EXHIBIT 10.1
AMENDED AND RESTATED AGREEMENT AMONG SHAREHOLDERS
This Amended And Restated Agreement Among Shareholders (this
"Agreement"), dated as of January 26, 2005, by and among Kinetic Concepts,
Inc., a Texas corporation (the "Company"), and each of the shareholders of the
Company identified on the signature pages hereto and their lawful successors
and assigns (each, a "Signatory" and collectively, the "Signatories") amends
and restates in its entirety that certain Agreement Among Shareholders, dated
November 5, 1997, as amended by (1) that certain Waiver and Consent, effective
as of September 27, 2002, (2) that certain Joinder and Amendment Agreement,
dated as of June 25, 2003, (3) that certain Amendment and Waiver, dated as of
August 11, 2003, (4) that certain Amendment, Acknowledgment and Waiver, dated
as of February 17, 2004 and (5) that certain Waiver of Registration Rights,
dated as of June 7, 2004 (as so amended, the "Prior Shareholder Agreement"),
effective as of the date hereof (the "Effective Date").
WHEREAS, the Company and each of the Signatories are parties to the
Prior Shareholder Agreement or are hereby joined as parties to the Agreement
with the consent of each prior party evidenced by its entering into this
Agreement; and
WHEREAS, the Company and the Signatories wish to amend and restate the
Prior Shareholder Agreement and enter into this Agreement in its stead;
NOW THEREFORE, in consideration of the foregoing and of the mutual
covenants hereinafter set forth, the parties hereto agree that the Prior
Shareholder Agreement is hereby amended and restated in its entirety to read as
follows, effective as of the Effective Date:
SECTION 1. Definitions. The following terms shall have the following
meanings for the purposes of this Agreement:
1.01 "Affiliated Shareholder" means with respect to any Fremont
Associate, any other Fremont Associate, and with respect to any RCBA Associate,
any other RCBA Associate.
1.02 "Common Stock" or "shares of Common Stock" means the common
stock, par value $0.001 per share, of KCI, (i) held by the Shareholders as of
the date hereof or (ii) issued as a dividend or other distribution with respect
to, or in exchange for or in replacement of such shares of Common Stock.
Notwithstanding the foregoing, Common Stock shall not include any securities
sold by a Person to the public either pursuant to a registration statement or
Rule 144 or sold in a private transaction in which the transferor's rights
under this Agreement are not assigned in accordance with the terms hereof.
1.03 "Dr. Leininger" means Dr. James R. Leininger, the founder of
KCI.
1.04 "Form S-3" means such form under the Securities Act as is in
effect on the date hereof or any successor registration form under the
Securities Act subsequently adopted by the Securities and Exchange Commission
(the "SEC") which permits inclusion or incorporation of substantial information
by reference to other documents filed by the Company with the SEC as well as a
continuous offering pursuant to Rule 415 under the Securities Act.
1.05 "Fremont Associates" means those Persons listed on Schedule
1.05.
1.06 "KCI" or the "Company" means Kinetic Concepts, Inc.
1.07 "Person" means any individual, firm, corporation, partnership,
limited liability company, trust, joint venture, pension fund, governmental
authority, or other entity.
1.08 "RCBA Associates" means those Persons listed on Schedule 1.08.
1.09 "Securities Act" means the Securities Act of 1933, as amended,
and the rules and regulations promulgated thereunder.
1.10 "Shareholder" means the Principal Shareholders and their
Affiliated Shareholders party to this Agreement, as well as any Person to whom
a Shareholder transfers shares of Common Stock if such Person (i) agrees in
writing to become a party to this Agreement and to be bound by its terms
without limitation or qualification, (ii) specifies in such writing the address
and facsimile number at which notices may be given pursuant to this Agreement,
and (iii) delivers a copy of such writing to KCI and the Principal Shareholders
within 10 days after the transfer of such shares of Common Stock.
1.11 "Principal Shareholders" means, collectively, the Dr.
Leininger, the Fremont Associates and the RCBA Associates.
1.12 Terms and Usage Generally. The definitions in this Section 1
shall apply equally to both the singular and plural forms of the terms defined.
