectively, the
"Series IV Holders"), that in consideration of your agreement to accept the
provisions of this Agreement in complete satisfaction of the requirements of the
letter dated February 5, 1993 to each of you with respect to an aggregate 10,362
shares of Series IV Preferred Stock, $1.00 par value ("Series IV Preferred
Stock"), of Medifax, Inc., a Missouri corporation (the "Company"), (b) in
respect of ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, M.D. and ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
(collectively, the "1991 Warrantholders"), that in consideration of your
agreement to accept the provisions of this Agreement in complete satisfaction of
the registration requirements of the Warrants (the "1991 Warrants") to purchase
up to an aggregate 229,775 shares of Common Stock, $1.00 par value ("Common
Stock"), of the Company, (c) in respect of the several purchasers (the "1993
Purchasers") named in Annex I to the Securities Purchase Agreement, dated as of
July 7, 1993 (the "1993 Purchase Agreement"), among the Company and the 1993
Purchasers, in consideration of the purchase by you of (i) an aggregate 45,902
shares of Series V Preferred Stock, $1.00 par value ("Series V Preferred
Stock"), of the Company, and (ii) stock purchase warrants (the "1993 Warrants"
and, collectively with the 1991 Warrants, the "Warrants") to purchase up to an
aggregate 270,187 shares of Common Stock of the Company, and as an inducement to
you to consummate the transactions contemplated by the 1993 Purchase Agreement,
(d) in respect of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, M.D., ▇▇▇ ▇. ▇▇▇▇▇, M.D., ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
M.D., ▇▇▇▇ ▇. ▇▇▇▇, Rich Investments, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, M.D., ▇▇▇▇▇ ▇. ▇▇▇▇▇▇,
▇▇., ▇▇▇▇ ▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, M.D., ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇.
▇▇▇▇▇, M.D., ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇., ▇▇▇▇▇ Family Partners, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇.,
M.D., ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, M.D., ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, M.D., ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, III, ▇▇▇▇▇▇▇ ▇. and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Dr. and ▇▇▇. ▇▇▇▇▇▇▇
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▇▇▇▇▇▇▇, Sr., ▇▇▇▇ ▇. and ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ (collectively,
the "Post-1991 Founders"), as owners of up to an aggregate 331,590 shares of
Common Stock ("Post-1991 Founders Stock"), (e) in respect of ▇▇▇▇ ▇. ▇▇▇▇▇▇,
Ph.D., as owner of up to an aggregate 964,530 shares of Common Stock (said
shares of Common Stock and Post-1991 Founders Stock being collectively referred
to herein as "Founders Stock"), in consideration of the covenants and agreements
made by ▇▇. ▇▇▇▇▇▇ in Section 5.02 of the 1993 Purchase Agreement, and as an
inducement to ▇▇. ▇▇▇▇▇▇ to consummate the transactions contemplated thereby,
(f) in respect of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, in consideration of the sale by you of all of
the outstanding capital stock of SecrePhone Ltd. and as an inducement to you to
consummate the transactions contemplated by the Securities Purchase Agreement,
dated as of December 2, 1994, between the Company and you, (g) in respect of the
MRC Holders, in consideration of the transfer by you of the MRC Stock and as an
inducement to you to consummate the transactions contemplated by the Exchange
Agreement, and (h) in respect of the purchasers of the Series VI Shares, in
consideration of the purchase by you of the Series VI Shares and as an
inducement to you to consummate the transactions contemplated by the Series VI
Purchase Agreement, the Company hereby covenants and agrees with each of you,
and with each subsequent holder of Restricted Stock (as such term is defined
herein), as follows:
2. CERTAIN DEFINITIONS. As used herein, the following terms
shall have the following respective meanings:
"COMMISSION" shall mean the Securities and Exchange
Commission, or any other federal agency at the time administering the
Securities Act.
"COMMON STOCK" shall mean the Common Stock, $0.01 par value,
of the Company, as constituted as of the date of this Agreement,
subject to adjustment pursuant to the provisions of Section 11 hereof.
"CONVERSION SHARES" shall mean shares of Common Stock issued
upon conversion of the Preferred Stock.
"EXCHANGE ACT" shall mean the Securities Exchange Act of 1934
or any similar federal statute, and the rules and regulations of the
Commission thereunder, all as the same shall be in effect at the time.
"PREFERRED STOCK" shall mean the Series IV Preferred
Stock, the Series V Preferred Stock and the Series VI Pre-
ferred Stock.
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"REGISTRATION EXPENSES" shall mean the expenses so
described in Section 9 hereof.
"RESTRICTED ▇▇▇▇ ▇▇▇▇▇" shall mean the 1991 Warrants and the
Warrant Shares issued upon exercise of the 1991 Warrants.
"RESTRICTED 1992 STOCK" shall mean all shares of Series IV
Preferred Stock and the Conversion Shares issued upon the conversion
thereof.
"RESTRICTED 1993 STOCK" shall mean all shares of Series V
Preferred Stock, Conversion Shares issued upon conversion of the Series
V Preferred Stock, the 1993 Warrants and Warrant Shares issued upon
exercise of the 1993 Warrants.
"RESTRICTED STOCK" shall mean any shares of capital stock of
the Company, the certificates for which are required to bear the legend
set forth in Section 3 hereof.
"▇▇▇▇▇ OPTIONS" shall mean the options of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ to
acquire Common Stock of the Company as such options exist on the date
hereof.
