Exhibit 10.22
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT, dated as of August 17, 1999, by and
among Concentra Managed Care, Inc., a Delaware corporation (the "COMPANY"), the
several persons named in Schedule I hereto (collectively, the "SCHEDULE I
PURCHASERS") and the several persons named in Schedule II hereto (collectively,
the "FFT PURCHASERS"). The Schedule I Purchasers and the FFT Purchasers are
herein sometimes referred to collectively as the "PURCHASERS."
WHEREAS, the Company and Yankee Acquisition Corp., a Delaware
corporation ("NEWCO"), have entered into an Amended and Restated Agreement and
Plan of Merger, dated as of March 24, 1999 (the "MERGER AGREEMENT");
WHEREAS, pursuant to the Merger Agreement, upon the terms and subject
to the conditions set forth therein, (i) Newco will merge with and into the
Company (the "MERGER"), (ii) each outstanding share of common stock, par value
$0.01 per share ("COMPANY COMMON STOCK"), of the Company outstanding immediately
prior to the Merger (other than shares of Company Common Stock owned by Company
or Newco or their Affiliates) will be converted into the right to receive $16.50
per share in cash, without interest, (iii) each outstanding share of common
stock, par value $0.01 per share ("NEWCO COMMON STOCK"), of Newco will be
converted into one share of Company Common Stock and (iv) each outstanding share
of Class A common stock, par value $0.01 per share ("NEWCO CLASS A COMMON
STOCK"), of Newco will be converted into one share of Class A common stock, par
value $0.01 per share ("COMPANY CLASS A COMMON STOCK," and together with Company
Common Stock, the "COMPANY CAPITAL STOCK"), of the Company;
WHEREAS, Welsh, Carson, Anderson & Stowe VIII, L.P., a Delaware
limited partnership ("WCAS") and the other persons set forth on Schedule I
hereto have entered into a Stock Subscription Agreement, dated as of August 17,
1999 (the "WCAS STOCK SUBSCRIPTION AGREEMENT"), pursuant to which Newco has
agreed to sell to the Schedule I Purchasers an aggregate 23,821,953 shares of
Newco Common Stock;
WHEREAS, Ferrer Freeman Thompson & Co., LLC, a Delaware limited
liability corporation ("FFT"), on behalf of Health Care Capital Partners L.P.
and as its general partner and on behalf of Health Care Executive Partners L.P.
and as its general partner has entered into a Stock Subscription Agreement,
dated as of March 27, 1999 (the "FFT STOCK SUBSCRIPTION AGREEMENT," and together
with the WCAS Stock Subscription Agreement, the "STOCK SUBSCRIPTION
AGREEMENTS"), pursuant to which Newco has agreed to sell to the FFT Purchasers
an aggregate 1,854,545 shares of Newco Class A Common Stock;
WHEREAS, upon the consummation of all the transactions contemplated
by the Stock Subscription Agreements and the Merger Agreement, each Stockholder
will own the number of shares of Company Common Stock or Company Class A Common
Stock, as the case may be, appearing opposite the name of such Stockholder on
Schedule I or Schedule II, as the case may be;
WHEREAS, the Company and each of the Stockholders desire to provide
for certain registration matters relating to their respective holdings of
Company Capital Stock;
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants and agreements herein contained, the parties hereto hereby agree as
follows:
1. CERTAIN DEFINITIONS. In addition to the terms defined elsewhere
herein, the following terms shall have the following respective meanings when
used herein with initial capital letters:
"AFFILIATE" shall have the meaning given to that term in Rule 405
promulgated under the Securities Act and shall include members of a
Person's immediate family or trusts for the benefit of members of the
immediate family of such Person; PROVIDED that officers, directors or
employees of the Company will not be deemed to be Affiliates of a
stockholder of the Company for purposes hereof solely by reason of being
officers, directors or employees of the Company.
"BOARD" means the Board of Directors of the Company.
"COMMISSION" shall mean the Securities and Exchange Commission, or
any other federal agency at the time administering the Securities Act.
"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.
"PUBLIC OFFERING" means the sale of shares of Company Common Stock to
the public pursuant to an effective registration statement (other than a
registration statement on Form S-4 or S-8 or any similar or successor
form) filed under the Securities Act.
"REGISTRATION EXPENSES" shall mean the expenses so described in
Section 8 hereof.
"RESTRICTED STOCK" shall mean any shares of Company Capital Stock,
the certificates for which are required to bear the legend set forth in
Section 2 hereof, held by any party to this Agreement.
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"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 8
hereof.
2. RESTRICTIVE LEGEND. Each certificate representing shares of
Company Capital Stock, other than shares of Company Capital Stock transferred in
a public sale or as otherwise permitted by Section 3 hereof, shall be stamped or
otherwise imprinted with a legend substantially in the following form:
"THE SHARES OF [COMMON STOCK][CLASS A COMMON STOCK] 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."