Whenever the context may require, any pronoun shall include the corresponding
masculine, feminine, and neuter forms. All references herein to Sections and
Schedules shall be deemed to be references to Sections of and Schedules to this
Agreement unless the context shall otherwise require. All Schedules attached
hereto shall be deemed incorporated herein as if set forth in full herein. The
words "include," "includes," and "including" shall be deemed to be followed by
the phrase "without limitation." The words "hereof," "herein," and "hereunder"
and words of similar import when used in this Agreement shall refer to this
Agreement as a whole and not to any particular provision of this Agreement.
References to a Person are also to its permitted successors and permitted
assigns.
SECTION 2. Registration Rights.
2.01 Shelf Registration.
(a) Mandatory Registration. Subject to the limitations herein,
upon the written request of any of the Principal Shareholders, the Company
shall prepare and file with the SEC as promptly as practicable a registration
statement on Form S-3 pursuant to Rule 415 that includes for resale all of the
shares of Common Stock requested to be included by the requesting Shareholders.
(b) Limitations and Suspension. Notwithstanding the foregoing,
the Company shall not be obligated to effect a registration (or may suspend
sales) if the Company furnishes to the Shareholders a certificate signed by an
officer of the Company stating that, in his or her good faith judgment, there
is in existence material undisclosed information or events which, if disclosed,
could be detrimental to the Company or its shareholders. In such event the
Company shall have the right to defer the initial filing of the registration
statement or suspend sales thereunder; provided, that the Company may not take
any such action more than once in any twelve (12) month period and that all of
the Company's executive officers and directors shall be precluded from trading
in the Company's capital stock during such period; and provided further, that
the Company shall not defer the initial filing of the registration statement or
suspend sales thereunder pursuant to this paragraph (b) for more than thirty
(30) days in such twelve (12) month period.
2.02 Underwritten Take-down.
(a) Subject to paragraph (f) below, during calendar 2005:
(i) A Principal Shareholder then holding shares of Common
Stock may make one (1) written request to KCI for an underwritten
take-down from the shelf registration of at least thirty-three percent
(33%) of the aggregate shares of Common Stock then held by such Principal
Shareholder and its Affiliated Shareholders (a "Take-Down").
(ii) A request for a Take-Down under this Section 2.02(a)
will not count as a Take-Down unless the Shareholders electing to
participate in it are able to sell at least seventy-five percent (75%) of
the shares requested to be included in the Take-Down.
(iii) If each of the Principal Shareholders has
registration rights under this Agreement which have not expired under
Section 2.02(f), a Take-Down made by the Principal Shareholders pursuant
to this Section 2.02(a) must be made with the concurrence of the
representatives of two of the three Principal Shareholders, whether or not
they or their Affiliated Shareholders elect to participate in the proposed
offering. If one or more of the Principal Shareholders has registration
rights under this Agreement which have expired under Section 2.02(f), any
Principal Shareholder with such registration rights may request a
Take-Down.
(iv) If one or more Principal Shareholders request a
Take-Down under this Section 2.02(a), such Principal Shareholders shall
give three (3) business days written notice specifying the timing and
principal terms and conditions of the proposed Take-Down (the "Notice") to
the other Principal Shareholders with registration rights that have not
expired (the "Other Shareholders"), and such Other Shareholders with their
Affiliated Shareholders may join the requesting Principal Shareholder in
such Take-Down by giving written notice to the Company and the requesting
Principal Shareholder within one (1) business day after receiving the
Notice.
(b) Subject to paragraph (f) below, at any time after
December 1, 2005:
(i) The Principal Shareholders then holding shares of
Common Stock, collectively and not individually, may make one (1) written
request to KCI for a Take-Down of at least two million (2,000,000) shares
(as adjusted for any stock splits, dividends, and the like) of Common
Stock then held in aggregate by the Principal Shareholders; provided,
however, that the Company will not be required to effect a Take-Down
contemplated by this provision prior to January 1, 2006.
(ii) A request for a Take-Down under this Section 2.02(b)
will not count as a Take-Down unless the Principal Shareholders electing
to participate in it are able to sell at least seventy-five percent (75%)
of the shares of Common Stock requested to be included in the Take-Down.