"▇▇▇▇▇ OPTION SHARES" shall mean those shares of Common Stock
issuable to ▇▇. ▇▇▇▇▇ upon the exercise of the ▇▇▇▇▇ Options.
"▇▇▇▇▇ SHARES" shall mean those shares of Common Stock held by
▇▇▇▇▇▇ ▇. ▇▇▇▇▇ on the date hereof as well as the ▇▇▇▇▇ Option Shares.
"SECURITIES ACT" shall mean the Securities Act of 1933 or any
similar federal statute, and the rules and regulations of the
Commission thereunder, all as the same shall be in effect at the time.
"SELLING EXPENSES" shall mean the expenses so described
in Section 9 hereof.
"SPECIAL RESTRICTED STOCK" shall mean all shares of Series V
and Series VI Preferred Stock, Conversion Shares issued upon conversion
of the Series V and Series VI Preferred Stock, the 1993 Warrants and
Warrant Shares issued
upon exercise of the 1993 Warrants.
"WARRANT SHARES" shall mean shares of Common Stock
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issued upon exercise of the Warrants.
3. RESTRICTIVE LEGEND. Each certificate representing the
Common Stock (including, without limitation, Founders Stock, ▇▇▇▇▇ Shares and
the shares of Common Stock held by the MRC Holders), or Preferred Stock, each
certificate issued upon exchange or transfer of any Common Stock or Preferred
Stock, each certificate representing Conversion Shares or Warrant Shares or
▇▇▇▇▇ Option Shares and each certificate issued upon exchange or transfer of any
Conversion Shares or Warrant Shares or ▇▇▇▇▇ Option Shares, other than in a
public sale or as otherwise permitted by the last paragraph of paragraph 3
hereof, shall be stamped or otherwise imprinted with a legend substantially in
the following form:
"THE SHARES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AND MAY NOT BE
SOLD, TRANSFERRED OR OTHERWISE DISPOSED OF UNLESS THEY HAVE
BEEN REGISTERED UNDER THAT ACT OR AN EXEMPTION FROM
REGISTRATION IS AVAILABLE."
4. NOTICE OF PROPOSED TRANSFER. Prior to any proposed transfer
of any Restricted Stock (other than under the circumstances described in Section
5, 6 or 7 hereof), the holder thereof shall give written notice to the Company
of its intention to effect such transfer. Each such notice shall describe the
manner of the proposed transfer and, if requested by the Company, shall be
accompanied by an opinion of counsel reasonably satisfactory to the Company (it
being agreed that Reboul, MacMurray, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & Kristol or ▇▇▇▇▇▇▇▇ &
▇▇▇▇▇ shall be satisfactory) to the effect that the proposed transfer of the
Restricted Stock may be effected without registration under the Securities Act,
whereupon the holder of such Restricted Stock shall be entitled to transfer such
Restricted Stock in accordance with the terms of its notice; PROVIDED, HOWEVER,
that no such opinion or other documentation shall be required if such notice
shall cover a distribution by Welsh, Carson, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ VI, L.P., WCAS
Healthcare Partners, L.P. or ▇▇▇▇▇▇▇ ▇▇▇▇▇ Capital Partners V, L.P. to their
respective partners. Each certificate for Restricted Stock transferred as above
provided shall bear the legend set forth in Section 3, unless (i) such transfer
is in accordance with the provisions of Rule 144 (or any other rule permitting
public sale without registration under the Securities Act) or (ii) the opinion
of counsel referred to above is to the further effect that the transferee and
any subsequent transferee (other than an affiliate of the Company) would be
entitled to transfer such securities in a public sale without registration
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under the Securities Act.
The foregoing restrictions on transferability of Restricted
Stock shall terminate as to any particular shares of Restricted Stock when such
shares shall have been effectively registered under the Securities Act and sold
or otherwise disposed of in accordance with the intended method of disposition
by the seller or sellers thereof set forth in the registration statement
concerning such shares. Whenever a holder of Restricted Stock is able to
demonstrate to the Company (and its counsel) that the provisions of Rule 144(k)
of the Securities Act are available to such holder without limitation, such
holder of Restricted Stock shall be entitled to receive from the Company,
without expense, a new certificate not bearing the restrictive legend set forth
in Section 3.
5. REQUIRED REGISTRATION.
(a) At any time the holders of Special Restricted Stock
constituting at least a majority of the total Special Restricted Stock
outstanding at such time (treating for the purpose of such computation the
holders of Series V and Series VI Preferred Stock as the holders of the
Conversion Shares then issuable upon conversion of such Preferred Stock and the
holders of 1993 Warrants as holders of the Warrant Shares then issuable upon
exercise of the 1993 Warrants), may request the Company to register under the
Securities Act all or any portion of the Special Restricted Stock held by such
requesting holder or holders for sale in the manner specified in such notice;
PROVIDED, HOWEVER, that the only securities which the Company shall be required
to register pursuant hereto shall be shares of Common Stock.
(b) Promptly following receipt of any notice under this
Section 5, the Company shall immediately notify any holders of Special
Restricted Stock from whom notice has not been received and shall use its best
efforts to register under the Securities Act, for public sale in accordance with
the method of disposition specified in such notice from requesting holders, the
number of shares of Special Restricted Stock specified in such notice (and in
any notices received from other holders within 20 days after their receipt of
such notice from the Company); PROVIDED, HOWEVER, that if the proposed method of
disposition specified by the requesting holders shall be an underwritten public
offering, the number of shares of Special Restricted Stock to be included in
such an offering may be reduced, PRO RATA among the requesting holders of
Special Restricted Stock, based on the number of shares of Special Restricted
Stock requested to be
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registered, if and to the extent that the managing underwriter shall be of the
opinion that such inclusion would adversely affect the marketing of the Special
Restricted Stock to be sold. If such method of disposition shall be an
underwritten public offering, the Company may designate the managing underwriter
of such offering, subject to the approval of the selling holders of a majority
of the Special Restricted Stock included in the offering, which approval shall
not be unreasonably withheld. The Company shall be obligated to register Special
Restricted Stock pursuant to this Section 5 on two occasions only.