3. NOTICE OF PROPOSED TRANSFER. In addition to any restrictions set
forth in the Stockholders Agreement, dated as of the date hereof among the
Company and the Purchasers, prior to any proposed transfer of any Restricted
Stock (other than under the circumstances described in Sections 4, 5 or 6
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 reasonably requested by the Company, shall be
accompanied by an opinion of counsel reasonably satisfactory to the Company 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 pro rata
distribution (without payment of additional consideration) by any Purchaser that
is a partnership or limited liability company to its partners or members, as the
case may be. Each certificate for Restricted Stock transferred as above provided
shall bear the legend set forth in Section 2, 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 is pursuant to an
effective registration under the Securities Act) or (ii) the opinion of counsel
referred to above is to the further effect that (or, if no opinion is required,
the Company determines 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 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
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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 2.
4. REQUIRED REGISTRATION.
(a) At any time after the Effective Date, the holders of a majority
of the outstanding Restricted Stock then held by the Schedule I Purchasers
may request the Company to register under the Securities Act all or any
portion of the Restricted Stock held by such requesting holder or holders
for sale in the manner specified in such notice; PROVIDED, HOWEVER, that
the Schedule I Purchasers may not request registration pursuant to this
Section 4 more than once every six months.
(b) Promptly following receipt of any notice under this Section 4,
the Company shall immediately notify any holders of Restricted Stock from
whom notice has not been received and shall use its best efforts to
register as soon as possible under the Securities Act, for public sale in
accordance with the method of disposition specified in such notice from
the original requesting holders, the number of shares of Restricted Stock
specified in such notice (and in any notices received from other holders
of Restricted Stock within 20 days after their receipt of such notice from
the Company); PROVIDED, HOWEVER, that if the proposed method of
disposition specified by the original requesting holders shall be an
underwritten Public Offering, the number of shares of Restricted Stock to
be included in such an offering may be reduced (PRO RATA among the
requesting holders of Restricted Stock based on the number of shares of
Restricted Stock owned by any such holder on the date of such request out
of the total outstanding shares of Company Capital Stock on that date) if
and to the extent that the managing underwriter shall be of the opinion
that such inclusion would adversely affect the marketing of the Restricted
Stock to be sold. In the event that the proposed method of disposition
specified by the original requesting holders shall be an underwritten
Public Offering, the original requesting holders may choose the managing
underwriter (which shall be a nationally recognized investment banking
firm), subject to the consent of the Company (which shall not be
unreasonably withheld). Notwithstanding anything to the contrary contained
herein, the obligation of the Company under this Section 4 shall be deemed
satisfied only when a registration statement covering all shares of
Restricted Stock specified in notices received as aforesaid (subject to
any cutbacks as contemplated hereinabove), 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.
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(c) The Company shall be entitled to include in any registration
statement referred to in this Section 4, for sale in accordance with the
method of disposition specified by the requesting holders, shares of
Company 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 or the inclusion of shares of any other holders would adversely
affect the marketing of the Restricted Stock to be sold (and in such
event, such shares to be sold by the Company for its own account or any
other holders shall be reduced or eliminated before any reduction in the
number of shares to be sold by requesting holders pursuant to Section
4(b)). Except as provided in this paragraph (c), the Company will not
effect any other registration of Company 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 4 until the completion of
the period of distribution of the registration contemplated thereby.
(d) The Company shall not be obligated to file a registration
statement relating to any registration request under this Section 4:
(i) if with respect thereto the managing underwriter, the
Commission, the Securities Act or the rules and regulations
thereunder, or the form on which the registration statement is to be
filed, would require the conduct of an audit other than the regular
audit conducted by the Company at the end of its fiscal year, in
which case the filing may be delayed until the completion of such
audit (and the Company shall, upon request of the parties demanding
registration pursuant to this Section 4, use its reasonable efforts
to cause such audit to be completed expeditiously and without
unreasonable delay); or
(ii) if the Company is in possession of material non-public
information and the Board determines in good faith that disclosure of
such information would not be in the best interests of the Company
and its stockholders, in which case the filing of the registration
statement may be delayed until the earlier of (i) the second business
day after such conditions shall have ceased to exist and (ii) the
90th day after receipt by the Company of the written request from the
holders of a majority of the outstanding Restricted Stock then held
by the Schedule I Purchasers to register Restricted Stock under this
Section 4.
5. PIGGYBACK REGISTRATION. (a) If the Company at any time (other than
pursuant to Section 4 hereof) proposes to register any Company 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.
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Upon the written request of any such holder, given within 20 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 required 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; PROVIDED FURTHER that the only
securities the Company shall be required to register pursuant hereto shall be
shares of Company Common Stock. In the event that any registration pursuant to
this Section 5 shall be, in whole or in part, an underwritten Public Offering of
Company Common Stock, any request by a holder pursuant to this Section 5 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 Company 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 holders of Restricted Stock requesting
registration pursuant to this Section 5 based on the number of shares of
Restricted Stock owned by any such holder on the date of such request out of the
total outstanding shares of Company Capital Stock on that date) 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 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 and the holders of Restricted
Stock; PROVIDED FURTHER that the number of shares of Restricted Stock held by
the FFT Purchasers that this Section 5 permits to be included in a registration
may be allocated among the FFT Purchasers as such parties shall agree.
(b) Notwithstanding anything to the contrary contained in Section 4,
5 or 6 hereof, 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, to the extent required by such
underwriters with respect to all holders of Restricted Stock, refrain from
selling such Restricted Stock during the period of distribution of the Company's
securities by such underwriters and the period in which the underwriting
syndicate participates in the after market; PROVIDED, HOWEVER, that such holder
shall, in any event, be entitled to sell its Restricted Stock commencing on the
120th day after the effective date of such registration statement.