(iii) A Take-Down made by the Principal Shareholders
pursuant to this Section 2.02(b) must be made with the concurrence of the
representatives of each of the Principal Shareholders with registration
rights that have not expired under Section 2.02(f), whether or not they or
their Affiliated Shareholders elect to participate in the proposed
offering.
(c) If, in connection with a Take-Down the managing
underwriters advise KCI in writing that, in their opinion, the number of
securities in such offering exceeds the number that can be sold in an orderly
manner within a price range acceptable to the Shareholders and to KCI, then the
number of such shares that the managing underwriters believe that may be sold
in such offering shall be allocated to the Shareholders on a pro rata basis in
accordance with the number of shares requested for inclusion in such Take-Down.
(d) In connection with any Take-Down, the investment bankers
and managers for the offering will be selected by the selling Shareholders,
subject to the approval of KCI, which will not be unreasonably withheld.
(e) KCI shall pay the expenses described in Section 2.06 for
any registration pursuant to this Section 2.02.
(f) Notwithstanding anything to the contrary set forth herein,
no Shareholder shall be entitled to any registration rights pursuant to this
Section 2.02 with respect to the shares held by a Shareholder as of the date
that such shares become eligible for resale pursuant to Section 144(k) under
the Securities Act; provided, however, that this paragraph (f) shall not be
applicable to (1) Dr. Leininger so long as he holds 1,000,000 shares of Common
Stock, (2) Fremont Associates so long as Fremont Associates collectively holds
1,000,000 shares of Common Stock or (3) RCBA Associates so long as RCBA
Associates collectively holds 1,000,000 shares of Common Stock (in each case,
as adjusted for ay stock splits, dividends and the like).
2.03 Piggyback Registration Rights.
(a) If at any time KCI shall determine to proceed with the
preparation and filing of a registration statement (other than a registration
statement on Form S-4, Form S-8, or other limited purpose form) under the
Securities Act in connection with KCI's or another securityholder's proposed
offer and sale of Common Stock or equity securities convertible into Common
Stock, KCI will give written notice of its determination to the Shareholders at
least twenty (20) days prior to filing the registration statement. Upon the
written request from a Shareholder given within ten (10) days after receipt of
any such notice from KCI, KCI will include the number of shares requested by
the Shareholder in such registration statement ("Piggyback Registration").
(b) If a Piggyback Registration is an underwritten primary
registration on behalf of KCI and the managing underwriters advise KCI in
writing that, in their opinion, the number of total securities to be registered
in such offering exceeds the number that can be sold in an orderly manner
within a price range acceptable to KCI, then the number of securities that the
managing underwriter believes may be sold in such offering shall be allocated
first to the shares being offered by KCI for inclusion in the registration
statement, then to the shares of the Shareholders and those of any other
shareholders ("Other Shareholders") who have registration rights under the
Investors' Rights Agreement (the "Investors' Rights Agreement"), dated August
11, 2003, including any amendments thereto as of the date of this Agreement, by
and among KCI, the Investors and the Sponsors (as those terms are defined in
the Investors' Rights Agreement) and the Management Equity Plan effective
October 2, 1997 submitted for registration, such that the number of shares
requested to be included by such shareholders shall be reduced pro rata among
the Shareholders and the Other Shareholders in accordance with the number of
shares they then hold that are entitled to registration rights.
(c) If a Piggyback Registration is an underwritten secondary
registration on behalf of the shareholders of KCI's securities and the managing
underwriters advise KCI in writing that, in their opinion, the number of total
securities to be registered in such offering exceeds the number that can be
sold in an orderly manner within a price range acceptable to the shareholders
initially requesting such registration, then the number of securities that the
managing underwriter believes may be sold in such offering shall be allocated
among the Shareholders and any Other Shareholders who are requesting shares to
be included in such registration statement such that the number of shares
requested to be included by such shareholders shall be reduced pro rata in
accordance with the number of shares they then hold that are entitled to
registration rights.
(d) KCI shall pay the expenses described in Section 2.06 for
registration statements filed pursuant to this Section 2.03.