Notwithstanding anything to the contrary contained herein, the obligation of the
Company under this Section 5 shall be deemed satisfied only when a registration
statement covering all shares of Special Restricted Stock specified in notices
received as aforesaid, for sale in accordance with the method of disposition
specified by the requesting holder, shall have become effective and, if such
method of disposition is a firm commitment underwritten public offering, all
such shares shall have been sold pursuant thereto.
(c) The Company shall be entitled to include in any
registration statement referred to in this Section 5, for sale in accordance
with the method of disposition specified by the requesting holders, shares of
Common Stock to be sold by the Company for its own account, except as and to the
extent that, in the opinion of the managing underwriter (if such method of
disposition shall be an underwritten public offering), such inclusion would
adversely affect the marketing of the Special Restricted Stock to be sold.
Except as provided in this paragraph (c), the Company will not effect any other
registration of its Common Stock, whether for its own account or that of other
holders, from the date of receipt of a notice from requesting holders pursuant
to this Section 5 until such time as the managing underwriter shall reasonably
request. In the event that there is a firm commitment underwritten public
offering of securities of the Company pursuant to this Section 5, each holder of
Restricted Stock who shall not be selling its Restricted Stock to the
underwriters in connection with such offering shall refrain from selling such
Restricted Stock so registered for such time as the managing underwriter shall
reasonably request; PROVIDED, HOWEVER, that such holder shall, in any event, be
entitled to sell its Restricted Stock commencing on the 180th day after the
effective date of such registration statement.
6. FORM S-3 REGISTRATION.
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(a) If the Company shall receive from any holder or holders of
Restricted Stock, a written request or requests that the Company effect a
registration on Form S-3 and any related qualification or compliance with
respect to Restricted Stock owned by such holder or holders, the reasonably
anticipated aggregate price to the public of which would exceed $2,000,000, the
Company will:
(i) promptly give written notice of the proposed registration,
and any related qualification or compliance, to all other holders of
Restricted Stock; and
(ii) as soon as practicable, effect such registration (including,
without limitation, the execution of an undertaking to file
post-effective amendments, appropriate qualifications under applicable
blue sky or other state securities laws and appropriate compliance with
applicable regulations issued under the Securities Act and any other
government requirements or regulations) as may be so requested and as
would permit or facilitate the sale and distribution of all or such
portion of such holder's or holders' Restricted Stock as are specified
in such request, together with all or such portion of the Restricted
Stock of any holder or holders joining in such request as are specified
in a written request given within thirty (30) days after receipt of
such written notice from the Company, provided that the Company
shall not be obligated to effect any such registration, qualification
or compliance pursuant to this Section 6 (A) more than once in any
180-day period, or (B) if the Company is not entitled to use Form S-3.
Subject to the foregoing, the Company shall file a registration
statement covering the Restricted Stock so requested to be registered
as soon as practicable after receipt of the request or requests of the
holders of the Restricted Stock.
(b) Registrations effected pursuant to this Section 6 shall
not be counted as requests for registration effected pursuant to Section 5.
Except as provided in the foregoing paragraph (a), the Company will not effect
any other registration of its Common Stock, whether for its own account or that
of other holders, from the date of receipt of a notice from requesting holders
pursuant to this Section 6 until such time as the managing underwriter shall
reasonably request. In the event that there is a firm commitment underwritten
public offering of securities of the Company pursuant to this Section 6, each
holder of Restricted Stock who shall not be selling its Restricted Stock to the
underwriters in connection with such offering shall refrain from selling such
Restricted Stock so registered for such
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time as the managing underwriter shall reasonably request; PROVIDED, HOWEVER,
that such holder shall, in any event, be entitled to sell its Restricted Stock
commencing on the 180th day after the effective date of such registration
statement.
