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EXHIBIT 10.10
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MQ ASSOCIATES, INC.
STOCKHOLDERS' AGREEMENT
DATED AS OF AUGUST 15, 2002
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TABLE OF CONTENTS
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PAGE
ARTICLE I DEFINITIONS; RULES OF CONSTRUCTION.......................................1
1.1 DEFINITIONS.................................................................1
1.2 RULES OF CONSTRUCTION.......................................................8
ARTICLE II ISSUANCES AND TRANSFERS OF SECURITIES...................................9
2.1 ISSUANCES AND TRANSFERS OF SECURITIES.......................................9
2.2 CERTAIN TRANSFERS...........................................................9
2.3 CO-SALE RIGHTS..............................................................9
2.4 RIGHT OF FIRST REFUSAL.....................................................10
2.5 REQUIRED SALE IN CONNECTION WITH A SALE OF THE COMPANY.....................12
2.6 REPURCHASE RIGHT OF THE COMPANY............................................14
2.7 RIGHT OF FIRST OFFER.......................................................16
ARTICLE III BOARD.................................................................17
3.1 ELECTION OF DIRECTORS, VOTING..............................................17
3.2 VOTING AGREEMENT...........................................................19
3.3 OBSERVATION RIGHTS.........................................................19
ARTICLE IV ADDITIONAL AGREEMENTS..................................................20
4.1 ACCESS TO RECORDS AND PROPERTIES...........................................20
4.2 CONFIDENTIAL INFORMATION...................................................20
4.3 REGULATORY MATTERS.........................................................20
4.4 EXPENSES...................................................................21
4.5 2001 MANAGEMENT NOTES......................................................22
ARTICLE V SECURITIES LAW COMPLIANCE; LEGENDS......................................22
5.1 RESTRICTION ON TRANSFER....................................................22
5.2 RESTRICTIVE LEGENDS........................................................22
5.3 NOTICE OF TRANSFER.........................................................22
5.4 REMOVAL OF LEGENDS, ETC....................................................23
5.5 ADDITIONAL LEGEND..........................................................23
ARTICLE VI AMENDMENT AND WAIVER...................................................24
6.1 AMENDMENT..................................................................24
6.2 WAIVER.....................................................................24
ARTICLE VII TERMINATION...........................................................24
ARTICLE VIII MISCELLANEOUS........................................................25
8.1 SEVERABILITY...............................................................25
8.2 ENTIRE AGREEMENT...........................................................25
8.3 INDEPENDENCE OF AGREEMENTS, COVENANTS, REPRESENTATIONS AND WARRANTIES......25
8.4 SUCCESSORS AND ASSIGNS.....................................................26
8.5 COUNTERPARTS; FACSIMILE SIGNATURES; VALIDITY...............................26
8.6 REMEDIES...................................................................26
8.7 NOTICES....................................................................26
8.8 GOVERNING LAW..............................................................28
8.9 WAIVER OF JURY TRIAL.......................................................28
8.10 MEDIATION; CONSENT TO JURISDICTION.........................................28
8.11 FURTHER ASSURANCES.........................................................29
8.12 CONFLICTING AGREEMENTS.....................................................29
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(i)
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8.13 THIRD PARTY RELIANCE.......................................................29
8.14 THIRD PARTY BENEFICIARY....................................................29
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(ii)
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STOCKHOLDERS' AGREEMENT,
dated as of August 15, 2002, among MQ
ASSOCIATES, INC. a Delaware corporation (the
"COMPANY"), and each of the STOCKHOLDERS
named on SCHEDULE I hereto.
Each Stockholder currently owns, or has the right to purchase or
otherwise acquire (by the exercise, exchange or conversion of Securities of the
Company owned by such Stockholder), such number and class of shares of capital
stock of the Company as set forth opposite the name of such Stockholder on
SCHEDULE I hereto. The parties hereto desire to provide for the terms with
respect to certain matters regarding the relationship between the Company and
the Stockholders and the relationship among the Stockholders.
ACCORDINGLY, in consideration of the mutual covenants and agreements
contained in this Agreement, the sufficiency of which is hereby acknowledged,
the parties agree as set forth below.
ARTICLE I
DEFINITIONS; RULES OF CONSTRUCTION
1.1 DEFINITIONS.
The capitalized terms used in this Agreement have the meanings set forth
below.
"AFFILIATE" means, with respect to any Person, a Person that directly,
or indirectly through one or more intermediaries, Controls, or is Controlled by,
or is under common Control with, such Person.
"APPROVED SALE" has the meaning ascribed to it in SECTION 2.5(a).
"AUTHORIZED REPRESENTATIVES" has the meaning ascribed to it in
SECTION 4.1.
"BOARD" means the board of directors of the Company.
"BUSINESS DAY" means any day that is not (a) a Saturday, Sunday, or
legal holiday or (b) a day on which banks are not required to be open in New
York, New York.
"BY-LAWS" means the By-laws of the Company, as the same may from time
to time be amended, restated, supplemented or otherwise modified.
"CAUSE" means a finding by the Board that a Management Stockholder has
(a) acted with gross negligence or willful misconduct in connection with the
performance of his duties under his employment agreement with the Company, (b)
committed an act of common law fraud against the Company or its executive
officers; (c) been convicted of a felony; (d) embezzled assets of the Company;
or (e) engaged in an activity constituting moral turpitude, which in the
discretion of the Board has had a material adverse impact on the performance of
such Management Stockholder's duties under his employment agreement with the
Company.
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"CLOSING DATE" has the meaning ascribed to it in the Recapitalization
Agreement.
"COMMISSION" means the Securities and Exchange Commission or any other
federal agency at the time administering the Securities Act.
"COMMITMENT" has the meaning ascribed to it in SECTION 2.5(d).
"COMMON STOCK" means, collectively, all of the common stock of the
Company of any class and any other class of capital stock of the Company
hereafter authorized that is not limited to a fixed sum or percentage of par or
stated value with respect to the rights of the holders thereof to participate in
dividends and in the distribution of assets upon any liquidation, dissolution or
winding up of the Company.
"COMMON STOCK EQUIVALENT" means, at any time, one share of Common
Stock or the right to acquire, whether or not such right is immediately
exercisable, one share of Common Stock, whether evidenced by an option, warrant,
convertible security or other instrument or agreement.
"COMMON STOCKHOLDER" means, collectively, the Investor Stockholders
and the Management Stockholders.
"COMPANY" has the meaning ascribed to it in the caption.
"CONTROL" means, (including, with correlative meaning, the terms
"controlling," "controlled by" and "under common control with") with respect to
any Person, the possession, directly or indirectly, of the power to direct or
cause the direction of the management, policies or investment decisions of such
Person, whether through the ownership of voting securities, by contract or
otherwise.
"CREDIT AGREEMENT" means the Credit Agreement, dated as of the date
hereof, between the Company, the financial institutions party thereto as lenders
and the other signatories thereto, as the same may be amended from time to time.
"DIRECTORS" has the meaning ascribed to it in SECTION 3.1(e).
"DOCUMENT(S)" means individually or collectively, this Agreement, the
Restated Certificate, the Registration Rights Agreement, and the Regulatory
Sideletter.
"DRAG NOTICE" has the meaning ascribed to it in SECTION 2.5(b).
"FAIR MARKET VALUE" shall mean, with respect to any Stockholder Share,
as of any date of determination, an amount equal to the quotient obtained by
dividing (i) the product of (a) 5.0 and (b) TTM EBITDA, by (ii) the number of
outstanding shares of capital stock of the Company determined on a fully diluted
basis after giving effect to the exercise or exchange of all Common Stock
Equivalents; PROVIDED, HOWEVER, that, until the first anniversary of the Closing
Date, Fair Market Value shall mean an amount equal to the greater of (A) Fair
Market Value as determined pursuant to the preceding sentence and (B) the
Original Cost of such Stockholder Share.
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"FIRST REFUSAL OFFER" has the meaning ascribed to it in
SECTION 2.4(b).
"GAAP" means generally accepted accounting principles in the United
States, as in effect from time to time, consistently applied.
"INVESTOR DIRECTORS" means the directors designated and appointed
pursuant to SECTIONS 3.1(a)(i) and (ii), from time to time.
"INVESTOR STOCKHOLDERS" means, collectively, (a) the Persons listed on
SCHEDULE I attached hereto under the heading "Investor Stockholders," (b) any
Person who is or becomes a holder of Stockholder Shares by Transfer of such
Stockholder Shares and who is, at the time of such Transfer, a Permitted
Transferee of such Investor Stockholder, (c) any successor to any Investor
Stockholder and (d) any Person who becomes a party to this Agreement as an
Investor Stockholder pursuant to SECTIONS 2.1 or 2.2(b).
"JOINDER AGREEMENT" has the meaning ascribed to it in SECTION 2.1.
"JPMP GLOBAL INVESTORS" means J.P. Morgan Partners Global Investors,
L.P.
"LIMITED TRANSFER PERIOD" has the meaning ascribed to it in
SECTION 2.7(a)(vi).