(e) Notwithstanding anything to the contrary set forth herein,
no Shareholder shall be entitled to any registration rights pursuant to this
Section with respect to the shares held by a Shareholder as of the date that
such shares become eligible for resale pursuant to Section 144(k) under the
Securities Act; provided, however, that this paragraph (e) shall not be
applicable to (1) Dr. Leininger so long as he holds 1,000,000 shares of Common
Stock, (2) Fremont Associates so long as Fremont Associates collectively hold
1,000,000 shares of Common Stock or (3) RCBA Associates so long as RCBA
Associates collectively hold 1,000,000 shares of Common Stock (in each case, as
adjusted for ay stock splits, dividends and the like).
2.04 Registration Procedures. Whenever a Shareholder has
requested that KCI, pursuant to the provisions of Section 2.01, Section 2.02 or
Section 2.03, as applicable, effect the registration of Common Stock under the
Securities Act, KCI will:
(a) upon request pursuant to Section 2.01(a) hereof, prepare
and file with the SEC as promptly as practicable a registration statement with
respect to such securities and use its best efforts to cause such registration
statement to become and remain effective until the earlier of (i) the date that
all of the shares of Common Stock included therein have been sold and (ii) two
years from the date such registration statement is initially declared effective
by the SEC (the "Effective Period");
(b) as soon as reasonably practicable, prepare and file with
the SEC such amendments to such registration statement and supplements to the
prospectus contained therein as may be necessary to keep such registration
statement effective for the Effective Period as may be reasonably necessary to
effect the sale of such securities pursuant to a Take-Down or otherwise,
including, without limitation, resales that are not a Take-Down;
(c) furnish to such Shareholder and to the underwriters for
the securities being registered such reasonable number of copies of the
registration statement, preliminary prospectus, final prospectus, and such
other documents as such Shareholder and such underwriters may reasonably
request in order to facilitate the public offering or resale of such
securities;
(d) use its best efforts to register or qualify the Common
Stock covered by such registration statement under such state securities or
blue sky laws of such jurisdictions as such Shareholder may reasonably request
in writing within ten (10) days following the original filing of such
registration statement, except that KCI shall not for any purpose be required
to execute a general consent to service of process or to qualify to do business
as a foreign corporation in any jurisdiction wherein it is not so qualified or
subject itself to taxation in a jurisdiction where it had not previously been
subject to taxation or take any other action that would subject KCI to service
of process in a lawsuit other than one arising out of the registration of the
Common Stock;
(e) cause all such registered shares of Common Stock to be
listed on an exchange or NASDAQ by filing a subsequent listing application;
(f) notify such Shareholder, promptly after it shall receive
notice thereof, of the time when such registration statement has become
effective or a supplement to any prospectus forming a part of such registration
statement has been filed;
(g) notify such Shareholder promptly of any request by the SEC
for the amending or supplementing of such registration statement or prospectus
or for additional information;
(h) prepare and promptly file with the SEC and promptly notify
such Shareholder of the filing of such amendment or supplement to such
registration statement or prospectus as may be necessary to correct any
statements or omissions if, at any time when a prospectus relating to such
securities is required to be delivered under the Securities Act, any event
shall have occurred as the result of which any such prospectus or any other
prospectus as then in effect would include an untrue statement of a material
fact or omit to state any material fact necessary to make the statements
therein, in light of the circumstances in which they were made, not misleading;
(i) advise such Shareholder, promptly after it shall receive
notice or obtain knowledge thereof, of the issuance of any stop order by the
SEC suspending the effectiveness of such registration statement or the
initiation or threatening of any proceeding for that purpose and promptly use
its best efforts to prevent the issuance of any stop order or to obtain its
withdrawal if such stop order should be issued; and
(j) enter into such customary agreements for the type of
offering contemplated (including an underwriting agreement in customary form,
which may include customary indemnification provisions in favor of the
underwriters) and take such other actions (including participation in a road
show) as the Principal Shareholders or underwriters may reasonably request in
order to expedite or facilitate the disposition of shares of Common Stock.
2.05 Underwriting. A Shareholder may not participate in any
registration hereunder unless such Shareholder (a) agrees to sell its shares of
Common Stock on the basis provided in the underwriting arrangements, if any,
and (b) completes and executes all questionnaires, powers of attorney,
indemnities, underwriting agreements, and other documents reasonably required
under the terms of such underwriting arrangements, if any, and these
registration rights.