7. INCIDENTAL REGISTRATION. (a) If the Company at any time
(other than pursuant to Section 5 or 6 hereof) proposes to register any of its
Common Stock under the Securities Act for sale to the public, whether for its
own account or for the account of other securityholders or both (except with
respect to registration statements on Form S-4 or S-8 or another form not
available for registering the Restricted Stock for sale to the public), it will
give written notice at such time to all holders of outstanding Restricted Stock
of its intention to do so. Upon the written request of any such holder, given
within 30 days after receipt of any such notice by the Company, to register any
of its Restricted Stock (which request shall state the intended method of
disposition thereof), the Company will use its best efforts to cause the
Restricted Stock as to which registration shall have been so requested, to be
included in the securities to be covered by the registration statement proposed
to be filed by the Company, all to the extent requisite to permit the sale or
other disposition by the holder (in accordance with its written request) of such
Restricted Stock so registered; PROVIDED that nothing herein shall prevent the
Company from abandoning or delaying such registration at any time. In the event
that any registration pursuant to this Section 7 shall be, in whole or in part,
an underwritten public offering of Common Stock, any request by a holder
pursuant to this Section 7 to register Restricted Stock shall specify that
either (i) such Restricted Stock is to be included in the underwriting on the
same terms and conditions as the shares of Common Stock otherwise being sold
through underwriters under such registration or (ii) such Restricted Stock is to
be sold in the open market without any underwriting, on terms and conditions
comparable to those normally applicable to offerings of common stock in
reasonably similar circumstances. The number of shares of Restricted Stock to be
included in such an underwriting may be reduced (PRO RATA among the requesting
holders of Restricted Stock based upon the number of shares of Restricted Stock
so requested to be registered) if and to the extent that the managing
underwriter shall be of the opinion that such inclusion would adversely affect
the marketing of the securities to be sold by the Company therein; PROVIDED,
HOWEVER, that the number of shares to be registered shall be reduced (i) first,
by the Company, if and only if such registration is being effected pursuant to
Section 6 hereof, (ii) then PRO RATA among the requesting holders of Founders
Stock, (iii) then PRO RATA among the requesting holders of Restricted
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1991 Stock, (iv) then PRO RATA among the requesting holders of Restricted 1992
Stock, (v) then PRO RATA among the requesting holders of ▇▇▇▇▇ Shares, (vi) then
PRO RATA among the requesting MRC Holders and (vii) then PRO RATA among the
holders of Special Restricted Stock; PROVIDED FURTHER, HOWEVER, that such number
of shares of Restricted Stock shall not be reduced if any shares are to be
included in such underwriting for the account of any person other than the
Company or other than a holder of Restricted Stock.
(b) Notwithstanding anything to the contrary contained in this
Section 7, in the event that there is a firm commitment underwritten public
offering of securities of the Company pursuant to a registration covering
Restricted Stock and a holder of Restricted Stock does not elect to sell his
Restricted Stock to the underwriters of the Company's securities in connection
with such offering, such holder shall refrain from selling such Restricted Stock
so registered pursuant to this Section 7 for such time as the managing
underwriter shall reasonably request; PROVIDED, HOWEVER, that such holder shall,
in any event, be entitled to sell its Restricted Stock commencing on the 180th
day after the effective date of such registration statement. Except as provided
in this Section 7, the Company will not effect any other registration of its
Common Stock, whether for its own account or that of other holders, from the
date of receipt of a notice from requesting holders pursuant to this Section 7
until such time as the managing underwriter shall reasonably request.
8. REGISTRATION PROCEDURES AND EXPENSES. If and whenever the
Company is required by the provisions of Section 5, 6 or 7 hereof to use its
best efforts to effect the registration of any of the Restricted Stock under the
Securities Act, the Company will, as expeditiously as possible:
(a) prepare (and afford counsel for the selling holders
reasonable opportunity to review and comment thereon) and file with the
Commission a registration statement (which, in the case of an
underwritten public offering pursuant to Section 5 hereof, shall be on
Form S-1 or another form of general applicability satisfactory to the
managing underwriter selected as therein provided) with respect to such
securities and use its best efforts to cause such registration
statement to become and remain effective for the period of the
distribution contemplated thereby (determined as hereinafter provided);
(b) prepare (and afford counsel for the selling holders
reasonable opportunity to review and comment thereon)
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and file with the Commission such amendments and supplements to such
registration statement and the prospectus used in connection therewith
as may be necessary to keep such registration statement effective for
the period specified in paragraph (a) above and as comply with the
provisions of the Securities Act with respect to the disposition of all
Restricted Stock covered by such registration statement in accordance
with the sellers' intended method of disposition set forth in such
registration statement for such period;
(c) furnish to each seller and to each underwriter such number
of copies of the registration statement and the prospectus included
therein (including each preliminary prospectus) as such persons may
reasonably request in order to facilitate the public sale or other
disposition of the Restricted Stock covered by such registration
statement;
(d) use its best efforts to register or qualify the Restricted
Stock covered by such registration statement under the securities or
blue sky laws of such jurisdictions as the sellers of Restricted Stock
or, in the case of an underwritten public offering, the managing
underwriter, shall reasonably request (provided that the Company will
not be required to (i) qualify generally to do business in any
jurisdiction where it would not otherwise be required to qualify but
for this paragraph (d), (ii) subject itself to taxation in any such
jurisdiction or (iii) consent to general service of process in any
jurisdiction);
(e) immediately notify each seller under such registration
statement and each underwriter, at any time when a prospectus relating
thereto is required to be delivered under the Securities Act, of the
happening of any event as a result of which the prospectus contained in
such registration statement, as then in effect, includes an untrue
statement of a material fact or omits to state any material fact
required to be stated therein or necessary to make the statements
therein not misleading in the light of the circumstances then existing;
(f) use its best efforts (if the offering is underwritten) to
furnish, at the request of any seller, on the date that Restricted
Stock is delivered to the underwriters for sale pursuant to such
registration: (i) an opinion dated such date of counsel representing
the Company for the purposes of such registration, addressed to the
underwriters and to such seller, stating that such registration
statement has become effective under the Securities Act and that (A) to
the best knowledge of such counsel, no stop order suspending the
effectiveness thereof
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has been issued and no proceedings for that purpose have been
instituted or are pending or contemplated under the Securities Act, (B)
the registration statement, the related prospectus, and each amendment
or supplement thereof, comply as to form in all material respects with
the requirements of the Securities Act and the applicable rules and
regulations of the Commission thereunder (except that such counsel need
express no opinion as to financial statements, the notes thereto, and
the financial schedules and other financial and statistical data
contained therein) and (C) to such other effects as may reasonably be
requested by counsel for the underwriters or by such seller or its
counsel, and (ii) a letter dated such date from the independent public
accountants retained by the Company, addressed to the underwriters,
stating that they are independent public accountants within the meaning
of the Securities Act and that, in the opinion of such accountants, the
financial statements of the Company included in the registration
statement or the prospectus, or any amendment or supplement thereof,
comply as to form in all material respects with the applicable
accounting requirements of the Securities Act, and such letter shall
additionally cover such other financial matters (including information
as to the period ending no more than five business days prior to the
date of such letter) with respect to the registration in respect of
which such letter is being given as such underwriters or seller may
reasonably request; and
(g) make available for inspection by each seller, any
underwriter participating in any distribution pursuant to such
registration statement, and any attorney, accountant or other agent
retained by such seller or underwriter, all financial and other
records, pertinent corporate documents and properties of the Company,
and cause the Company's officers, directors and employees to supply all
information reasonably requested by any such seller, underwriter,
attorney, accountant or agent in connection with such registration
statement and permit such seller, attorney, accountant or agent to
participate in the preparation of such registration statement.