"MANAGEMENT STOCKHOLDERS" means, collectively, (a) the Persons listed
on SCHEDULE I attached hereto under the heading "Management Stockholders," (b)
any Person who is or becomes a holder of Stockholder Shares by Transfer of such
Stockholder Shares and who is, at the time of such Transfer, a Permitted
Transferee of such Management Stockholder, (c) any successor to any Management
Stockholder and (d) any Person who becomes a party to this Agreement as a
Management Stockholder pursuant to SECTIONS 2.1 or 2.2(b).
"MANAGEMENT STOCKHOLDERS AMOUNT" has the meaning ascribed to it in
SECTION 2.7(a)(iv).
"MANAGEMENT STOCKHOLDERS' OFFER" has the meaning ascribed to it in
SECTION 2.7(a)(iv).
"MANAGEMENT STOCKHOLDERS' REJECTION" has the meaning ascribed to it in
SECTION 2.7(a)(iii).
"MQ HOLDINGS" means MQ Investment Holdings, LLC, and its successors
and assigns.
"NOTES" means any of the 11 7/8% Senior Subordinated Notes of the
Company due 2012.
"NOTICE OF OFFER" has the meaning ascribed to it in SECTION 2.4(b).
"OBSERVER" has the meaning ascribed to such term in SECTION 3.3(a).
"OFFER" has the meaning ascribed to it in SECTION 2.4(b).
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"OFFEREES" has the meaning ascribed to it in SECTION 2.4(b).
"OFFEROR" has the meaning ascribed to it in SECTION 2.4(b).
"ORIGINAL COST" means $1.00 per share of Common Stock and $1.00 per
share of Preferred Stock, as adjusted for stock splits, reverse stock splits,
stock combinations and similar events.
"OTHER STOCKHOLDERS" has the meaning ascribed to it in SECTION 2.3(a).
"PERCENTAGE OWNERSHIP" means with respect to any Stockholder, the
fraction, expressed as a percentage, the numerator of which is the total number
of Stockholder Shares held by such Stockholder and the denominator of which is
the total number of Stockholder Shares issued and outstanding at the time of
determination (excluding, in each case, any options, warrants or similar
Securities).
"PERMITTED TRANSFER" means (a) with respect to a Management
Stockholder, any Transfer by such Management Stockholder to (i) the spouse or
any lineal descendant (including adopted children) of such Management
Stockholder, (ii) any trust solely for the benefit of such Management
Stockholder or the spouse or lineal descendants (including adopted children) of
such Management Stockholder, (iii) a family trust, partnership or limited
liability company established solely for the benefit of such Management
Stockholder or such Management Stockholder's spouse or lineal descendants
(including adopted children) or for estate planning purposes, PROVIDED that, in
the case of clauses (ii) and (iii), such trust, family trust, partnership or
limited liability company remains under the Control of such Management
Stockholder, (iv) the heirs, executors, administrators, guardian or conservator
of such Management Stockholder or a trust created under such Management
Stockholder's will, or (v) any Transferee approved by the Requisite Holders, and
(b) with respect to a Stockholder who is not a Management Stockholder, any
Transfer by such Stockholder (i) to any Affiliate of such Stockholder, (ii) to
any member or partner of, or holder of equity or other ownership interests or
units in, such Stockholder, (iii) to any Transferee approved by the Requisite
Holders, or (iv) that is permitted pursuant to the Regulatory Sideletter;
PROVIDED, HOWEVER, that, (x) in each case, such Permitted Transfer must be made
in accordance with SECTION 2.2(b) and (y) in the case of clause (iv) if such
Transfer is to a non-Affiliate, then such transferor shall use its good faith
reasonable efforts to permit the other Stockholders to exercise co-sale rights
in accordance with SECTION 2.3, PROVIDED that, in no event shall such other
Stockholders be entitled to any co-sale rights in connection with such a
Transfer would restrict or otherwise inhibit such transferor's ability to
resolve its Regulatory Problem.
"PERMITTED TRANSFEREE" means any Person to whom a Permitted Transfer
is made.
"PERSON" shall be construed as broadly as possible and shall include
an individual or natural person, a partnership (including a limited liability
partnership), a corporation, an association, a joint stock company, a limited
liability company, a trust, a joint venture, an unincorporated organization and
a governmental authority.
"PREFERRED STOCK" means, collectively, the Series A Preferred Stock,
$.001 per value per share, of the Company, the Series B Preferred Stock, $.001
par value per share, of the
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Company, and any other class a series of preferred stock of the Company issued
after the date hereof.
"PRINCIPAL MANAGEMENT HOLDERS" means Gene Venesky and J. Kenneth Luke.
"PROPORTIONATE PERCENTAGE" means with respect to any Stockholder, the
fraction, expressed as a percentage, the numerator of which is the total number
of Stockholder Shares held by such Stockholder and the denominator of which is
the total number of Stockholder Shares issued and outstanding at the time of
determination held by all Other Stockholders or Offerees, as the case may be
(excluding, in each case any options, warrants or similar Securities).
"PROPOSED TRANSFEREE" has the meaning ascribed to it in
SECTION 2.4(b).
"PUBLIC OFFERING" means the firm commitment underwritten public
offering pursuant to an effective registration statement filed on Form S-1 (or
its successor form) under the Securities Act underwritten by a
nationally-recognized underwriter satisfactory to the holders of a majority of
the shares of Common Stock (voting together as a single class).
"PUBLIC SALE" means any sale, occurring simultaneously with or after a
Public Offering, of Securities to the public pursuant to an offering registered
under the Securities Act or to the public through a broker, dealer or market
maker (pursuant to the provisions of Rule 144 or otherwise).
"QUALIFIED PUBLIC OFFERING" means the first Public Offering resulting
in aggregate proceeds (net of underwriting commissions and discounts) to the
Company of not less than Fifty Million Dollars ($50,000,000) and a price of not
less than two (2) times the Original Cost of the Common Stock.
"RECAPITALIZATION AGREEMENT" means the Recapitalization Agreement,
dated as of July 16, 2002, by and among the Company and the Stockholders named
therein, as the same may from time to time be amended, restated, supplemented or
otherwise modified in accordance with the terms therein.
"REGISTRATION RIGHTS AGREEMENT" means the Registration Rights
Agreement, dated as of the date hereof, among the Company and the Stockholders
named therein, as the same may from time to time be amended, restated,
supplemented or otherwise modified in accordance with the terms therein.
"REGISTRATION STATEMENT" has the meaning given to such term in the
Registration Rights Agreement.
"REGULATORY PROBLEM" has the meaning ascribed to it in the Regulatory
Sideletter.
"REGULATORY SIDELETTER" means the Regulatory Sideletter, dated as of
the date hereof, among the Company and the Stockholders named therein, as the
same may from time to time be amended, restated, supplemented or otherwise
modified in accordance with the terms therein.
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"REPURCHASE NOTICE" means the written notice of the Company notifying
a Management Stockholder of the Company's, or it designees, intent to exercise
its or their rights under SECTION 2.6 and the number of Stockholder Shares to be
repurchased.
"REQUISITE HOLDERS" means, at any date of determination, those
Stockholders who hold in the aggregate in excess of fifty percent (50%) of the
outstanding Common Stock Equivalents held by all Stockholders at such time.
"REQUISITE INVESTOR HOLDERS" means, at any date of determination,
those Investor Stockholders who hold in the aggregate in excess of fifty percent
(50%) of the outstanding Common Stock Equivalents held by all Investor
Stockholders at such time.
"REQUISITE MANAGEMENT HOLDERS" means, at any date of determination,
those Management Stockholders who hold in the aggregate in excess of fifty
percent (50%) of the outstanding Common Stock Equivalents held by all Management
Stockholders at such time.
"RESTATED CERTIFICATE" means the amended and restated certificate of
incorporation of the Company, as in effect at the time in question, including
any certificates of designation, correction or amendment filed with the
Secretary of State of the State of Delaware pursuant to the terms thereof.
"RESTRICTED SECURITIES" means all Stockholder Shares, in each case
which have not theretofore been transferred in a Public Sale.
"ROFO TRANSFER NOTICE" has the meaning ascribed to it in
SECTION 2.7(a)(i).
"RULE 144" means Rule 144 (including Rule 144(k) and all other
subdivisions thereof) promulgated by the Commission under the Securities Act, as
such rule may be amended from time to time, or any similar or successor rule
then in force.
"SALE NOTICE" has the meaning ascribed to it in SECTION 2.3(a).
"SALE OF THE COMPANY" means the consummation of (i) the sale or
transfer (in one or a series of related transactions) of all or substantially
all of the Company's assets to a Person or a group of Persons acting in concert
(other than to a subsidiary of the Company or MQ Holdings and/or any of their
respective Affiliates), (ii) the sale or transfer (in one or a series of related
transactions) of a majority of the outstanding Securities of the Company to one
Person or a group of Persons acting in concert (other than to MQ Holdings and/or
any of its Affiliates) or (iii) the merger or consolidation of the Company with
or into another Person (other than to MQ Holdings and/or any of its Affiliates),
in each case in clauses (ii) and (iii) above, under circumstances in which the
holders of a majority of the voting power of the outstanding Securities of the
Company immediately prior to such transaction own less than a majority in voting
power of the outstanding Securities of the Company or the surviving or resulting
corporation or acquirer, as the case may be, immediately following such
transaction. A sale (or multiple related sales) of one or more subsidiaries of
the Company (whether by way of merger, consolidation, reorganization or sale of
all or substantially all assets or Securities) which constitutes all or
substantially all of the consolidated assets of the Company shall be deemed a
Sale of the Company
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"SECURITIES" means "securities" as defined in Section 2(1) of the
Securities Act and includes, with respect to any Person, such Person's capital
stock or other equity interests or any options, warrants or other securities
that are directly or indirectly convertible into, or exercisable or exchangeable
for, such Person's capital stock or other equity or equity-linked interests,
including phantom stock and stock appreciation rights. Whenever a reference
herein to Securities is referring to any derivative Securities, the rights of a
Stockholder shall apply to such derivative Securities and all underlying
Securities directly or indirectly issuable upon conversion, exchange or exercise
of such derivative securities.