2.06 Expenses. With respect to any registration requested
pursuant to Sections 2.01 and 2.02 hereof and with respect to an inclusion of a
Shareholder's shares of Common Stock in a registration statement pursuant to
Section 2.03 hereof, all fees, costs, and expenses of such registration,
inclusion, and public offering, including, without limitation, all
registration, filing, and listing fees, printing expenses, fees and
disbursements of legal counsel and accountants for KCI, and all legal fees and
disbursements and other expenses of complying with state securities or blue sky
laws of any jurisdictions in which the securities to be offered are to be
registered and qualified, shall be borne by KCI; provided, however, that each
Shareholder shall bear its own attorney fees and the underwriting commissions
and registration fees with respect to the sale of its shares of Common Stock.
2.07 Indemnification.
(a) KCI will indemnify and hold harmless each Shareholder and
any underwriter (as defined in the Securities Act) for a Shareholder and each
person, if any, who controls such Shareholder or underwriter within the meaning
of the Securities Act, from and against and will reimburse the Shareholder and
each such underwriter and controlling person with respect to, any and all loss,
damage, liability, cost, and expense to which the Shareholder or any such
underwriter or controlling person may become subject under the Securities Act
or otherwise, insofar as such losses, damages, liabilities, costs, or expenses
are caused by any untrue statement or alleged untrue statement of any material
fact contained in such registration statement, any prospectus contained
therein, or any amendment or supplement thereto 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, in light of
the circumstances in which they were made, not misleading; provided, however,
that KCI will not be liable in any such case to the extent that any such loss,
damage, liability, cost, 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 furnished in writing by a Shareholder, such
underwriter, or such controlling person specifically for use in the preparation
thereof. KCI will not be subject to any liability for any settlement made
without its consent, which consent shall not be unreasonably withheld.
(b) Each Shareholder will indemnify and hold harmless KCI, its
directors and officers, any controlling person, and any underwriter thereof
from and against, and will reimburse KCI, its directors and officers, any
controlling person, and any underwriter thereof with respect to, any and all
loss, damage, liability, cost, or expense to which KCI or any controlling
person and/or any underwriter thereof may become subject under the Securities
Act or otherwise, insofar as such losses, damages, liabilities, costs, or
expenses are caused by any untrue statement or alleged untrue statement of any
material fact contained in such registration statement, any prospectus
contained therein, or any amendment or supplement thereto 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,
in light of the circumstances in which they were made, not misleading, in each
case to the extent, but only to the extent, that such untrue statement or
alleged untrue statement or omission or alleged omission was so made in
reliance upon and in conformity with information furnished in writing by or on
behalf of the Shareholder specifically for use in the preparation thereof. A
Shareholder will not be subject to any liability for any settlement made
without its consent, which consent shall not be unreasonably withheld.
(c) Promptly after receipt by an indemnified party pursuant to
the provisions of paragraph (a) or (b) of this Section 2.07 of notice of the
commencement of any action involving the subject matter of the foregoing
indemnity provisions, such indemnified party will, if a claim thereof is to be
made against the indemnifying party pursuant to the provisions of said
paragraph (a) or (b), promptly notify the indemnifying party of the
commencement thereof; but the omission to so notify the indemnifying party will
not relieve it from any liability that it may have to any indemnified party
otherwise than hereunder, except to the extent that such omission materially
and adversely affects the indemnifying party's ability to defend against or
compromise such claim. In case such action is brought against any indemnified
party and it notifies the indemnifying party of the commencement thereof, the
indemnifying party shall have the right to participate in and, to the extent
that it may wish, jointly with any other indemnifying party similarly notified,
to assume the defense thereof, with counsel satisfactory to such indemnified
party; provided, however, that if the defendants in any action include both the
indemnified party and the indemnifying party and there are legal defenses
available to the indemnified party and/or other indemnified parties that are
different from or in addition to those available to the indemnifying party or
if there is a conflict of interest that would prevent counsel for the
indemnifying party from also representing the indemnified party, the
indemnified party or parties shall have the right to select separate counsel to
participate in the defense of such action on behalf of such indemnified party
or parties. After notice from the indemnifying party to an indemnified party of
its election so to assume the defense thereof, the indemnifying party will not
be liable to such indemnified party pursuant to the provisions of said
paragraph (a) or (b) for any legal or other expense subsequently incurred by
such indemnified party in connection with the defense thereof other than costs
of investigation, unless (i) the indemnified party shall have employed counsel
in accordance with the provisions of the preceding sentence, (ii) the
indemnifying party shall not have employed counsel satisfactory to the
indemnified party to represent the indemnified party within a reasonable time
after the notice of the commencement of the action, or (iii) the indemnifying
party has authorized the employment of counsel for the indemnified party at the
expense of the indemnifying party.