For purposes of paragraphs (a) and (b) above and of Section 5(c) hereof, the
period of distribution of Restricted Stock in a firm commitment underwritten
public offering shall be deemed to extend until each underwriter has completed
the distribution of all securities purchased by it, and the period of
distribution of Restricted Stock in any other registration shall be deemed to
extend until the earlier of the sale of all Restricted Stock covered thereby or
six months after the effective date thereof.
12
13
In connection with each registration hereunder, the selling
holders of Restricted Stock will furnish to the Company in writing such
information with respect to themselves and the proposed distribution by them as
shall be reasonably necessary in order to assure compliance with federal and
applicable state securities laws.
In connection with each registration pursuant to Sections 5, 6
and 7 hereof covering an underwritten public offering, the Company agrees to
enter into a written agreement with the managing underwriter selected in the
manner herein provided in such form and containing such provisions as are
customary in the securities business for such an arrangement between major
underwriters and companies of the Company's size and investment stature,
PROVIDED, HOWEVER, that such agreement shall not contain any such provision
applicable to the Company which is inconsistent with the provisions hereof and
PROVIDED, FURTHER, HOWEVER, that the time and place of the closing under said
agreement shall be as mutually agreed upon among the Company, such managing
underwriter and the selling holders of Restricted Stock.
9. EXPENSES. All expenses incurred by the Company in complying
with Sections 5, 6 and 7 hereof, including, without limitation, all registration
and filing fees, printing expenses, fees and disbursements of counsel and
independent public accountants for the Company, fees of the National Association
of Securities Dealers, Inc., transfer taxes, fees of transfer agents and
registrars and fees and expenses of counsel for the sellers of Restricted Stock
but excluding any Selling Expenses, are herein called "Registration Expenses".
All underwriting discounts and selling commissions applicable to the sale of
Restricted Stock are herein called "Selling Expenses".
The Company will pay all Registration Expenses in connection
with each registration statement filed pursuant to Section 5, 6 or 7 hereof. All
Selling Expenses in connection with any registration statement filed pursuant to
Section 5, 6 or 7 hereof shall be borne by the participating sellers in
proportion to the number of shares sold by each, or by such persons other than
the Company (except to the extent the Company shall be a seller) as they may
agree.
10. INDEMNIFICATION. In the event of a registration of any of
the Restricted Stock under the Securities Act pursuant to Section 5, 6 or 7
hereof, the Company will indemnify and hold harmless each seller of such
Restricted Stock thereunder and each underwriter of Restricted Stock thereunder
and each other person, if any, who controls such seller or underwriter within
the
13
14
meaning of the Securities Act, against any losses, claims, damages or
liabilities, joint or several, to which such seller or underwriter or
controlling person may become subject under the Securities Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any untrue statement or alleged untrue
statement of any material fact contained in any registration statement under
which such Restricted Stock was registered under the Securities Act pursuant to
Section 5, 6 or 7, any preliminary prospectus or final prospectus contained
therein, or any amendment or supplement thereof, or arise out of or are based
upon the omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not misleading,
and will reimburse each such seller, each such underwriter and each such
controlling person for any legal or other expenses reasonably incurred by them
in connection with investigating or defending any such loss, claim, damage,
liability or action; PROVIDED, HOWEVER, that the Company will not be liable in
any such case if and to the extent that any such loss, claim, damage or
liability arises out of or is based upon an untrue statement or alleged untrue
statement or omission or alleged omission so made in conformity with information
furnished by such seller, such underwriter or such controlling person in writing
specifically for use in such registration statement or prospectus.