"SECURITIES ACT" means the Securities Act of 1933, as amended, or any
successor federal statute, and the rules and regulations of the Commission
promulgated thereunder, all as the same shall be in effect from time to time.
"STOCKHOLDER SHARES" means (a) any Common Stock purchased or otherwise
acquired by any Stockholder, (b) any Common Stock Equivalents purchased or
otherwise acquired by any Stockholder and (c) any capital stock or other equity
securities issued or issuable directly or indirectly with respect to the
Securities referred to in clauses (a) and (b) above by way of stock dividend or
stock split or in connection with a combination of shares, recapitalization,
reclassification, merger, consolidation or other reorganization. As to any
particular shares constituting Stockholder Shares, such shares shall cease to be
Stockholder Shares when they have been (x) effectively registered under the
Securities Act and disposed of in accordance with the registration statement
covering them or (y) sold to the public through a broker, dealer or market maker
pursuant to Rule 144 (or any similar provision then in force) under the
Securities Act in a Public Sale.
"STOCKHOLDERS" means the holders of Common Stock Equivalents, in each
case who are parties hereto, and shall include any other Person who hereafter
becomes a party to this Agreement as an Investor Stockholder and/or Management
Stockholder pursuant to a Joinder Agreement executed and delivered pursuant to
SECTION 2.1 or 2.2(b).
"SUBSIDIARY" means, at any time, with respect to any Person (the
"SUBJECT PERSON"), (a) any Person of which either (x) more than fifty percent
(50%) of the Securities or other interests entitled to vote in the election of
directors or comparable Persons performing similar functions (excluding
Securities or other interests entitled to vote only upon the failure to pay
dividends thereon or other contingencies) or (y) more than a 50% interest in the
profits or capital of such Person, are at the time owned or controlled directly
or indirectly by the Subject Person or through one or more Subsidiaries of the
Subject Person or by the Subject Person and one or more Subsidiaries of the
Subject Person or (b) any Person whose assets, or portions thereof, are
consolidated with the assets of the Subject Person and are recorded on the books
of the Subject Person for financial reporting purposes in accordance with GAAP.
"TAG-ALONG NOTICE" has the meaning ascribed to it in SECTION 2.3(b).
"TRANSFER" of Securities shall be construed broadly and shall include
any issuance, sale, assignment, transfer, participation, gift, bequest,
distribution, or other disposition thereof, or any pledge or hypothecation
thereof, placement of a lien thereon or grant of a security interest therein or
other encumbrance thereon, in each case whether voluntary or involuntary or by
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operation of law or otherwise. Notwithstanding anything to the contrary
contained herein, Transfer shall not include (a) the exercise of the right to
acquire Common Stock pursuant to the terms of any warrant, option or other
convertible or exercisable Security granted by the Company, (b) the sale or
transfer of Stockholder Shares by any Management Stockholder to the Company or
any of its designees hereunder or pursuant to any employment, option or
restricted stock purchase agreement between the Company and such Management
Stockholder or any plan relating to the foregoing or (c) any grant of a
participation interest as referred to in the Regulatory Sideletter.
"TRANSFEREE" means a Person acquiring Securities through a Transfer.
"TRANSFERRING STOCKHOLDER" has the meaning ascribed to it in
SECTION 2.3(a).
"TTM EBITDA" shall mean the consolidated earnings before interest,
taxes, depreciation and amortization of the Company and its Subsidiaries for the
twelve-month period ending as of the date of determination, as determined by the
Company's independent auditors.
"2001 MANAGEMENT NOTES" means each of the Promissory Notes dated as of
March 30, 2001 issued pursuant to the Stock Purchase and Voting Agreement dated
as of March 30, 2001 among J. Kenneth Luke, Gene Venesky, Thomas C. Gentry,
Michael A. Villa and Daniel J. Schaefer.
"UNLIMITED TRANSFER PERIOD" has the meaning ascribed to it in
SECTION 2.7(a)(iii).
1.2 RULES OF CONSTRUCTION.
The use in this Agreement of the term "including" means "including, without
limitation." The words "herein," "hereof," "hereunder" and other words of
similar import refer to this Agreement as a whole, including the schedules and
exhibits, as the same may from time to time be amended, modified, supplemented
or restated, and not to any particular section, subsection, paragraph,
subparagraph or clause contained in this Agreement. All references to sections,
schedules and exhibits mean the sections of this Agreement and the schedules and
exhibits attached to this Agreement, except where otherwise stated. The title of
and the section and paragraph headings in this Agreement are for convenience of
reference only and shall not govern or affect the interpretation of any of the
terms or provisions of this Agreement. The use herein of the masculine, feminine
or neuter forms shall also denote the other forms, as in each case the context
may require. Where specific language is used to clarify by example a general
statement contained herein, such specific language shall not be deemed to
modify, limit or restrict in any manner the construction of the general
statement to which it relates. The language used in this Agreement has been
chosen by the parties to express their mutual intent, and no rule of strict
construction shall be applied against any party. Unless expressly provided
otherwise, the measure of a period of one month or year for purposes of this
Agreement shall be that date of the following month or year corresponding to the
starting date, provided that if no corresponding date exists, the measure shall
be that date of the following month or year corresponding to the next day
following the starting date. For example, one month following February 18 is
March 18, and one month following March 31 is May 1.
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ARTICLE II
ISSUANCES AND TRANSFERS OF SECURITIES
2.1 ISSUANCES AND TRANSFERS OF SECURITIES.
The Company shall not, without the prior written consent of the Requisite
Investor Holders, issue or sell, or otherwise permit or record the Transfer of,
any Stockholder Share to any Person (other than pursuant to a Public Sale)
unless such Person is already a party to this Agreement or first executes and
delivers to the Company a joinder agreement in substantially the form attached
hereto as EXHIBIT A (a "JOINDER AGREEMENT"), pursuant to which such Person will
thereupon become a party to, and be bound by and obligated to comply with the
terms and provisions of, this Agreement.
2.2 CERTAIN TRANSFERS.
(a) The provisions regarding Transfers of Securities contained in this
ARTICLE II shall apply to all Stockholder Shares now owned or hereafter acquired
by a Stockholder, including Stockholder Shares acquired by reason of original
issuance, dividend, distribution, exchange, conversion and acquisition of
outstanding Stockholder Shares from another Person, and such provisions shall
apply to any Stockholder Shares obtained by a Stockholder upon the exercise,
exchange or conversion of any option, warrant or other derivative Security.
(b) Except for Transfers that constitute Public Sales, no Stockholder
shall Transfer any Stockholder Shares to a Person not already a party to this
Agreement as a Stockholder unless and until (i) such Person executes and
delivers to the Company a Joinder Agreement, pursuant to which such Person will
thereupon become a party to, and be bound by and obligated to comply with the
terms and provisions of, this Agreement, as a Stockholder hereunder, and (ii)
such Transfer is a Permitted Transfer or is made in compliance with this ARTICLE
II and, in any case, is made in compliance with ARTICLE V. No Person who
acquires Stockholder Shares in a Public Sale shall be required to execute a
Joinder Agreement.
2.3 CO-SALE RIGHTS.
(a) After satisfying the obligations set forth in SECTION 2.4 and, in
the case of MQ Holdings, SECTION 2.7, if at any time any Stockholder proposes to
Transfer, other than pursuant to a Permitted Transfer (PROVIDED, HOWEVER, that a
Transfer pursuant to clause (b)(iii) of such definition shall not be deemed a
Permitted Transfer for purposes of this SECTION 2.3), any Stockholder Shares (in
each case, such Stockholder shall be deemed a "TRANSFERRING STOCKHOLDER"), then
at least thirty (30) days prior to the closing of such Transfer, such
Transferring Stockholder shall deliver a written notice (the "SALE NOTICE") to
all holders of Stockholder Shares (other than such Transferring Stockholder and
the Investor Stockholders) (the "OTHER STOCKHOLDERS") offering such Other
Stockholders the option to participate in such proposed Transfer upon the same
terms and conditions as such Transferring Stockholder. Such Sale Notice shall
specify in reasonable detail the identity of the prospective Transferee and the
terms and conditions of the Transfer, including the number and class of
Stockholder Shares to be Transferred.