(d) If for any reason the foregoing indemnification is
unavailable or is insufficient to hold harmless an indemnified party, then the
indemnifying party shall contribute to the amount paid or payable by the
indemnified party as a result of such losses, claims, damages, liabilities, or
expenses in such proportion as is appropriate to reflect the relative fault of
the indemnifying party on the one hand and the indemnified party on the other
hand in connection with the statement or omission that resulted in the losses,
claims, damages, liabilities, or expenses, as well as any other relevant
equitable considerations. 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 was not guilty of such fraudulent
misrepresentation.
(e) Notwithstanding the termination of the Prior Shareholder
Agreement or anything to the contrary set forth herein, the provisions of this
Section 2.07, subject to the limitations therein, shall apply to the
Shareholders and Signatories with respect to the registration statements, any
prospectus contained therein, or any amendment or supplement thereto, filed
with the SEC and used in connection with the Company's initial public offering
completed February 27, 2004 and the follow-on public offering completed June
22, 2004.
2.08 Liabilities and Indemnification.
(a) Unless otherwise expressly assumed in writing:
(i) none of the Signatories shall be liable to any third
parties for any actions, commitments, or debts of any other as a
shareholder of KCI; and
(ii) each of the Signatories shall take all reasonable
steps to negotiate and preclude exposing any of the other of them to any
such liability to any third party.
(b) To the extent any Signatory is presented with a demand or
made party to an adjudication by a third party asserting their potential
liability as a shareholder of KCI for any acts or omissions by any other party
or parties to this Agreement, they shall notify the other party or parties in
writing promptly, and upon the receipt of such notice the notified party or
parties will assume the responsibility for the defense, resolution, and/or
satisfaction of the claim and in all respects indemnify the party that is faced
with such a claim to the full extent of that party's costs and ultimate
liabilities, if any.
SECTION 3. Miscellaneous.
3.01 Notices. Except as otherwise expressly provided in this
Agreement, all notices, requests, and other communications to any party
hereunder shall be in writing (including a facsimile or similar writing) and
shall be given to such party at the address or facsimile number specified for
such party on Schedule 3.01 hereto or as such party shall hereafter specify for
that purpose by notice to the other parties. Each such notice, request, or
other communication shall be deemed given, received or otherwise delivered
effective (i) if given by facsimile, at the time such facsimile is transmitted
and the appropriate confirmation is received (or, if such time is not during a
business day, at the beginning of the next such business day), (ii) if given by
mail, three business days (or, if to an address outside the United States,
seven calendar days) after such communication is deposited in the mails with
first-class postage prepaid, addressed as aforesaid, or (iii) if given by any
other means, when delivered at the address specified pursuant to this Section
3.01.
3.02 No Third Party Beneficiaries. This Agreement is not intended
to confer any rights or remedies hereunder upon, and shall not be enforceable
by, any Person other than the parties hereto.
3.03 Integration. This Agreement constitutes the entire agreement
among the parties hereto and thereto pertaining to the subject matter hereof
and thereof and supersedes all prior agreements and understandings of the
parties in connection herewith and therewith, including, without limitation,
the Prior Shareholder Agreement, and no covenant, representation, or condition
not expressed in this Agreement, shall affect, or be effective to interpret,
change, or restrict, the express provisions of this Agreement.
3.04 Headings. The titles of the Sections of this Agreement are for
convenience only and shall not be interpreted to limit or amplify the
provisions of this Agreement.
3.05 Counterparts. This Agreement may be executed in multiple
counterparts, each of which shall be deemed an original and all of which, taken
together, shall constitute one and the same instrument, which may be
sufficiently evidenced by one counterpart.