In the event of a registration of any of the Restricted Stock
under the Securities Act pursuant to Section 5, 6 or 7 hereof, each seller of
such Restricted Stock thereunder, severally and not jointly, will indemnify and
hold harmless the Company and each person, if any, who controls the Company
within the meaning of the Securities Act, each officer of the Company who signs
the registration statement, each director of the Company, each underwriter and
each person who controls any underwriter within the meaning of the Securities
Act, against all losses, claims, damages or liabilities, joint or several, to
which the Company or such officer or director or underwriter or controlling
person may become subject under the Securities Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon any untrue statement or alleged untrue statement of any
material fact contained in the registration statement under which such
Restricted Stock was registered under the Securities Act pursuant to Section 5,
6 or 7, any preliminary prospectus or final prospectus contained therein, or any
amendment or supplement thereof, or arise out of or are based upon the omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not mislead-
14
15
ing, and will reimburse the Company and each such officer, director, underwriter
and controlling person for any legal or other expenses reasonably incurred by
them in connection with investigating or defending any such loss, claim, damage,
liability or action; PROVIDED, HOWEVER, that such seller will be liable
hereunder in any such case if and only to the extent that any such loss, claim,
damage or liability arises out of or is based upon an untrue statement or
alleged untrue statement or omission or alleged omission made in reliance upon
and in conformity with information pertaining to such seller, as such, furnished
in writing to the Company by such seller specifically for use in such
registration statement or prospectus; PROVIDED, FURTHER, HOWEVER, that the
liability of each seller hereunder shall be limited to the proportion of any
such loss, claim, damage, liability or expense which is equal to the proportion
that the public offering price of shares sold by such seller under such
registration statement bears to the total public offering price of all
securities sold thereunder, but not to exceed the proceeds (net of underwriting
discounts and commissions) received by such seller from the sale of Restricted
Stock covered by such registration statement.
Promptly after receipt by an indemnified party hereunder of
notice of the commencement of any action, such indemnified party shall, if a
claim in respect thereof is to be made against the indemnifying party hereunder,
notify the indemnifying party in writing thereof, but the omission so to notify
the indemnifying party shall not relieve it from any liability which it may have
to any indemnified party other than under this Section 10. In case any such
action shall be brought against any indemnified party and it shall notify the
indemnifying party of the commencement thereof, the indemnifying party shall be
entitled to participate in and, to the extent it shall wish, to assume and
undertake the defense thereof with counsel satisfactory to such indemnified
party, and, after notice from the indemnifying party to such indemnified party
of its election so to assume and undertake the defense thereof, the indemnifying
party shall not be liable to such indemnified party under this Section 10 for
any legal expenses subsequently incurred by such indemnified party in connection
with the defense thereof other than reasonable costs of investigation and of
liaison with counsel so selected; PROVIDED, HOWEVER, that, if the defendants in
any such action include both the indemnified party and the indemnifying party
and the indemnified party shall have reasonably concluded that there may be
reasonable defenses available to it which are different from or additional to
those available to the indemnifying party, or if the interests of the
15
16
indemnified party reasonably may be deemed to conflict with the interests of the
indemnifying party, the indemnified party shall have the right to select a
separate counsel and to assume such legal defenses and otherwise to participate
in the defense of such action, with the expenses and fees of such separate
counsel and other expenses related to such participation to be reimbursed by the
indemnifying party as incurred.
Notwithstanding the foregoing, any indemnified party shall
have the right to retain its own counsel in any such action, but the fees and
disbursements of such counsel shall be at the expense of such indemnified party
unless (i) the indemnifying party shall have failed to retain counsel for the
indemnified person as aforesaid or (ii) the indemnifying party and such
indemnified party shall have mutually agreed to the retention of such counsel.
It is understood that the indemnifying party shall not, in connection with any
action or related actions in the same jurisdiction, be liable for the fees and
disbursements of more than one separate firm qualified in such jurisdiction to
act as counsel for the indemnified party. The indemnifying party shall not be
liable for any settlement of any proceeding effected without its written
consent, but if settled with such consent or if there be a final judgment for
the plaintiff, the indemnifying party agrees to indemnify the indemnified party
from and against any loss or liability by reason of such settlement or judgment.
If the indemnification provided for in the first two
paragraphs of this Section 10 is unavailable or insufficient to hold harmless an
indemnified party under such paragraphs in respect of any losses, claims,
damages or liabilities or actions in respect thereof referred to therein, then
each indemnifying party shall in lieu of indemnifying such indemnified party
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages, liabilities or actions in such proportion as
appropriate to reflect the relative fault of the Company, on the one hand, and
the underwriters and the sellers of such Restricted Stock, on the other, in
connection with the statements or omissions which resulted in such losses,
claims, damages, liabilities or actions as well as any other relevant equitable
considerations, including the failure to give any notice under the third
paragraph of this Section 10. The relative fault shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact relates to information supplied by the Company, on the one
hand, or the underwriters and the sellers of such Restricted Stock, on the
other, and to the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The Company and
each other party hereto agrees that it would not be just and
16
17
equitable if contributions pursuant to this paragraph were determined by PRO
RATA allocation (even if all of the sellers of such Restricted Stock were
treated as one entity for such purpose) or by any other method of allocation
which did not take account of the equitable considerations referred to above in
this paragraph. The amount paid or payable by an indemnified party as
a result of the losses, claims, damages, liabilities or action in respect
thereof, referred to above in this paragraph, shall be deemed to include any
legal or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this paragraph, the sellers of such Restricted
Stock shall not be required to contribute any amount in excess of the amount, if
any, by which the total price at which the Common Stock sold by each of them was
offered to the public exceeds the amount of any damages which they would have
otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission. No person guilty of fraudulent misrepresentations (within
the meaning of Section 11(f) of the Securities Act), shall be entitled to
contribution from any person who is not guilty of such fraudulent
misrepresentation.
The indemnification of underwriters provided for in this
Section 10 shall be on such other terms and conditions as are at the time
customary and reasonably required by such underwriters. In that event the
indemnification of the sellers of Restricted Stock in such underwriting shall at
the sellers' request be modified to conform to such terms and conditions.
11. CHANGES IN COMMON STOCK. If, and as often as, there are
any changes in the Common Stock by way of stock split, stock dividend,
combination or reclassification, or through merger, consolidation,
reorganization or recapitalization, or by any other means, appropriate
adjustment shall be made in the provisions hereof, as may be required, so that
the rights and privileges granted hereby shall continue with respect to the
Common Stock as so changed.
12. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company
represents and warrants to each holder of Restricted Stock as follows:
(a) The execution, delivery and performance of this Agreement
by the Company have been duly authorized by all requisite corporate
action and will not violate any provision of law, any order of any
court or other agency of government, the Certificate of Incorporation
or By-laws of the Company, or any provision of any indenture, agreement
or
17
18
other instrument to which it or any of its properties or assets is
bound, or conflict with, result in a breach of or constitute (with due
notice or lapse of time or both) a default under any such indenture,
agreement or other instrument, or result in the creation or imposition
of any lien, charge or encumbrance of any nature whatsoever upon any of
the properties or assets of the Company.
(b) This Agreement has been duly executed and delivered by the
Company and constitutes the legal, valid and
binding obligation of the Company, enforceable in accordance with its
terms, subject to considerations of public policy in the case of the
indemnification provisions hereof.
13. RULE 144 REPORTING. The Company agrees with each holder of
Restricted Stock as follows:
(a) The Company shall make and keep public information
available, as those terms are understood and defined in Rule 144 under
the Securities Act, at all times from and after the date it is first
required to do so.
(b) The Company shall file with the Commission in a timely
manner all reports and other documents as the Commission may prescribe
under Section 13(a) or 15(d) of the Exchange Act at any time after the
Company has become subject to such reporting requirements of the
Exchange Act.
(c) The Company shall furnish to such holder of Restricted
Stock forthwith upon request (i) a written statement by the Company as
to its compliance with the reporting requirements of Rule 144 (at any
time from and after the date it first becomes subject to such reporting
requirements, and of the Securities Act and the Exchange Act (at any
time after it has become subject to such reporting requirements), (ii)
a copy of the most recent annual or quarterly report of the Company,
and (iii) such other reports and documents so filed as a holder may
reasonably request to avail itself of any rule or regulation of the
Commission allowing a holder of Restricted Stock to sell any such
securities without registration.
14. MISCELLANEOUS.
(a) All covenants and agreements contained in this Agreement
by or on behalf of any of the parties hereto shall bind and inure to
the benefit of the respective successors and assigns of the parties
hereto whether so expressed or
18
19
not. Without limiting the generality of the foregoing, the registration
rights conferred herein on the holders of Restricted Stock shall inure
to the benefit of any and all subsequent holders from time to time of
the Restricted Stock for so long as the certificates representing the
Restricted Stock shall be required to bear the legend specified in
Section 3 hereof.
(b) All notices, requests, consents and other communications
hereunder shall be in writing and shall be mailed by first class
registered mail, postage prepaid, addressed as follows:
if to the Company or to any holder of Restricted Stock, to it
at the address as set forth on Annex I hereto;
if to any subsequent holder of Restricted Stock, to it
at such address as may have been furnished to the Company in
writing by such holder;
or, in any case, at such other address or addresses as shall have been
furnished in writing to the Company (in the case of a holder of
Restricted Stock) or to the holders of Restricted Stock (in the case of
the Company).
(c) This Agreement shall be governed by and construed in
accordance with the laws of the State of New York.
(d) This Agreement constitutes the entire agreement of the
parties with respect to the subject matter hereof and may not be
modified or amended except by an instrument in writing executed by (i)
the holders of a majority of the Founders Stock, (ii) the holders of a
majority of the Restricted 1991 Stock, (iii) the holders of a majority
of the Restricted 1992 Stock, (iv) the holders of a majority of the
Restricted 1993 Stock, (v) the holders of a majority of the ▇▇▇▇▇
Shares, (vi) the holders of 75% of the outstanding shares of Series VI
Preferred Stock and (vii) a majority of the MRC Holders, in each such
case, outstanding at such time (treating for the purpose of such
computations the holders of Preferred Stock as the holders of the
Conversion Shares then issuable upon conversion of such Preferred Stock
and the holders of Warrants as the holders of Warrant Shares issuable
upon exercise thereof).
(e) The provisions of this Agreement pertaining to the holders
of the Founders Stock, other than ▇▇▇▇ ▇▇▇▇▇▇, are subject, with
respect to each such party, to the execution
19
20
and delivery by such party of a counterpart to this Agreement and until
such time this Agreement shall not include (i) each such party as a
party to this Agreement and (ii) to the extent that such party has
purchased shares of Restricted Stock, such party as a holder of
Restricted Stock hereunder, but this Agreement shall in all other
respects be a binding agreement of each of the other parties hereto.
(f) This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
(g) Upon the execution and delivery of this Agreement by the
holders of (i) 85% of the Founders Stock, (ii) a majority of the
Restricted 1991 Stock, (iii) a majority of the Restricted 1992 Stock,
(iv) a majority of the Restricted 1993 Stock and (v) a majority of the
▇▇▇▇▇ Shares, in each such case, outstanding at such time (treating for
the purpose of such computations the holders of Preferred Stock as the
holders of the Conversion Shares then issuable upon conversion of such
Preferred Stock, the holders of Warrants as the holders of Warrant
Shares issuable upon exercise thereof, and the holder of the ▇▇▇▇▇
Options as the holder of the shares of Common Stock issuable upon the
exercise thereof), the Original Agreement shall be terminated and be of
no further force or effect.