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(b) Any Other Stockholder may, within twenty (20) days of the receipt
of a Sale Notice, give written notice (each, a "TAG-ALONG NOTICE") to such
Transferring Stockholder stating that such Other Stockholder wishes to
participate in such proposed Transfer and specifying the amount and class of
Stockholder Shares such Other Stockholder desires to include in such proposed
Transfer; PROVIDED, HOWEVER, that, if the Sale Notice relates to shares of
Common Stock, such Transferring Stockholder shall, if requested in such
Tag-Along Notice, use all reasonable efforts to cause the proposed Transferee to
agree to acquire warrants held by the Other Stockholder delivering such
Tag-Along Notice without the prior exercise thereof; PROVIDED FURTHER, HOWEVER,
that the consideration received upon such Transfer by such Other Stockholder
will be net of any exercise price of such warrants.
(c) If no Other Stockholder gives such Transferring Stockholder a
timely Tag-Along Notice with respect to the Transfer proposed in the Sale
Notice, such Transferring Stockholder may thereafter Transfer the Stockholder
Shares specified in the Sale Notice on terms and conditions no more favorable to
such Transferring Stockholder than those set forth in the Sale Notice. If one or
more Other Stockholders give such Transferring Stockholder a timely Tag-Along
Notice, then such Transferring Stockholder shall use all reasonable best efforts
to cause the prospective Transferee(s) to agree to acquire all Stockholder
Shares identified in all Tag-Along Notices that are timely given to such
Transferring Stockholder, upon the same terms and conditions as applicable to
such Transferring Stockholder's Stockholder Shares. If the prospective
Transferee(s) are unwilling or unable to acquire all Stockholder Shares proposed
to be included in such sale upon such terms, then such Transferring Stockholder
may elect either to cancel such proposed Transfer or the maximum number of
Stockholder Shares that each prospective Transferee is willing to purchase shall
be allocated among such Transferring Stockholder and the Other Stockholders
giving timely Tag-Along Notices in proportion to each such Stockholders'
Proportionate Percentage.
(d) Within ten (10) days after the date by which the Other
Stockholders were first required to notify the Transferring Stockholder of their
intent to participate, the Transferring Stockholder shall notify each Other
Stockholder who delivered a timely Tag-Along Notice of the number of Stockholder
Shares held by such Other Stockholder that will be included in the sale and the
day on which the sale is intended to be consummated, which shall be no later
than the later of (i) ninety (90) days after the date which the Other
Stockholders were required to notify the Transferring Stockholder of their
intent to participate and (ii) the date of satisfaction of any governmental
approval or filing requirements, if any.
2.4 RIGHT OF FIRST REFUSAL.
(a) Except to the extent otherwise expressly permitted herein, no
Stockholder (other than an Investor Stockholder) shall Transfer, other than
pursuant to a Permitted Transfer, any Stockholder Shares except in compliance
with the procedures set forth in this SECTION 2.4 (and the other applicable
provisions of this Agreement).
(b) If any Stockholder (other than an Investor Stockholder) shall
receive a BONA FIDE written offer (an "OFFER") from any Person (a "PROPOSED
TRANSFEREE") to purchase all or a portion of the Stockholder Shares then owned
by such Stockholder and such Stockholder desires to accept such Offer, such
Stockholder (the "OFFEROR") shall, before accepting such Offer, first
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deliver to the Company and each of the Stockholders (other than the Offeror)
(collectively with the Company, the "OFFEREES") a written notice (the "NOTICE OF
OFFER"), which shall include all relevant terms of such Offer and shall be
irrevocable for a period of thirty (30) days after delivery thereof (the "OFFER
PERIOD"), offering (the "FIRST REFUSAL OFFER") all of the Stockholder Shares
proposed to be Transferred by the Offeror at the purchase price and on the terms
specified in the Offer, FIRST to the Company, or its designees, and SECOND to
such other Stockholders. The Offeror shall also furnish to the Offerees such
additional information in the Offeror's possession relating to the Offer as the
Offerees may reasonably request. The Company, or its designees, shall have the
first right and option, for a period of ten (10) days after delivery of the
Notice of Offer by the Offeror, to accept all or any portion of the Stockholder
Shares so offered at the purchase price and on the terms stated in the Notice of
Offer. The Company shall make such acceptance by delivering written notice
thereof to the Offeror and the other Offerees within such 10-day period. The
Company shall, if it does not elect to purchase all of the offered Stockholder
Shares, promptly upon such election (but in any event within such 10-day period)
deliver written notice thereof to the Offeror and the other Offerees. Each other
Stockholder shall then have the right and option, for a period of twenty (20)
days after the expiration of the 10-day period provided above, (x) to accept in
writing all or any of his or its Proportionate Percentage of the Stockholders
Shares so offered and not accepted by the Company at the purchase price and on
the terms stated in the Notice of Offer and (y) to offer, in any written notice
of acceptance, to purchase any Stockholder Shares not accepted by the other
Stockholders pursuant to this sentence, in which case the Stockholder Shares not
accepted by the other Stockholders shall be deemed, on the same terms and
conditions, to be re-offered from time to time during such 20-day period to and
accepted by the other Stockholders who exercised their option under this clause
(y), PRO RATA in accordance with their respective Proportionate Percentages
(computed without including the Stockholders who have not exercised their option
to purchase Stockholder Shares under this clause (y)), until all such
Stockholder Shares are fully subscribed or until all such other Stockholders
have subscribed for all such offered Stockholder Shares which they desire to
purchase.
(c) Transfers of Stockholder Shares under the terms of this
SECTION 2.4 shall be made at the offices of the Company on a mutually
satisfactory Business Day within fifteen (15) days after the later of (i)
expiration of the Offer Period and (ii) the satisfaction of any governmental
approval or filing requirements, if any. Delivery of certificates or other
instruments evidencing such Stockholder Shares, duly endorsed for transfer and
free and clear of all liens, claims and other encumbrances, shall be made on
such date against payment of the purchase price therefor.
(d) If the Offerees shall not have accepted all of the Stockholder
Shares offered for sale pursuant to the Notice of Offer, then the Offeror may
Transfer to the Proposed Transferee that number of the Stockholder Shares not
accepted by the Offerees in accordance with the terms set forth in the Notice of
Offer, at any time within ninety (90) days after the expiration of the First
Refusal Offer required by SECTION 2.4(a). Any such Transfer shall be in
compliance with SECTION 2.2 and SECTION 2.3. In the event the Stockholder Shares
are not Transferred by the Offeror to the Proposed Transferee on such terms
during such 90-day period, the restrictions of this SECTION 2.4 shall again
become applicable to any Transfer of Stockholder Shares by the Offeror.
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2.5 REQUIRED SALE IN CONNECTION WITH A SALE OF THE COMPANY.
(a) GENERAL. Subject to the further provisions of this SECTION 2.5, if
the Board and the Requisite Holders approve a Sale of the Company (an "APPROVED
SALE"), each Stockholder shall consent to and raise no objections against the
Approved Sale, and if the Approved Sale is structured as a sale of the issued
and outstanding capital stock of the Company (whether by merger,
recapitalization, consolidation or sale or Transfer of Stockholder Shares, other
Securities or otherwise), then each Stockholder shall waive any dissenters
rights, appraisal rights or similar rights in connection with such Sale of the
Company and each Stockholder shall agree to sell his or its Stockholder Shares
on the terms and conditions approved by the Board. Each Stockholder shall take
all necessary and desirable actions in connection with the consummation of the
Approved Sale, including the execution of such agreements and instruments and
other actions necessary to provide the representations, warranties, indemnities,
covenants, conditions, escrow agreement and other provisions and agreements
relating to such Approved Sale. Each Stockholder hereby grants an irrevocable
power of attorney and proxy to the Chairman of the Board of the Company to take
all necessary actions and execute and deliver all documents deemed by such
Person to be necessary or desirable to effectuate the terms of this SECTION 2.5,
such power of attorney and proxy only to be exercisable in the event that such
Stockholder fails for any reason to take any of the foregoing actions after
reasonable notice thereof. The restrictions on Transfers of Stockholder Shares
set forth in SECTIONS 2.1, 2.2, 2.3 and 2.4 shall not apply in connection with
an Approved Sale. Notwithstanding anything to the contrary contained herein, a
Sale of the Company that is not approved by all of the Investor Directors shall
not be deemed to be an "Approved Sale."
(b) PROCEDURE. The Company shall deliver written notice to each
Stockholder setting forth in reasonable detail the terms (including price, time
and form of payment) of any Approved Sale (the "DRAG NOTICE"). Within ten (10)
days following receipt of the Drag Notice, each Stockholder shall deliver to the
Company written notice (in form and substance reasonably satisfactory to the
Company) setting forth such holders' agreement to consent to and raise no
objections against, or impediments to, the Approved Sale (including, waiving all
dissenter's and similar rights) and (ii) if the Approved Sale is structured as a
sale of stock, to sell its Stockholder Shares on the terms and conditions set
forth in the Drag Notice.