3.06 Severability. Each provision of this Agreement shall be
considered separable and if for any reason any provision or provisions hereof
are determined to be invalid and contrary to any existing of future law, such
invalidity shall not impair the operation of or affect those portions of this
Agreement that are valid.
3.07 Applicable Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Delaware without giving
effect to the conflicts of law principles thereof.
3.08 Non-Assignability. Except as otherwise set forth herein, all
of the rights and obligations of the parties to this Agreement are intended to
be exercisable and fulfilled by the parties themselves, as presently
constituted. Except as otherwise set forth herein, none of those rights or
obligations may be assigned, assumed, or transferred without the written
informed consent of the counterparties.
3.09 Amendment and Consent; Waiver. Any provision of this Agreement
may be amended and the observance thereof may be waived (either generally or in
a particular instance and either retroactively or prospectively) only with the
written consent of the Company and each of the Shareholders holding
registration rights that have not expired under Sections 2.02(f) or 2.03(e);
provided that any action or consent to be taken on behalf of any or all of the
Fremont Associates may be taken by Fremont Partners, L.L.C., and any action or
consent to be taken by any or all of the RCBA Associates may be taken by Blum
Strategic Partners II, L.P. Any amendment or waiver effected in accordance with
this Section 3.09 shall be binding upon each Signatory and the Company. No
failure by any party to insist upon the strict performance of any covenant,
agreement, term or condition of this Agreement or to the exercise of any right
or remedy consequent upon a breach of such or any other covenant, agreement,
term or condition shall operate as a waiver of such or any other covenant,
agreement, term or condition of this Agreement.
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IN WITNESS WHEREOF, this Amended and Restated Agreement Among
Shareholders has been duly executed by the parties as of the day and year first
above written.
FREMONT PARTNERS, L.P.
By: FP Advisors, L.L.C.
Its: General Partner
By: Fremont Group, L.L.C.
Its: Managing Member
By: Fremont Investors, Inc.
Its: Manager
By: _________________________
Name:
Title:
FREMONT-KCI CO-INVESTMENT COMPANY, L.L.C.
By: FP Advisors, L.L.C.
Its: Managing Member
By: Fremont Group, L.L.C.
Its: Managing Member
By: Fremont Investors, Inc.
Its: Manager
By: _________________________
Name:
Title:
FREMONT-KCI CO-INVESTMENT
COMPANY II, L.L.C.
By: FP Advisors, L.L.C.
Its: Managing Member
By: Fremont Group, L.L.C.
Its: Managing Member
By: Fremont Investors, Inc.
Its: Manager
By: ___________________________
Name:
Title:
FREMONT ACQUISITION COMPANY II, L.L.C.
By: Fremont Partners, L.P.
Its: Member
By: FP Advisors, L.L.C.
Its: General Partner
By: Fremont Group, L.L.C.
Its: Managing Member
By: Fremont Investors, Inc.
Its: Manager
By: _____________________
Name:
Title:
FREMONT ACQUISITION COMPANY IIA, L.L.C.
By: FP Advisors, L.L.C.
Its: Manager
By: Fremont Group, L.L.C.
Its: Managing Member
By: Fremont Investors, Inc.
Its: Manager
By: _________________________
Name:
Title:
FREMONT PARTNERS III, L.P.
By: FP Advisors III, L.L.C.
Its: General Partner
By: Fremont Group, L.L.C.
Its: Sponsoring Member
By: Fremont Investors, Inc.
Its: Manager
By: __________________________
Name:
Title:
FREMONT PARTNERS III SIDE-BY-SIDE, L.P.
By: Fremont Group, L.L.C.
Its: General Partner
By: Fremont Investors, Inc.
Its: Manager
By: __________________________
Name:
Title:
FREMONT PARTNERS, L.L.C.
By: Fremont Group, L.L.C.
Its: Managing Member
By: Fremont Investors, Inc.
Its: Manager
By: _________________________
Name:
Title:
FREMONT PARTNERS III, L.L.C.
By: Fremont Group, L.L.C.
Its: Managing Member
By: Fremont Investors, Inc.
Its: Manager
By: __________________________
Name:
Title:
BLUM CAPITAL PARTNERS, L.P.
By: Richard C. Blum & Associates, Inc.