(h) Any provision of this Agreement to the contrary
notwithstanding, this Agreement shall be effective as among the Company
and the holders of Restricted Stock who have executed and delivered
this Agreement upon execution and delivery of this Agreement by the
Company and any such holder. Upon the execution and delivery of this
Agreement by the holders of Restricted Stock under the Original
Agreement, the rights and obligations of such holders under the
Original Agreement shall be terminated and discharged.
20
21
IN WITNESS WHEREOF, the undersigned have executed this
Registration Rights Agreement as of the date first above written.
MEDIFAX, INC.
By
----------------------------------
AGREED TO AND ACCEPTED as of the date first above written.
WELSH, CARSON, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ VI, L.P.
By WCAS VI Partners, L.P., General Partner
By
--------------------------------
General Partner
WCAS HEALTHCARE PARTNERS, L.P.
By WCAS HP Partners, General Partner
By
--------------------------------
General Partner
----------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
21
22
DE CHARTER TRUST CO., AS TRUSTEE
FBO THE ▇▇▇/ROLLOVER OF ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
By
--------------------------------
----------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇
----------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
----------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
MSTC, CUSTODIAN FBO
THE ▇▇▇/ROLLOVER OF ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
By
--------------------------------
----------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
22
23
IASD HEALTH SERVICES, INC.
By
--------------------------------
FBL VENTURES OF SOUTH DAKOTA
By
--------------------------------
N.F. NORDISKA FONDKOMMISSION A.B.
By
--------------------------------
▇▇▇▇▇▇ ▇▇▇▇ FONDKOMMISSION A.B
By
--------------------------------
EDGEWATER PRIVATE EQUITY FUND, L.P.
By
--------------------------------
VENTANA PARTNERSHIP III, L.P.
By
--------------------------------
ANDEX
By
--------------------------------
----------------------------------
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇
▇▇
----------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
HOEGH INVEST A/S
By
--------------------------------
----------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
----------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇
----------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, M.D.
----------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇▇▇
----------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇, Ph.D.
----------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, M.D.
----------------------------------
▇▇▇ ▇. ▇▇▇▇▇, M.D.
----------------------------------
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, M.D.
24
25
----------------------------------
▇▇▇▇ ▇. ▇▇▇▇
----------------------------------
Rich Investments
----------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇, M.D.
----------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
----------------------------------
▇▇▇▇ ▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, M.D.
----------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
----------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇, M.D.
----------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
25
26
----------------------------------
▇▇▇▇▇ Family Partners
----------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇., M.D.
----------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, M.D.
----------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, M.D.
----------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇
----------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, III
----------------------------------
▇▇▇▇▇▇▇ ▇. and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------------------
Dr. and ▇▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇.
----------------------------------
▇▇▇▇ ▇. and ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
----------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇
▇▇
----------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇ CAPITAL PARTNERS V, L.P.
By
--------------------------------
----------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
NATIONAL CITY CAPITAL CORPORATION
By
--------------------------------
----------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇
27
28
----------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------
▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------------
▇▇▇▇▇ ▇▇▇▇▇
----------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇
28
29
ANNEX I
[addresses omitted]
SERIES IV PREFERRED STOCKHOLDERS
--------------------------------
▇▇▇▇▇▇ ▇▇▇▇ Fondkommission AB
Andex
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Edgewater Private Equity Fund LP
FBL Ventures of South Dakota, Inc.
Hoegh Invest A/S
IASD Health Services Corporation
N.F. Nordiska Fondkommission AB
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Ventana Partnership III, L.P.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇
SERIES V PREFERRED STOCKHOLDERS
-------------------------------
Welsh, Carson, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ VI, L.P.
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇*
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
DE Charter Trust Co., as Trustee
FBO the ▇▇▇/Rollover of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
DE Charter Trust Co., as Trustee
FBO the ▇▇▇/Rollover of ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------
30
SERIES VI PREFERRED STOCKHOLDERS
--------------------------------
Welsh, Carson, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ VI, L.P.
WCAS Healthcare Partners, L.P.
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
DE Charter Trust Co., as Trustee
FBO the ▇▇▇/Rollover of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
MSTC, Custodian
FBO the ▇▇▇/Rollover of ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇ Capital Partners V, L.P.
▇▇▇ of ▇▇▇ ▇. ▇▇▇▇▇
▇.▇. ▇▇▇▇▇▇▇▇ & Co., Custodian
National City Capital Corporation
▇▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇▇, Ph.D.
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, M.D.
▇▇▇▇▇▇ ▇▇▇▇▇
Dr. and Mrs. (▇▇▇▇▇) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇.
▇▇▇ ▇. ▇▇▇▇▇, M.D.
Edgewater Private Equity Fund LP
HOLDERS OF RESTRICTED 1991 STOCK
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▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, M.D.
HOLDERS OF FOUNDERS STOCK
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▇▇▇ ▇. ▇▇▇▇▇, M.D.
Dr. and Mrs. (▇▇▇▇▇) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇.
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇., M.D.
▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
▇▇▇▇▇▇ ▇. ▇▇▇▇▇, M.D.
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, M.D.
▇▇▇▇▇ Family Partners
▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇., M.D.
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, M.D.
2
31
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, M.D.
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, M.D.
▇▇▇▇▇▇▇ ▇. and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇▇ ▇. and ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇
▇▇▇▇ Investments
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, M.D.
▇▇▇▇ ▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇, M.D.
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, III
▇▇▇▇ ▇. ▇▇▇▇▇▇, Ph.▇.
▇▇▇▇▇ SHAREHOLDER
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇
MRC HOLDERS
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇
3