(c) CONDITIONS TO OBLIGATION. The obligations of the Stockholders to
participate in any Approved Sale pursuant to this SECTION 2.5 are subject to the
satisfaction of the following conditions:
(i) subject to SECTION 2.5(c)(iii), upon the consummation of
the Approved Sale (or as promptly thereafter as practical in the case of
certain options to purchase Stock, pursuant to outstanding option
agreements), all of the Stockholders shall receive the same proportion of
the aggregate consideration from such Approved Sale that such holder would
have received if such aggregate consideration had been distributed by the
Company in complete liquidation pursuant to the rights and preferences set
forth in the Restated Certificate as in effect immediately prior to such
Approved Sale (giving effect to applicable orders of priority and the
exercise price of all warrants and options);
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(ii) if any Stockholders are given an option as to the form and
amount of consideration to be received with respect to shares in a class,
all holders of shares of such class will be given the same option;
(iii) all holders of then-currently exercisable or convertible
Common Stock Equivalents will be given an opportunity to either (A)
exercise or convert such rights prior to the consummation of an Approved
Sale (but only to the extent such Common Stock Equivalents are then vested
or would be vested on an accelerated basis upon such sale pursuant to the
terms thereof) and participate in such sale as Stockholders or (B) upon the
consummation of the Approved Sale, receive in exchange for such currently
exercisable or convertible Common Stock Equivalents consideration equal to
the product of (x) the same amount of consideration per Stockholder Share
(of the same class as that for which the Common Stock Equivalent is
exercisable or convertible) received by the holders of such class of
capital stock in connection with the Approved Sale (less the exercise or
conversion price per Common Stock Equivalent) and (y) the number of Common
Stock Equivalents (but only to the extent such Common Stock Equivalents are
then vested or would vest upon an accelerated basis upon such sale pursuant
to the terms thereof);
(iv) no Stockholder shall be obligated to pay more than his or
its PRO RATA share (based upon the number of Common Stock Equivalents held
by such Stockholder) of reasonable expenses incurred in connection with a
consummated Approved Sale to the extent such expenses are incurred for the
benefit of all Stockholders and are not otherwise paid by the Company or
the acquiring party (expenses incurred by or on behalf of a Stockholder for
its or his sole benefit not being considered expenses incurred for the
benefit of all Stockholders); and
(v) in the event that the Stockholders are required to provide
any representations, warranties or indemnities in connection with an
Approved Sale (other than representations, warranties and indemnities on a
several basis concerning each Stockholder's valid ownership of his or its
Stockholder Shares, free of all liens and encumbrances, enforceability and
each Stockholder's authority, power, and right to enter into and consummate
agreements relating to such Approved Sale without violating applicable law,
its organizational documents or any other agreement to which it is a
party), then each Stockholder shall not be liable for more than his or its
PRO RATA share (based upon the number of Common Stock Equivalents held by
such Stockholder) of any liability for misrepresentation or indemnity
(except in respect of such several representations and warranties) and such
liability shall not exceed the total purchase price received by such
Stockholder (net of broker fees) from such purchaser for such Stockholder's
Stockholder Shares and/or Common Stock Equivalents (including the exercise
price thereof), and, to the extent that an indemnification, purchase price
adjustment, or similar escrow has been established, such liability shall be
satisfied solely out of any funds escrowed for such purposes prior to
recourse against such Stockholder.
(d) CONSULTATION WITH MANAGEMENT STOCKHOLDERS. Prior to the Company or
the Requisite Holders, as applicable, executing a binding commitment for any
Approved Sale (a "COMMITMENT"), the Investor Stockholders shall consult with the
Requisite Management Holders
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regarding the terms and conditions of such Approved Sale at least thirty (30)
days prior to executing a Commitment. In addition, in the event of an Approved
Sale whereby the form of consideration includes securities, the Investor
Stockholders will use their reasonable, good faith efforts to structure such
Approved Sale in a manner so that the Management Stockholders will receive
securities having the same relative economic interest and rights as the
Stockholder Shares held by such Management Stockholders immediately before the
consummation of such Approved Sale; PROVIDED, HOWEVER, that the Investor
Stockholders shall not have any obligation hereunder if such structure would
result in less consideration or a greater detrimental economic effect to the
Investor Stockholders than would otherwise be the case immediately prior to the
consummation of any Approved Sale.
2.6 REPURCHASE RIGHT OF THE COMPANY.
(a) If a Management Stockholder's employment with the Company is
terminated for any reason or for no reason, the Company or its designee shall
have the right (but not the obligation), upon delivery of a Repurchase Notice to
such Management Stockholder, to repurchase from such Management Stockholder (and
each of his Permitted Transferees) all or any part of the Stockholder Shares
owned by such Management Stockholder (and each of his Permitted Transferees) at
any time. The price per Stockholder Share to be paid by the Company shall be (i)
in the event of a termination of such Management Stockholder's employment with
the Company or any Subsidiary due to his death or disability or by the Company
or such Subsidiary without Cause, the Fair Market Value as of the last day of
the calendar month ending on, or immediately before, the date the Management
Stockholders' employment with the Company is so terminated or (ii) in the event
of a termination of such Management Stockholders' employment with the Company or
any Subsidiary by the Company or such Subsidiary with Cause or upon the
Management Stockholder's resignation, the lesser of the Original Cost and the
Fair Market Value thereof as of the date of such termination. For purposes of
this SECTION 2.6 only, the "Original Cost" of any share of the Company's Series
B Preferred Stock, $0.001 par value per share, shall include that amount equal
to the product of (X) the Original Cost of one share of Common Stock and (Y) the
Participation Component Shares (as such term is defined in the Restated
Certificate). The purchase price to be paid by the Company for any repurchase of
Stockholder Shares pursuant to this SECTION 2.6 shall be paid in cash; PROVIDED,
HOWEVER, that, if the Management Stockholder is terminated by the Company or
such Subsidiary with Cause or resigns, the Company shall have the option to pay
the purchase price as follows:
(i) 33.333% of the purchase price in cash; PROVIDED FURTHER,
HOWEVER, that the Company shall not be obligated to pay more than that
which is permitted under the Credit Agreement, in which case such portion
that is not permitted to be paid in cash shall be payable as provided in
paragraph (ii) below; PROVIDED FURTHER, that the permitted amount referred
to in the immediately preceding provision shall be reduced by an amount
equal to the sum of all amounts paid or payable within the fiscal year in
which such purchase is consummated in satisfaction of obligations owing
pursuant to any notes issued, or to be issued in connection with the
subject purchase of Stockholder Shares, pursuant to clause (ii) below; and
(ii) the remaining portion of the purchase price in the form of a
non-negotiable promissory note payable to the order of the Management
Stockholder, which
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note shall be (A) dated the date of the closing of such sale, bearing
interest at the prime rate reported by J.P. Morgan Chase Bank, N.A. in the
Wall Street Journal as of such closing date, (B) payable in three equal
annual installments of principal and interest accrued thereon payable on an
anniversary of the date of the note; PROVIDED, HOWEVER, that the aggregate
amount required to be paid from time to time by the Company with respect to
all of the outstanding notes issued pursuant to this SECTION 2.6(a)(ii)
shall not exceed the amounts then permitted by the Credit Agreement or any
covenant under any other financing document of the Company or its
Subsidiaries (or any successor facility or facilities which contains
restrictions on the payment of such notes which are not more restrictive
than those currently contained in the Credit Agreement or such other
document), and if such Credit Agreement or such other document does not
permit the payment of all amounts payable in a fiscal year with respect to
such notes, the amount permitted to be paid shall be allocated among such
notes PRO RATA based upon the outstanding principal balances of such notes,
(C) prepayable at any time without premium, such prepayments to be applied
to payments of principal and then interest next due and (D) subordinated to
any funded indebtedness of the Company and its Subsidiaries.
(b) The purchasers of any Stockholder Shares pursuant to this
SECTION 2.6 will be entitled to require all of the sellers of Stockholder Shares
to provide representations and warranties from such seller regarding (i) such
seller's power, authority and legal capacity to enter into such sale and to
transfer valid right, title and interest in such Stockholder Shares, (ii) such
seller's ownership of such Stockholder Shares and the absence of any liens,
pledges, and other encumbrances on such Stockholder Shares and (iii) the absence
of any violation, default, or acceleration of any agreement or instrument
pursuant to which such seller or the assets of such seller are bound as the
result of such sale.
(c) If the Company or any of its designees elect to exercise the
repurchase rights pursuant to this SECTION 2.6 and any seller fails to promptly
deliver all of such Stockholder Shares in accordance with the terms hereof, then
the purchaser of such Stockholder Shares hereunder may, at its option, in
addition to all other remedies it may have, deposit the purchase price in an
escrow account administered by an independent third party (to be held for the
benefit of and payment over to such seller in accordance herewith), whereupon
the Company shall by written notice to such seller (i) cancel on the Company's
books the certificate(s) representing such Stockholder Shares registered in the
name of such seller and (ii) issue to the purchaser, in lieu thereof, new
certificate(s) representing such Stockholder Shares registered in the
purchaser's name, and all of the seller's right, title, and interest in and to
such Stockholder Shares shall terminate in all respects without any action on
the part of such seller.
(d) Anything contained in this Agreement to the contrary
notwithstanding, all repurchases of Stockholder Shares by the Company or its
designees pursuant to this SECTION 2.6 shall be subject to applicable
restrictions contained in federal law, the law of any other applicable
jurisdiction and in the Company's debt and equity financing agreements,
including the Credit Agreement. Anything contained in this Agreement to the
contrary notwithstanding, if any such restrictions prohibit or otherwise delay
the repurchase of Stockholder Shares or any payment of money in connection
therewith pursuant to this SECTION 2.6 which the Company is otherwise entitled
or required to make, the Company or its designees may make such repurchases or
such
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payments as soon as it is permitted to do so under such restrictions. The
restrictions on Transfers of Stockholder Shares set forth in SECTIONS 2.3, 2.4
and 2.7 shall not apply in connection with any Transfer in connection with this
SECTION 2.6.