Its: General Partner
By: ________________________________
Name:
Title:
BLUM STRATEGIC PARTNERS II, L.P.
By: Blum Strategic GP II, L.L.C.
Its: General Partner
By: _______________________________
Name:
Title:
BLUM STRATEGIC PARTNERS II GmbH & Co. KG
By: Blum Strategic GP II, L.L.C.
Its: Managing Limited Partner
By: ________________________________
Name:
Title:
STINSON CAPITAL PARTNERS II, L.P.
By: Blum Capital Partners, L.P.
Its: General Partner
By: Richard C. Blum & Associates, Inc.
Its: General Partner
By: ____________________________
Name:
Title:
RCBA-KCI CAPITAL PARTNERS, L.P.
By: Blum Capital Partners, L.P.
Its: General Partner
By: Richard C. Blum & Associates, Inc.
Its: General Partner
By: ____________________________
Name:
Title:
__________________________________________
James R. Leininger, M.D.
__________________________________________
Peter A. Leininger
__________________________________________
Daniel E. Leininger
1987 BRIAN C. LEININGER TRUST
By: __________________________________
Name: Peter A. Leininger
Title: Trustee
1987 KELLY C. LEININGER TRUST
By: __________________________________
Name: Peter A. Leininger
Title: Trustee
1987 TRACY M. LEININGER TRUST
By: __________________________________
Name: Peter A. Leininger
Title: Trustee
1992 JOSHUA A. LEININGER TRUST
By: __________________________________
Name: Peter A. Leininger
Title: Trustee
KINETIC CONCEPTS, INC.
By: __________________________________
Name:
Title:
SCHEDULE 1.05
-------------
Fremont Associates:
Fremont Acquisition Company II, L.L.C.
Fremont Acquisition Company IIA, L.L.C.
Fremont-KCI Co-Investment Company, L.L.C.
Fremont-KCI Co-Investment Company II, LLC
Fremont Partners III, L.P.
Fremont Partners III Side-by-Side, L.P.
Fremont Partners, L.L.C.
Fremont Partners III, L.L.C.
Freemont Offshore Associates Ltd.
Fremont Sequoia Holdings, L.P.
FP Advisors, L.L.C.
FP Advisors III, L.L.C.
FP Advisors III, L.P.
Fremont Group L.L.C.
Fremont Investors, Inc.
Sequoia Investors, Inc.
Robert Jaunich
James Farrell
SCHEDULE 1.08
-------------
RCBA Associates:
RCBA-KCI Capital Partners, L.P.
Stinson Capital Partners II, L.P.
Blum Strategic Partners II, L.P.
Blum Strategic Partners II GmbH & Co. KG
SCHEDULE 3.01
-------------
Shareholder Addresses for Notice:
Fremont, or any member thereof 199 Fremont Street, Suite 2300
San Francisco, CA 94105
Facsimile: (415) 284-8191
Attention: Kevin Baker, Esq.
with a copy to:
Simpson Thacher & Bartlett LLP
333 Hillview Avenue
Palo Alto, CA 94304
Facsimile: (650) 251-5002
Attention: William B. Brentani
Dr. Leininger 8122 Datapoint Drive, Suite 1000
San Antonio, Texas 78229
Facsimile: (210) 614-5841
Attention: Thomas W. Lyles, Jr.,
President
RCBA, or any member thereof Richard C. Blum & Associates, L.P.
909 Montgomery Street, Suite 400
San Francisco, CA 94133
Facsimile: (415) 434-3130
Attention: Gregory Hitchan, Esq.
with a copy to:
Simpson Thacher & Bartlett LLP
333 Hillview Avenue
Palo Alto, CA 94304
Facsimile: (650) 251-5002
Attention: William B. Brentani
Peter A. Leininger 12000 Huebner Road
Suite 103
San Antonio, TX 78230
Daniel E. Leininger 233 Providence Trail
Spring Branch, TX 78070
with a copy to:
Each of:
c/o Peter A. Leininger
1987 Brian C. Leininger Trust 12000 Huebner Road
1987 Kelly C. Leininger Trust Suite 103
1987 Tracy M. Leininger Trust San Antonio, TX 78230
1992 Joshua A. Leininger Trust