6. DEMAND REGISTRATION. (a) At any time after the 180th day following
the initial Public Offering, upon the written request of WCAS or FFT (the
Purchaser or Purchasers making such request, a "DEMAND PARTY") requesting that
the Company effect the registration
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under the Securities Act of all or part of such Demand Party's Restricted Stock
and specifying the amount and intended method of disposition thereof, the
Company will promptly give written notice of such requested registration to the
other holders of outstanding Restricted Stock and thereupon will, as
expeditiously as possible, file a registration statement to effect the
registration under the Securities Act of:
(i) such shares of Restricted Stock which the Company has been so
requested to register by the Demand Party; and
(ii) the other shares of Restricted Stock which the Company has been
requested to register by written request given to the Company within 20
days after the giving of such written notice by the Company (which request
shall specify the amount and intended method of disposition of such
securities);
all to the extent necessary to permit the disposition (in accordance with the
intended method thereof as aforesaid) of the Restricted Stock so to be
registered; PROVIDED that the Company shall not be required to effect the
registration of Restricted Stock at the request of FFT under this Section 6 on
more than one occasion, except as provided in Section 6(d); and PROVIDED,
FURTHER, that the Company shall not be obligated to file a registration
statement relating to any registration request under this Section 6(a):
(x) within a period of 180 days (or such lesser period as the
managing underwriters in an underwritten offering may permit) after the
effective date of any other registration statement relating to any
registration request under Sections 4, 5 or 6 hereof;
(y) if with respect thereto the managing underwriter, the Commission,
the Securities Act or the rules and regulations thereunder, or the form on
which the registration statement is to be filed, would require the conduct
of an audit other than the regular audit conducted by the Company at the
end of its fiscal year, in which case the filing may be delayed until the
completion of such audit (and the Company shall, upon request of the
Demand Parties, use its reasonable efforts to cause such audit to be
completed expeditiously and without unreasonable delay); or
(z) if the Company is in possession of material non-public
information and the Board determines in good faith that disclosure of such
information would not be in the best interests of the Company and its
stockholders, in which case the filing of the registration statement may
be delayed until the earlier of (i) the second business day after such
conditions shall have ceased to exist and (ii) the 90th day after receipt
by the Company of the written request from a Demand Party to register
Restricted Stock under this Section 6(a).
Nothing in this Section 6(a) shall operate to limit the right of a Purchaser to
request the registration of Restricted Stock that consists of Company Common
Stock issuable upon
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conversion, exercise or exchange of Company Class A Common Stock held by such
Purchaser notwithstanding the fact that at the time of request such Purchaser
holds only Company Class A Common Stock ; PROVIDED that the only securities the
Company shall be required to register pursuant hereto shall be shares of Company
Common Stock. The number of shares of Restricted Stock to be included in such an
underwriting may be reduced (PRO RATA among the holders of Restricted Stock
requesting registration pursuant to this Section 6 based on the number of shares
of Restricted Stock owned by any such holder on the date of such request out of
the total outstanding shares of Company Capital Stock on that date) if and to
the extent that the managing underwriter shall be of the opinion that such
inclusion would adversely affect the marketing of the Restricted Stock to be
sold by the Company therein; PROVIDED, 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 and the
holders of Restricted Stock; PROVIDED FURTHER that any securities that the
Company proposes to sell for its own account under such registration statement
shall be reduced prior to any reduction of Restricted Stock held by such
Purchaser; PROVIDED FURTHER that the number of shares of Restricted Stock held
by the FFT Purchasers that this Section 6 permits to be included in a
registration may be allocated among the FFT Purchasers as such parties shall
agree. In the event that the number of shares of Restricted Stock requested to
be included in such registration is less than the number which, in the opinion
of the managing underwriter, can be sold, the Company may include in such
registration securities it proposes to sell for its own account up to the number
of securities that, in the opinion of the underwriter, can be sold.
(b) EFFECTIVE REGISTRATION STATEMENT. A registration requested
pursuant to this Section 6 will not be deemed to have been effected unless it
has become effective; PROVIDED that, if, within 180 days after it has become
effective, the offering of Restricted Stock pursuant to such registration is
interfered with by any stop order, injunction or other order or requirement of
the Commission or other governmental agency or court, then such registration
will be deemed not to have been effected.
(c) SELECTION OF UNDERWRITERS. If a requested registration pursuant
to this Section 6 involves an underwritten offering and neither the Company nor
any of the Schedule I Purchasers (or Affiliates thereof) are registering any
securities therein, the Demand Parties shall have the right to select the
investment banker or bankers and managers to administer the offering, including
the lead managing underwriter; PROVIDED, HOWEVER, that such investment banker or
bankers and managers shall be reasonably satisfactory to the Company. If a
requested registration pursuant to this Section 6 involves an underwritten
offering and either the Company or any of the Schedule I Purchasers (or their
Affiliates) are registering any securities therein, the Company shall have the
right to select the investment banker or bankers and managers to administer the
offering, including the lead managing underwriter; PROVIDED, HOWEVER, that a
majority in interest of the holders of the Restricted Stock held by all
Purchasers participating in such registration shall have the right to select one
co-manager that is an investment banking firm of nationally recognized standing
to participate in the administration of the offering. Any underwriting agreement
relating to an underwritten public offering shall have representations and
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warranties by any Purchaser only to the extent relating to the Purchasers
selling Restricted Stock pursuant to such underwritten offering.