(e) If Stockholder Shares are repurchased pursuant to this
SECTION 2.6, then the sellers and the purchasers thereof and their respective
successors, assigns and representatives shall take all steps necessary or
desirable to obtain, at their sole cost and expense, all required third-party,
governmental and regulatory consents and approvals (including any actions
required under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as
amended) and shall take all other actions necessary or desirable to facilitate
consummation of such repurchase in a timely manner.
2.7 RIGHT OF FIRST OFFER.
(a) If MQ Holdings desires to Transfer any Stockholder Shares held by
it (other than pursuant to a Permitted Transfer; PROVIDED, HOWEVER, that a
Transfer pursuant to clause (b)(iii) of such definition shall not be deemed a
Permitted Transfer for purposes of this SECTION 2.7), MQ Holdings shall:
(i) provide notice to the Management Stockholders in writing of
its intent to Transfer such Stockholder Shares (the "ROFO TRANSFER NOTICE")
and shall include in such ROFO Transfer Notice, the number and class of
Stockholder Shares that MQ Holdings intends to Transfer;
(ii) upon receipt of a ROFO Transfer Notice, the Management
Stockholders shall have ten (10) Business Days from the date of receipt of
the ROFO Transfer Notice to inform MQ Holdings whether they desire to
purchase such Stockholder Shares;
(iii) in the event that the Management Stockholders inform MQ
Holdings in writing that they do not intend to purchase such Stockholder
Shares or provide no response prior to the expiration of such ten (10)
Business Days (the "MANAGEMENT STOCKHOLDERS' REJECTION"), MQ Holdings shall
be entitled to Transfer such Stockholder Shares, free and clear of the
restrictions set forth in this SECTION 2.7, but subject to SECTION 2.3, to
any Person for any consideration for ninety (90) Business Days from the
effective time of such Management Stockholders' Rejection (the "UNLIMITED
TRANSFER PERIOD"). To the extent that MQ Holdings has not Transferred such
Stockholder Shares within the Unlimited Transfer Period, MQ Holdings shall
again comply with the provisions of this SECTION 2.7 prior to Transferring
such Stockholder Shares that were not so Transferred; PROVIDED, HOWEVER, if
such ROFO Transfer Notice was given in connection with, or in contemplation
of, an Approved Sale, this last sentence of this clause (iii) shall be
inapplicable and MQ Holdings shall be entitled to Transfer such Stockholder
Shares without regard to this SECTION 2.7 for a period of three hundred and
sixty-five (365) days following a Management Stockholders' Rejection
(PROVIDED, that MQ Holdings shall be deemed to have satisfied the
requirements of this proviso to this clause (iii) if MQ Holdings has
entered into definitive documentation or is otherwise engaged in good faith
negotiations in connection with such Transfer within such 365-day
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period notwithstanding that the actual Transfer of such Stockholder Shares
occurs after the expiration of such period);
(iv) in the event that the Management Stockholders inform MQ
Holdings in writing that they intend to purchase such Stockholder Shares
(the "MANAGEMENT STOCKHOLDERS' OFFER"), the Management Stockholders shall
indicate to MQ Holdings the per share price, in cash, they are willing to
pay for such Stockholder Shares (the "MANAGEMENT STOCKHOLDERS AMOUNT") and
evidence satisfactory to MQ Holdings of the source of financings of such
purchase price and such Management Stockholders' Offer shall be irrevocable
for ten (10) Business Days;
(v) if MQ Holdings accepts the Management Stockholders' Offer,
the Management Stockholders and MQ Holdings shall complete the Transfer of
such Stockholders' Shares within five (5) Business Days after the later of
(A) thirty (30) Business Days from the date of delivery of such acceptance
by MQ Holdings to the Management Stockholders and (B) the satisfaction of
any governmental approval or filing requirements, if any; and
(vi) if MQ Holdings rejects the Management Stockholders' Offer,
for a period of ninety (90) Business Days from the date of delivery of such
rejection by MQ Holdings to the Management Stockholders (the "LIMITED
TRANSFER PERIOD"), MQ Holdings shall be able to Transfer such Stockholder
Shares, free and clear of the restrictions set forth in this SECTION 2.7,
but subject to SECTION 2.3, to any other Person for a per share price that
is not less than the Management Stockholders' Amount; PROVIDED, HOWEVER,
that if such Transfer is in connection with an Approved Sale, such Limited
Transfer Period shall be 180 Business Days. To the extent that MQ Holdings
has not Transferred all of such Stockholder Shares within the Limited
Transfer Period, MQ Holdings shall again comply with the provisions of this
SECTION 2.7 prior to Transferring the Stockholder Shares that were not so
Transferred.
ARTICLE III
BOARD
3.1 ELECTION OF DIRECTORS, VOTING.
(a) Each holder of Stockholder Shares hereby covenants and agrees to
vote all of his, her or its Stockholder Shares to cause (i) the number of
directors constituting the Board to be seven (7) and (ii) the Company to comply
with all obligations under the Documents. At each annual meeting of the holders
of any class of Stockholder Shares, and at each special meeting of the holders
of any class of Stockholder Shares called for the purpose of electing directors
of the Company, and at any time at which holders of any class of Stockholder
Shares shall have the right to, or shall, vote for or consent in writing to the
election of directors of the Company, then, and in each such event, the holders
of Stockholder Shares shall vote all of the Stockholder Shares owned by them
for, or consent in writing with respect to such shares in favor of, the election
of a Board constituted as follows:
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(i) three (3) representatives designated by the Requisite
Investor Holders, which designees shall initially be Benjamin B. Edmands,
Evan Bakst and Mitchell J. Blutt, M.D.;
(ii) one (1) representative designated by JPMP Global Investors,
which designee shall initially be Nancy-Ann DeParle;
(iii) one (1) representative designated (after consultation with
the Management Stockholders) by the Requisite Holders (which, for purposes
of this paragraph (iii) only, shall not include Thomas Gentry, Daniel
Schaefer and Michael Villa), which representative shall be knowledgeable in
the Company's industry and shall not be an employee of the Company or any
of its Subsidiaries; and
(iv) two (2) representatives designated by the Principal
Management Holders for so long as the aggregate Percentage Ownership of the
Principal Management Holders is at least ten percent (10%), which designees
shall be members of the senior management of the Company and which shall
initially be Gene Venesky and J. Kenneth Luke; PROVIDED, HOWEVER, that at
such time as the aggregate Percentage Ownership of the Principal Management
Holders is reduced below ten percent (10%), (A) the Principal Management
Holders shall have the right to designate two (2) representatives to the
Board pursuant to this paragraph (iv) for so long as both Gene Venesky and
J. Kenneth Luke are employed as members of the senior management of the
Company, (B) the Principal Management Holders shall have the right to
designate one (1) representative to the Board pursuant to this paragraph
(iv) for so long as either Gene Venesky or J. Kenneth Luke (but not both)
is employed as a member of the senior management of the Company and such
other representative shall thereafter be designated by the Requisite
Investor Holders, and (C) the Principal Management Holders shall not have
any rights to designate any representatives to the Board pursuant to this
paragraph (iv) at such time as neither Gene Venesky nor J. Kenneth Luke are
employed as members of the senior management of the Company and such
representatives shall thereafter be designated by the Requisite Investor
Holders.
(b) JPMP Global Investors shall, in its sole discretion, have the
power to assign the right to designate a director pursuant to SECTION 3.1(a)(ii)
to any of its Affiliates.
(c) The majority of the members of each committee created by the Board
shall be Investor Directors.
(d) The holders of Stockholder Shares shall vote their shares (i) to
remove any director whose removal is required by the party or parties with the
power to designate such director and (ii) to promptly fill any vacancy created
by the removal, resignation or death of a director, in each case for the
election of a new director designated, if approval is required, in accordance
with the provisions of this SECTION 3.1. For so long as the Requisite Management
Stockholders have the right to designate members of the Board pursuant to
SECTION 3.1(a)(iv), prior to the Requisite Investor Holders designating the
Person whom the Requisite Investor Holders intend to fill any vacancy created by
the removal, resignation or death of any member elected to the Board pursuant to
SECTION 3.1(a)(i), the Requisite Investor Holders shall consult
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with the Requisite Management Holders regarding the identity and qualifications
of any such designee and shall use their reasonable, good faith efforts to
designate a Person acceptable to the Requisite Management Holders; PROVIDED,
HOWEVER, that the Requisite Investor Holders shall not have any obligation
hereunder to designate any Person acceptable to the Requisite Management
Holders. The Company and the holders of Stockholder Shares shall use their best
efforts to fill any vacancies of the Board as soon as practicable following the
date such vacancy is created. Notwithstanding anything to the contrary contained
in this Agreement, in the event that the Requisite Management Holders shall no
longer have the right to designate members to the Board pursuant to
SECTION 3.1(a)(iv) above, the Requisite Investor Holders shall have the right to
remove any such directors so designated and appointed.