(d) ADDITIONAL REQUESTS. If as a result of the priority provisions
set forth in Section 6(a), (i) the number of shares of Restricted Stock
registered pursuant to this Section 6 is less than 75% of the number of shares
of Restricted Stock set forth in the first request made by FFT under this
Section 6 and (ii) FFT shall have already requested registration under this
Section 6 on one occasion, then FFT shall have the right to make one or more
additional requests for registration under this Section 6 until such time as at
least 75% of the number of shares of Restricted Stock set forth in such first
request under this Section 6 made by FFT have been registered under this Section
6.
7. REGISTRATION PROCEDURES. If and whenever the Company is required
by the provisions of Sections 4, 5 or 6 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) in accordance with the Securities Act and all applicable rules
and regulations, 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 4 hereof, shall be on Form S-1, S-3 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) and file with the Commission
such amendments and supplements to such registration statement and the
prospectus used in connection therewith and any documents incorporated by
reference therein and file such other documents as may be necessary to
keep such registration statement effective for the period specified in
paragraph (a) above and to 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), and all amendments, supplements,
and exhibits thereto, and such other documents 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
(and the Company hereby consents to the use of any such prospectus,
together with such supplements and amendments, by the sellers and
underwriters, if any, in connection with the offer and sale covered
thereby);
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(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, (i) when such registration statement or any
post-effective amendment or supplement thereto becomes effective or a
supplement to any prospectus forming a part of such registration statement
has been filed; (ii) of the issuance by the Commission or any state
securities authority of any stop order, injunction or other order or
requirement suspending the effectiveness of such registration statement
(and the Company shall use best efforts to prevent the initiation of
proceedings for, prevent the entry of and/or remove such order or
requirement); (iii) of the happening of any event as a result of which
such registration statement, as then in effect, the prospectus contained
therein or any document incorporated by reference therein 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; or (iv) of
any request by the Commission for the amending or supplementing of such
registration statement or prospectus or for additional information;
(f) use its best efforts 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, if such securities are being sold through
underwriters, or on the date that the registration statement becomes
effective, if such securities are not being sold through underwriters: (i)
an opinion dated such date of counsel representing the Company for the
purposes of such registration, addressed to the underwriters, if any, 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 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, if any, and to such sellers 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
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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 sellers may reasonably
request;
(g) take such actions as may be necessary or appropriate to obtain a
CUSIP number (if none exists) for the Company Common Stock, and make all
filings and secure all approvals required pursuant to the regulations of
the National Association of Securities Dealers, Inc. in connection with
such registration;
(h) take such actions as may be necessary or appropriate to cause the
Restricted Stock so to be registered to be listed on the principal
securities exchange (or on the NASDAQ National Market System, as the case
may be) on which shares of Company Common Stock are then traded (or, in
the case of an initial Public Offering, on such national securities
exchange (or on the NASDAQ National Market System) as the Company shall
elect);
(i) use its best efforts to comply with all applicable rules and
regulations of the Commission, and make available to any holder of
Restricted Stock, as soon as reasonably practicable (but not more than 15
months) after the effective date of the registration statement, an
earnings statement which shall satisfy the provisions of Section 11(a) of
the Securities Act and the rules and regulations promulgated thereunder;
and
(j) 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 4(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.
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
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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 4, 5 and 6
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.
8. EXPENSES. All expenses incurred by the Company in complying with
Sections 4, 5 or 6 hereof, including, without limitation, all registration,
listing and filing fees, printing expenses, fees and disbursements of counsel
and independent public accountants for the Company (including with respect to
any special audit or "cold comfort" letters), fees of the National Association
of Securities Dealers, Inc., transfer taxes and fees of transfer agents and
registrars, as well as reasonable fees and out-of pocket expenses of not more
than one counsel for all the Schedule I Purchasers and one counsel for all the
FFT Purchasers, 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 Sections 4, 5 or 6 hereof. All
Selling Expenses in connection with any registration statement filed pursuant to
Sections 4, 5 or 6 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.
9. INDEMNIFICATION. In the event of a registration of any of the
Restricted Stock under the Securities Act pursuant to Sections 4, 5 or 6 hereof,
the Company will indemnify and hold harmless, to the fullest extent permitted by
law, each seller of such Restricted Stock thereunder, each underwriter of
Restricted Stock thereunder, each of their respective affiliates, each of their
and their affiliates' respective directors, officers, fiduciaries, trustees,
agents, employees, stockholders, general and limited partners and members, and
each other person, if any, who controls such seller or underwriter within the
meaning of the Securities Act, against any losses, claims, damages or
liabilities, joint or several, actions or proceedings (whether commenced or
threatened) in respect thereof (all of the foregoing, collectively, "CLAIMS")
and expenses (including fees and expenses of counsel, and amounts paid in any
settlement effected with the Company's consent, which consent shall not be
unreasonably withheld or delayed) to which such indemnified party may become
subject under the Securities Act or otherwise, insofar
12
as such Claims or expenses 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 Sections 4, 5 or 6, any preliminary prospectus, summary or final
prospectus contained therein, or any amendment or supplement of any thereof, or
any documents incorporated by reference therein, 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 indemnified party for any legal or other expenses
incurred by them in connection with investigating or defending any such Claim;
PROVIDED, HOWEVER, that the Company will not be liable to any such indemnified
party if and to the extent that any such Claim or expense 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 pertaining to such
indemnified party furnished by such indemnified party 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 Sections 4, 5 or 6 hereof, each seller of such
Restricted Stock thereunder, severally and not jointly, will indemnify and hold
harmless, to the fullest extent permitted by law, 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, each other stockholder selling
Restricted Stock under such registration statement and each affiliate, officer,
director, fiduciary, trustee, agent, employee, stockholder, general or limited
partner or member of such selling stockholder against all Claims and expenses
(including fees and expenses of counsel, and amounts paid in any settlement
effected with the indemnifying party's consent, which consent shall not be
unreasonably withheld or delayed) 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 Claims or expenses 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 Sections 4, 5 or 6, any
preliminary prospectus, summary or final prospectus contained therein, or any
amendment or supplement of any thereof, or any documents incorporated by
reference therein, 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 the
Company and each such indemnified party for any legal or other expenses incurred
by them in connection with investigating or defending any such Claim; PROVIDED,
HOWEVER, that such seller will be liable hereunder to any such indemnified party
if and only to the extent that any such Claim or expense 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
13
hereunder shall be limited to 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
such indemnified party under this Section 9 except to the extent such
indemnifying party is materially prejudiced thereby, and in any event will not
relieve such indemnifying party from any liability which it may have to any
indemnified party other than under this Section 9. 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 9 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 indemnified
party reasonably may be deemed to conflict with the interests of the
indemnifying party, or if the indemnifying party shall not diligently continue
such defense in good faith, 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 except as set forth
above 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 firm (together with local counsel) 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
(which shall not be unreasonably withheld or delayed), 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. No indemnifying party shall,
without the written consent of the indemnified party (which shall not be
unreasonably withheld or delayed), effect the settlement or compromise of, or
consent to the entry of any judgment with respect to, any pending or threatened
action in respect of which indemnification may be sought hereunder (whether or
not the indemnified party is an actual or
14
potential party to such action) unless such settlement, compromise or judgment
(i) includes an unconditional release of such indemnified party from all
liability arising out of such action and (ii) does not include a statement as to
or an admission of fault, culpability or a failure to act by or on behalf of
such indemnified party.
If for any reason the indemnification provided for in the first two
paragraphs of this Section 9 is unavailable or insufficient to hold harmless an
indemnified party under such paragraphs in respect of any Claims or expenses 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 Claims or expenses 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
Claims or expenses as well as any other relevant equitable considerations,
including the failure to give any notice under the third paragraph of this
Section 9. 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 indemnifying party, on the one hand, or
the indemnified party, 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 of you agree that it would not be
just and 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 Claims and expenses 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, no
seller of such Restricted Stock or related indemnified party shall be required
to contribute any amount in excess of the amount of proceeds (net of
underwriting discounts and commissions) received by such seller from the sale of
Restricted Stock covered by such registration statement. 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 9
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.
The indemnification and contribution agreements contained herein
shall be in addition to any other rights to indemnification and contribution
which any indemnified party may have pursuant to law or contract or otherwise,
shall remain operative and in full force and effect regardless of any
investigation made or omitted by or on behalf of any indemnified party and shall
survive the transfer of Restricted Stock by any such party.
15
10 CHANGES IN COMPANY CAPITAL STOCK. If, and as often as, there are
any changes in Company Capital 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 by the Board in the provisions hereof, as may be
required, so that the rights and privileges granted hereby shall continue with
respect to the Company Capital Stock as so changed.
11 REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company
represents and warrants to each of the Purchasers 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 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.
12 RULE 144 REPORTING. The Company agrees with each of the Purchasers
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 as it is able 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 that the Company is subject
to such reporting requirements of the Exchange Act.
(c) The Company shall furnish to any 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, and of the
Securities Act and the Exchange Act, (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
16
rule or regulation of the Commission allowing a holder of Restricted
Stock to sell any such securities without registration.
13 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 permitted assigns of the parties hereto
whether so expressed or not. Without limiting the generality of the
foregoing: (i) any holder of Restricted Stock may assign rights hereunder
with respect to any of its Restricted Stock to any transferee of such
Restricted Stock, provided that such transferee agrees in writing to
become a party hereto and to be bound as a holder of Restricted Stock
hereby.