(e) The Company shall pay the reasonable out-of-pocket expenses
incurred by each of the Directors designated in accordance with this SECTION 3.1
(collectively, the "DIRECTORS") in connection with (i) attending the meetings of
the Board and all committees thereof and (ii) conducting any other Company
business requested by the Company. So long as any Director serves on the Board
and for six (6) years thereafter, the Company shall maintain directors and
officers indemnity insurance coverage reasonably satisfactory to the Board, and
the Company's Restated Certificate and By-laws shall provide for indemnification
and exculpation of the Directors to the fullest extent permitted under
applicable law.
3.2 VOTING AGREEMENT.
Each Stockholder shall use all reasonable efforts to cause each Director
designated by such Stockholder to vote for the election to the Board of all
individuals designated in accordance with SECTION 3.1.
3.3 OBSERVATION RIGHTS.
(a) Notwithstanding the provisions of SECTION 3.1, MQ Holdings shall
be entitled to designate one Person to serve as an observer (the "OBSERVER") at
all meetings of the Board.
(b) The Company shall give the Observer reasonable prior notice (it
being agreed that the same prior notice given to the Directors shall be deemed
reasonable prior notice) in any manner permitted in the Company's By-laws for
notices to Directors of the time and place of any proposed meeting of the Board,
such notice in all cases to include true and complete copies of all documents
furnished to any Director in connection with such meeting. The Observer will be
entitled to be present in person as an observer at any such meeting or, if a
meeting is held by telephone conference, to participate therein for the purpose
of listening thereto.
(c) The Company shall deliver to the Observer copies of all papers
which may be distributed from time to time to the Directors at such time as such
papers are so distributed to them, including copies of any written consent. In
addition, from time to time upon the request of the Observer, the Company will
furnish to the Observer such information regarding the business, affairs,
prospects and financial condition of the Company as such Observer may reasonably
request.
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ARTICLE IV
ADDITIONAL AGREEMENTS
4.1 ACCESS TO RECORDS AND PROPERTIES.
Until the consummation of a Qualified Public Offering, the Company shall
permit any Stockholder (other than Management Stockholders) and its employees,
members, stockholders, partners, counsel and other authorized representatives
(collectively, "AUTHORIZED REPRESENTATIVES"), during normal business hours and
upon reasonable advance notice (which shall not be less than one-day's prior
notice) to (a) visit and inspect the assets and properties of the Company, (b)
examine the books of accounts and records of the Company and (c) make copies of
such records and (d) discuss all aspects of the Company with any officers,
employees or accountants of the Company; PROVIDED, HOWEVER, that such
investigation shall not unreasonably interfere with the operations of the
Company. The Company will instruct its accountants to discuss such aspects of
the financial condition of the Company with any such Stockholder and its
Authorized Representatives as such Stockholder may reasonably request, and to
permit such Stockholder and its Authorized Representatives to inspect, copy and
make extracts from such financial statements, analyses, and other documents and
information (including electronically stored documents and information) prepared
by the accountants with respect to the Company as such Stockholder may
reasonably request. All costs and expenses incurred by such Stockholder and its
Authorized Representatives in connection with exercising such rights of access
shall be borne by such Persons, and all out-of-pocket costs and expenses
incurred by the Company in complying with any extraordinary requests by such
Persons and its representatives in connection with exercising such access rights
shall be borne by such Persons.
4.2 CONFIDENTIAL INFORMATION.
Except as otherwise required by law, each Stockholder and Authorized
Representative shall hold in confidence all nonpublic information of the Company
provided or made available to such Stockholder and Authorized Representative
pursuant to this ARTICLE IV until such time as such information has become
publicly available other than as a consequence of any breach by such Stockholder
or Authorized Representative of its confidentiality obligations hereunder
(PROVIDED that such information may be disclosed to any other Stockholder,
Authorized Representative or transferee in a Permitted Transfer and shall not
use such information for any purpose other than exercise of its rights as a
holder of Stockholder Shares and its rights under the Documents).
4.3 REGULATORY MATTERS.
(a) COOPERATION OF OTHER STOCKHOLDERS. Each Stockholder agrees to
cooperate with the Company in all reasonable respects in complying with the
terms and provisions of the Regulatory Sideletter, a copy of which is attached
hereto as EXHIBIT B, regarding regulatory matters, including voting to approve
amending the Restated Certificate, the By-laws or this Agreement in a manner
reasonably acceptable to the Stockholders and MQ Holdings or any respective
Affiliate thereof entitled to make such request pursuant to the Regulatory
Sideletter in order to remedy a Regulatory Problem. Anything contained in this
SECTION 4.3 to the contrary
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notwithstanding, no Stockholder shall be required under this SECTION 4.3 to take
any action that would adversely affect in any material respect such
Stockholder's rights under this Agreement or as a stockholder of the Company.
(b) COVENANT NOT TO AMEND. The Company and each Stockholder agree not
to amend or waive the voting or other provisions of the Restated Certificate,
the By-laws or this Agreement if such amendment or waiver would cause MQ
Holdings or any of its respective Affiliates to have a Regulatory Problem. MQ
Holdings agrees to notify the Company as to whether or not it or any of its
Affiliates would have a Regulatory Problem promptly after MQ Holdings has
received notice from the Company of such amendment or waiver.
4.4 EXPENSES.
The Company will pay, and hold the Investor Stockholders and/or their
respective Affiliates and representatives harmless against all liability for the
payment of (i) all costs and other expenses incurred from time to time by the
Company or any of its Subsidiaries in connection with the Company's performance
of and compliance with all agreements and conditions contained in this Agreement
or the Documents on its part to be performed or complied with, (ii) the actual,
out-of-pocket costs and expenses incurred by or on behalf of the Investor
Stockholders and/or their respective Affiliates and representatives at or prior
to the Closing Date in connection with the transactions contemplated hereby,
including fees and charges of counsel, accountants and other advisors, in
connection with the purchase, conversion, exercise or exchange of Securities,
(iii) the reasonable costs and expenses (including fees and expenses of counsel,
accountants and other advisors) incurred by or on behalf of the Investor
Stockholders and/or their respective Affiliates and representatives in
connection with any amendment or waiver of, or enforcement of, any Document,
(iv) the reasonable out-of-pocket costs incurred by or on behalf of the Investor
Stockholders and/or their respective Affiliates and representatives in sending
its representatives to participate in meetings of the Board (or any committee
thereof) of the Company or any of its Subsidiaries, (v) any actual,
out-of-pocket costs reasonably incurred by or on behalf of the Investor
Stockholders and/or their respective Affiliates and representatives in rendering
assistance to the Company or any of its Subsidiaries, to the extent the Company
or such Subsidiary requested such assistance (it being understood that the
Investor Stockholders and/or their respective Affiliates and representatives are
not obligated to render, and may charge additional fees for, such assistance),
(vi) the reasonable fees and expenses incurred by the Investor Stockholders
and/or their respective Affiliates and representatives in any filing with any
governmental authority with respect to its investment in the Company or in any
other filing with any governmental authority with respect to the Company or any
of its Subsidiaries that mentions the Investor Stockholders or their respective
Affiliates, and (vii) any stamp or similar taxes which may be determined to be
payable in connection with the execution and delivery and performance of any
Document or any modification, amendment or alteration of any Document, and all
issue taxes in respect of the issuance of any Securities of the Company.
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4.5 2001 MANAGEMENT NOTES.
The Management Stockholders (whether as Stockholders or thereafter) shall
not amend or otherwise modify, waive or alter the 2001 Management Notes without
the prior written consent of the Company.
ARTICLE V
SECURITIES LAW COMPLIANCE; LEGENDS
5.1 RESTRICTION ON TRANSFER.
In addition to any other restrictions on the Transfer of any Stockholder
Shares contained in this Agreement, the Stockholders shall not Transfer any
Restricted Securities except in compliance with the conditions specified in this
ARTICLE V.
5.2 RESTRICTIVE LEGENDS.
Each certificate for the Restricted Securities shall (unless otherwise
provided by the provisions of SECTION 5.4) be stamped or otherwise imprinted
with a legend in substantially the following terms:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ACQUIRED FOR
INVESTMENT AND HAVE NOT BEEN REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED, OR ANY STATE SECURITIES OR BLUE
SKY LAWS. THESE SECURITIES MAY NOT BE SOLD OR TRANSFERRED IN THE
ABSENCE OF SUCH REGISTRATION OR AN EXEMPTION THEREFROM UNDER SAID ACT
OR LAWS."