(b) Any notice or other communications required or permitted
hereunder shall be deemed to be sufficient and received if contained in a
written instrument delivered in person or by courier or duly sent by first
class certified mail, postage prepaid, or by facsimile addressed to such
party at the address or facsimile number set forth below:
(1) if to the Company, to it at:
5080 Spectrum Drive
Suite 400, West Tower
Addison, Texas 75001
Telecopy Number: (972) 387-1938
Attention: General Counsel
with a copy to:
Reboul, MacMurray, Hewitt, Maynard & Kristol
45 Rockefeller Plaza
New York, New York 10111
Telecopy Number: (212) 841-5725
Attention: Othon A. Prounis
(2) if to any Stockholder, to the address of such Stockholder
appearing in Schedule I or Schedule II hereto;
or, in any case, at such other address or facsimile number as shall have
been furnished in writing by such party to the other parties hereto. In
the case of any notices, requests, claims, demands or other
communications to more than one FFT Purchaser and or their Permitted
Transferee, delivery thereof in accordance with the foregoing provisions
of this Section XII(5) to FFT shall be deemed to be delivery to all such
FFT Purchasers and their Permitted Transferees. All such notices,
requests, consents and other communications
17
shall be deemed to have been received (a) in the case of personal or
courier delivery, on the date of such delivery, (b) in the case of
mailing, on the fifth business day following the date of such mailing
and (c) in the case of facsimile, when received.
(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 signed by, and the Company will
not grant any registration rights, with respect to the equity securities
of the Company, to any other person without the consent of, the Company
and (i) the holders of a majority in interest of the Restricted Stock held
by the Schedule I Purchasers, (ii) the holders of a majority in interest
of the Restricted Stock held by the FFT Purchasers and (iii) if adversely
affected thereby, each of the holders of Restricted Stock so adversely
affected. Any waiver of any provision of this Agreement must be in a
writing signed by the party against whom enforcement of such waiver is
sought.
(e) This Agreement shall be of no force or effect unless and until
the consummation of the Merger (the "EFFECTIVE DATE"); upon such
consummation, this Agreement shall be in full force and effect.
(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) Headings and section reference numbers in this Agreement are for
reference purposes only and shall not in any way affect the meaning or
interpretation of this Agreement.
(h) In the event that any one or more of the provisions set forth
herein shall, for any reason, be held to be invalid, illegal or
unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect any other provision of this Agreement.
(i) Except as specifically set forth in Section 9 hereof, this
Agreement is not intended to confer any rights or remedies upon any person
other than the parties hereto.
(j) Each party hereto agrees that a remedy at law for any breach or
threatened breach by such party of this Agreement would be inadequate and
therefore agrees that any other party hereto shall be entitled to specific
performance of this Agreement in addition to any other available rights
and remedies in case of any such breach or threatened breach.
18
(k) Any party hereto may withdraw as a party to this Agreement
following an initial Public Offering by the Company by giving written
notice thereof to the Company.
(l) EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES ANY AND ALL
RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATED
TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
19
IN WITNESS WHEREOF, each of the parties hereto has executed this
Agreement as a sealed instrument, all as of the day and year first above
written.
CONCENTRA MANAGED CARE, INC.
By:/s/ Richard Parr II
------------------------------------
Name: Richard Parr II
Title: Executive Vice President and
General Counsel
WELSH, CARSON, ANDERSON & STOWE VIII, L.P.
By: WCAS VIII Associates, L.L.C., General Partner
By:/s/ Jonathan M. Rather
-----------------------------------
Managing Member
WCAS HEALTHCARE PARTNERS, L.P.
By: WCAS HC Partners, General Partner
By:/s/ Jonathan M. Rather
-----------------------------------
General Partner
WCAS CAPITAL PARTNERS III, L.P.
By: WCAS CP III Associates, L.L.C., General Partner
By:/s/ Jonathan M. Rather
---------------------------------
Managing Member
Patrick J. Welsh
Russell L. Carson
Bruce K. Anderson
Andrew M. Paul
Thomas E. McInerney
Robert A. Minicucci
Anthony J. deNicola
Paul B. Queally
Lawrence B. Sorrel
Rudolph E. Rupert
D. Scott Mackesy
Priscilla A. Newman
Laura M. VanBuren
Sean M. Traynor
John Almedia, Jr.
Jonathan M. Rather
By:/s/ Jonathan M. Rather
-------------------------------------
Jonathan M. Rather, Individually and
as Attorney-in-Fact
/s/ Daniel J. Thomas
-------------------------------
Daniel J. Thomas
/s/ James M. Greenwood
-------------------------------
James M. Greenwood
/s/ Richard A. Parr II
-------------------------------
Richard A. Parr II
/s/ W. Tom Fogarty, M.D.
-------------------------------
W. Tom Fogarty, M.D.
/s/ John Hamilton
-------------------------------
John Hamilton
/s/ Scott Henault
-------------------------------
Scott Henault
/s/ Kenneth Loffredo
-------------------------------
Kenneth Loffredo
/s/ Darla Walls
-------------------------------
Darla Walls
/s/ Thomas Cox
-------------------------------
Thomas Cox
/s/ Keith Newton
-------------------------------
Keith Newton
/s/ Gene Whobrey
-------------------------------
Gene Whobrey
/s/ Steve Nelson
-------------------------------
Steve Nelson
/s/ Jack Sherrer, M.D.
-------------------------------
Jack Sherrer, M.D.
/s/ Arthur Canario, M.D.
-------------------------------
Arthur Canario, M.D.
/s/ Craig R. Callen
-------------------------------
Craig R. Callen
/s/ James D. Hann
-------------------------------
James D. Hann
/s/ David L. Dennis
-------------------------------
David L. Dennis
/s/ Lawrence M. Lavine
-------------------------------
Lawrence M. Lavine
/s/ Kathleen F. Lamb
-------------------------------
Kathleen F. Lamb
/s/ William G. Payne
-------------------------------
William G. Payne
/s/ Michael R. Nicolais
-------------------------------
Michael R. Nicolais
/s/ Patrick W. McMullan
-------------------------------
Patrick W. McMullan
/s/ Douglas M. Ladden
-------------------------------
Douglas M. Ladden
/s/ Richard A. Landgarten
-------------------------------
Richard A. Landgarten
/s/ Vincent DeGiamo
-------------------------------
Vincent DeGiamo
JP MORGAN DIRECT CORPORATE FINANCE
INSTITUTIONAL INVESTORS, LLC
By: /s/ Julian E. Shles
-------------------------------
Name: Julian E. Shles
Title: Vice President of J.P. Morgan Investment
Management, Inc., as Investment Advisor
JP MORGAN DIRECT CORPORATE FINANCE PRIVATE
INVESTORS, LLC
By: /s/ Julian E. Shles
-------------------------------
Name: Julian E. Shles
Title: Vice President of J.P. Morgan Investment
Management, Inc., as Investment Advisor
CALIFORNIA PUBLIC EMPLOYEES' RETIREMENT SYSTEM
By: /s/ David E.J. Maxwell
-------------------------------
Name: David E. J. Maxwell
Title: Principal Investment Officer
CALIFORNIA STATE TEACHERS' RETIREMENT SYSTEM
By: /s/ Eileen Y. Okada
-----------------------------------
Name: Eileen Y. Okada
Title: Director of Investment Administration
and External Relations
CHASE EQUITY ASSOCIATES, L.P.
By: Chase Capital Partners,
its General Partner
By:/s/ Jonas Steinman
----------------------------
Name: Jonas Steinman
Title:
CMS CO-INVESTMENT SUBPARTNERSHIP II
By: CMS CO-INVESTMENT SUBPARTNERSHIP, a Delaware general
partnership
By: CMS Co-Investment Partners, L.P., a Delaware limited
partnership
By: CMS/Co-Investment Associates, L.P., a Delaware limited
partnership
By: MSPS/Co-Investment, Inc.,
a Delaware corporation
By:/s/ Richard Mitchell
----------------------------
Its: Vice President
By: CMS 1997 Investment Partners, L.P., a Delaware limited
partnership
By: CMS 1997, Inc.
a Delaware corporation
By:/s/ Richard Mitchell
----------------------------
Its: Vice President
By: CMS Co-Investment Partners I-Q, L.P., a Delaware limited
partnership
By: CMS/Co-Investment Associates, L.P., a Delaware limited
partnership
By: MSPS/Co-Investment, Inc.,
a Delaware corporation
By:/s/ Richard Mitchell
----------------------------
Its: Vice President
By: CMS 1997 Investment Partners, L.P., a Delaware limited
partnership
By: CMS 1997, Inc.
a Delaware corporation
By:/s/ Richard Mitchell
----------------------------
Its: Vice President
By:/s/ Ira Brind
-------------------
Ira Brind
By:/s/ Bruce Lindsay
--------------------
Bruce Lindsay
CMS DIVERSIFIED PARTNERS, L.P.
By: CMS/DP Associates, L.P, a general partner
By: MSPS/DP, Inc., its general partner
By:/s/ Richard Mitchell
----------------------------
Vice President
By: CMS 1995 Investment Partners, L.P, a general partner
By: CMS 1995, Inc., its general partner
By:/s/ Richard Mitchell
----------------------------
Vice President
BT CAPITAL INVESTORS, L.P.
By: /s/ Heidi Silverstein
---------------------------------
Name: Heidi Silverstein
Title: Director
FINANCIERE ET INDUSTRIELLE GAZ ET EAUX
By: /s/ Bertrand Soleil
---------------------
Name: Bertrand Soleil
Title:
GS PRIVATE EQUITY PARTNERS II, L.P.
By: GS PEP II Advisors, L.L.C.,
its General Partner
By: GSAM Gen-Par, L.L.C.,
its Managing Member
By:/s/ Jerome Truzzolino
-------------------------------
Name: Jerome Truzzolino
Title: Vice President
GS PRIVATE EQUITY PARTNERS II OFFSHORE, L.P.
By: GS PEP II Offshore Advisors, Inc.,
its General Partner
By:/s/ Jerome Truzzolino
-------------------------------
Name: Jerome Truzzolino
Title: Vice President
GS PRIVATE EQUITY PARTNERS II - DIRECT INVESTMENT
FUND, L.P.
By: GS PEP II Direct Investment Advisors, L.L.C.,
its General Partner
By: GSAM Gen-Par, L.L.C.,
its Managing Member
By:/s/ Jerome Truzzolino
-------------------------------
Name: Jerome Truzzolino
Title: Vice President
GS PRIVATE EQUITY PARTNERS III, L.P.
By: GS PEP III Advisors, L.L.C., its General
Partner
By: GSAM Gen-Par, L.L.C.,
its Managing Partner
By:/s/ Jerome Truzzolino
-------------------------------
Name: Jerome Truzzolino
Title: Vice President
GS PRIVATE EQUITY PARTNERS III OFFSHORE, L.P.
By: GS PEP III Offshore Advisors, Inc., its
General Partner
By:/s/ Jerome Truzzolino
-------------------------------
Name: Jerome Truzzolino
Title: Vice President
NBK/GS PRIVATE EQUITY PARTNERS, L.P.
By: GS PEP Offshore Advisors (NBK), Inc.
General Partner
By:/s/ Jerome Truzzolino
-------------------------------
Name: Jerome Truzzolino
Title: Vice President
HAMILTON LANE PRIVATE EQUITY PARTNERS, L.P.
By: HLSP Investment Management, LLC
By:/s/ Mario L. Giannini
-----------------------
Mario L. Giannini
Managing Member
HAMILTON LANE PRIVATE EQUITY FUND, PLC
By: HLSP Investment Management, LLC
By:/s/ Mario L. Giannini
-----------------------
Mario L. Giannini
Managing Member
A.S.F. CO-INVESTMENT PARTNERS, L.P.
By: /s/ Jonathan F. Murphy
------------------------
Name: Jonathan F. Murphy
Title: Managing Member of Old Kings I, LLC,
the Sole Member of PAF 10/98, LLC,
the Sole General Partner of A.S.F.
Co-Investment Partners, L.P.
368618.4
NASSAU CAPITAL PARTNERS III L.P.
By: Nassau Capital L.L.C.,
its General Partner
By:/s/ John G. Quigley
-------------------------
Name: John G. Quigley
Title: Member
NAS PARTNERS LLC
By: /s/ John G. Quigley
-------------------------
Name: John G. Quigley
Title: Member
NEW YORK LIFE INSURANCE COMPANY
By:/s/ Steven M. Benevento
-------------------------
Name: Steven M. Benevento
Title: Director
FERRER FREEMAN THOMPSON & CO.
on behalf of HEALTH CARE CAPITAL
PARTNERS L.P. and as its General Partner
and
on behalf of HEALTH CARE EXECUTIVE
PARTNERS L.P. and as its General Partner
By:/s/ CARLOS A. FERRER
-------------------------
Name: Carlos A. Ferrer
Title: Member, Ferrer Freeman Thompson & Co.
General Partner
SCHEDULE I
(continued)
SCHEDULE I
SCHEDULE I PURCHASERS
NAME AND ADDRESS OF PURCHASER
-----------------------------
Welsh, Carson, Anderson & Stowe VIII, L.P.
WCAS Healthcare Partners, L.P.
Patrick J. Welsh
Russell L. Carson
Bruce K. Anderson
Andrew M. Paul
Thomas E. McInerney
Robert A. Minicucci
Anthony J. deNicola
Paul B. Queally
Lawrence B. Sorrel
Rudolph E. Rupert
D. Scott Mackesy
Priscilla A. Newman
Laura M. VanBuren
Sean Traynor
John Almedia
Jonathan M. Rather
Daniel J. Thomas
James M. Greenwood
Richard A. Parr II
W. Tom Fogarty, M.D.
John Hamilton
Scott Henault
Kenneth Loffredo
Darla Walls
Thomas Cox
Keith Newton
SCHEDULE I
(continued)
NAME AND ADDRESS OF PURCHASER
-----------------------------
Gene Whobrey
Steve Nelson
Jack Sherrer, M.D.
Arthur Canario, M.D.
Craig R. Callen
James D. Hann
David L. Dennis
Lawrence M. Lavine
Kathleen F. Lamb
William G. Payne
Michael R. Nicolais
Patrick W. McMullan
Douglas M. Ladden
Richard A. Landgarten
Vincent DeGiaimo
JP Morgan Direct Corporate Finance
Institutional Investors, LLC
JP Morgan Direct Corporate Finance Private Investors, LLC
California Public Employees' Retirement System
California State Teachers' Retirement System
Chase Equity Associates, L.P.
CMS Co-Investment Subpartnership II
CMS Diversified Partners, L.P.
BT Capital Investors, L.P.
Financiere et Industrielle Gaz et Eaux
GS Private Equity Partners II, L.P.
GS Private Equity Partners II Offshore, L.P.
GS Private Equity Partners II
Direct Investment Fund, L.P.
GS Private Equity Partners III, L.P.
GS Private Equity Partners III Offshore, L.P.
NBK/GS Private Equity Partners, L.P.
Hamilton Lane Private Equity Partners, L.P.
Hamilton Lane Private Equity Fund, PLC
SCHEDULE I
(continued)
NAME AND ADDRESS OF PURCHASER
-----------------------------
A.S.F. Co-Investment Partners, L.P.
Nassau Capital Partners III L.P.
NAS Partners LLC
New York Life Insurance Company
c/o Welsh, Carson, Anderson & Stowe
320 Park Avenue, Suite 2500
New York, New York 10022
Attention: Paul B. Queally
Telecopy: (212) 893-9566
SCHEDULE II
FFT PURCHASERS
NAME AND ADDRESS OF PURCHASER
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Health Care Capital Partners L.P.
Health Care Executive Partners L.P.
c/o Ferrer Freeman Thompson & Co.
The Mill
10 Glenville Street
Greenwich, Connecticut 06831
Attention: Carlos Ferrer
Telecopy: (203) 532-8016
with a copy to:
Fried, Frank, Harris, Shriver & Jacobson
One New York Plaza
New York, New York 10004
Attention: David Golay
Telecopy: (212) 859-8164