5.3 NOTICE OF TRANSFER.
The holder of any Restricted Securities, by his or its acceptance or
purchase thereof, agrees, prior to any Transfer of any such Restricted
Securities (except pursuant to an effective Registration Statement), to give
written notice to the Company of such holder's intention to effect such Transfer
and agrees to comply in all other respects with the provisions of this ARTICLE V
and ARTICLE II. Each such notice shall describe the manner and circumstances of
the proposed Transfer and, unless waived by the Company, shall be accompanied by
the written opinion, addressed to the Company, of counsel for the holder of such
Restricted Securities (which counsel shall be reasonably satisfactory to the
Company), stating that in the opinion of such counsel (which opinion shall be
reasonably satisfactory to the Company) such proposed Transfer does not involve
a transaction requiring registration of such Restricted Securities under the
Securities Act; PROVIDED, HOWEVER, that no such opinion of counsel shall be
required in connection with any such Transfer to an Affiliate of such holder or
to an "accredited investor" (as such term is defined in Rule 501 promulgated
under the Securities Act) upon receipt by the Company of reasonably satisfactory
evidence of such transferee's status as such. Subject to complying with the
other applicable provisions hereof, such holder of Restricted Securities shall
be entitled to consummate such Transfer in accordance with the terms of the
notice delivered by him or it to the Company if
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the Company does not reasonably object (on the basis that such Transfer violates
the provisions of this ARTICLE V) to such Transfer within five (5) days after
the delivery of such notice. Each certificate or other instrument evidencing the
Restricted Securities issued upon the Transfer of any Restricted Securities (and
each certificate or other instrument evidencing any untransferred balance of
such Restricted Securities) shall bear the legend set forth in SECTION 5.2)
unless (i) in such opinion of such counsel registration of future transfer is
not required by the applicable provisions of the Securities Act or (ii) the
Company shall have waived the requirement of such legend.
5.4 REMOVAL OF LEGENDS, ETC.
Notwithstanding the foregoing provisions of this ARTICLE V, the
restrictions imposed by SECTIONS 5.1, 5.2 and 5.3 upon the transferability of
any Restricted Securities shall cease and terminate when (a) such Restricted
Securities are sold or otherwise disposed of in accordance with the intended
method of disposition by the seller or sellers thereof set forth in a
Registration Statement or are sold or otherwise disposed of in a transaction
contemplated by SECTION 5.3 which does not require that the Restricted
Securities transferred bear the legend set forth in SECTION 5.2, or (b) the
holder of such Restricted Securities has met the requirement of Transfer of such
Restricted Securities pursuant to subparagraph (k) of Rule 144. Whenever the
restrictions imposed by SECTIONS 5.1, 5.2 and 5.3 shall terminate, as herein
provided, the holder of any Restricted Securities shall be entitled to receive
from the Company, without expense, a new certificate not bearing the restrictive
legend set forth in SECTION 5.2 and not containing any other reference to the
restrictions imposed by SECTIONS 5.1, 5.2 and 5.3.
5.5 ADDITIONAL LEGEND.
(a) Each certificate evidencing Stockholder Shares and each
certificate issued in exchange for or upon the Transfer of any Stockholder
Shares (if such shares remain Stockholder Shares as defined herein after such
Transfer) shall be stamped or otherwise imprinted with a legend in substantially
the following form:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO A
STOCKHOLDERS' AGREEMENT DATED AS OF AUGUST [_], 2002 (AS THE SAME MAY
FROM TIME TO TIME BE AMENDED, RESTATED, SUPPLEMENTED OR OTHERWISE
MODIFIED IN ACCORDANCE WITH THE TERMS THEREOF, THE "AGREEMENT"), AMONG
THE ISSUER OF SUCH SECURITIES (THE "COMPANY") AND CERTAIN OF THE
COMPANY'S Stockholders. THE TERMS OF THE AGREEMENT INCLUDE, AMONG
OTHER THINGS, RESTRICTIONS ON TRANSFERS. A COPY OF THE AGREEMENT WILL
BE FURNISHED WITHOUT CHARGE BY THE COMPANY TO THE HOLDER HEREOF UPON
WRITTEN REQUEST."
(b) The Company shall imprint such legends on certificates evidencing
shares outstanding prior to the date hereof. The legend set forth above shall be
removed from the certificates evidencing any shares which cease to be
Stockholder Shares in accordance with the terms of this Agreement.
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ARTICLE VI
AMENDMENT AND WAIVER
6.1 AMENDMENT.
Except as expressly set forth herein, the provisions of this Agreement may
only be amended, modified or waived with the prior written consent of (a) the
Company and (b) the Requisite Holders; PROVIDED, HOWEVER, that (i) any such
amendment, modification, or waiver that would adversely affect the rights
hereunder of any Stockholder, in its capacity as a Stockholder of a particular
class (i.e., Investor Stockholders and Management Stockholders), without
similarly affecting the rights hereunder of all Stockholders of the same class,
in their capacities as Stockholders of such class, shall not be effective as to
such Stockholder without his or its prior written consent, (ii) any such
amendment, modification or waiver that would adversely affect the rights
hereunder of any particular class of Stockholders, in their capacities as
members of such class, without similarly affecting the rights hereunder of all
other classes of Stockholders, shall not be effective as to such class of
Stockholders without the prior written consent of the Stockholders of such class
holding in the aggregate in excess of fifty percent (50%) of the Stockholder
Shares held by such Stockholders as members of such class, (iii) any such
amendment, modification, or waiver that would adversely affect the rights
hereunder of JPMP Global Investors shall not be effective without its prior
written consent, and (iv) SCHEDULE I to this Agreement shall be deemed to be
automatically amended from time to time to reflect Transfers of Securities made
in compliance with ARTICLE II and ARTICLE V without requiring the consent of any
party, and the Company will, from time to time, distribute to the Stockholders a
revised SCHEDULE I to reflect any such changes.
6.2 WAIVER.
No course of dealing between the Company and the Stockholders (or any of
them) or any delay in exercising any rights hereunder will operate as a waiver
of any rights of any party to this Agreement. The failure of any party to
enforce any of the provisions of this Agreement will in no way be construed as a
waiver of such provisions and will not affect the right of such party thereafter
to enforce each and every provision of this Agreement in accordance with its
terms
ARTICLE VII
TERMINATION
The provisions of this Agreement, except as otherwise expressly provided
herein, shall terminate upon the first to occur of (a) the twentieth anniversary
of the date hereof, (b) the dissolution, liquidation or winding-up of the
Company, (c) the Sale of the Company, (d) the consummation of a Qualified Public
Offering or (e) the approval of such termination by (i) the Company, (ii) the
Requisite Holders and (iii) the Requisite Management Stockholders. Anything
contained herein to the contrary notwithstanding, as to any particular
Stockholder, this Agreement shall no longer be binding or of further force or
effect as to such Stockholder, except as otherwise expressly provided herein, as
of the date such Stockholder has Transferred all of
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such Stockholder's interest in the Stockholder Shares and the Transferees of
such Stockholder Shares have, if required by SECTION 2.2(b) hereof, executed
Joinder Agreements.
ARTICLE VIII
MISCELLANEOUS
8.1 SEVERABILITY.
It is the desire and intent of the parties hereto that the provisions of
this Agreement be enforced to the fullest extent permissible under the laws and
public policies applied in each jurisdiction in which enforcement is sought.
Accordingly, if any particular provision of this Agreement shall be adjudicated
by a court of competent jurisdiction to be invalid, prohibited or unenforceable
for any reason, such provision, as to such jurisdiction, shall be ineffective,
without invalidating the remaining provisions of this Agreement or affecting the
validity or enforceability of this Agreement or affecting the validity or
enforceability of such provision in any other jurisdiction. Notwithstanding the
foregoing, if such provision could be more narrowly drawn so as not to be
invalid, prohibited or unenforceable in such jurisdiction, it shall, as to such
jurisdiction, be so narrowly drawn, without invalidating the remaining
provisions of this Agreement or affecting the validity or enforceability of such
provision in any other jurisdiction.
8.2 ENTIRE AGREEMENT.
This Agreement and the other Documents or agreements referred to herein and
to be executed and delivered in connection herewith embody the entire agreement
and understanding among the parties hereto with respect to the subject matter
hereof and thereof and supersede and preempt any and all prior and
contemporaneous understandings, agreements, arrangements or representations by
or among the parties, written or oral, which may relate to the subject matter
hereof or thereof in any way. Other than this Agreement, the other Documents and
the other agreements or instruments referred to herein and to be executed and
delivered in connection herewith, there are no other agreements continuing in
effect relating to the subject matter hereof, including preemptive rights,
rights of first refusal, voting of capital stock of the Company or election of
members of the Board.
8.3 INDEPENDENCE OF AGREEMENTS, COVENANTS, REPRESENTATIONS AND WARRANTIES.
All agreements and covenants hereunder shall be given independent effect so
that if a certain action or condition constitutes a default under a certain
agreement or covenant, the fact that such action or condition is permitted by
another agreement or covenant shall not affect the occurrence of such default,
unless expressly permitted under an exception to such initial agreement or
covenant. In addition, all representations and warranties hereunder shall be
given independent effect so that if a particular representation or warranty
proves to be incorrect or is breached, the fact that another representation or
warranty concerning the same or similar subject matter is correct or is not
breached will not affect the incorrectness of or a breach of a representation
and warranty hereunder. The exhibits and schedules attached hereto are hereby
made part of this Agreement in all respects.
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8.4 SUCCESSORS AND ASSIGNS.
Except as otherwise provided herein, this Agreement will bind and inure to
the benefit of and be enforceable by the Company and its successors and assigns
and the Stockholders and any subsequent holders of Stockholder Shares and the
respective successors and assigns of each of them, so long as they hold
Stockholder Shares. None of the provisions hereof shall create, or be construed
or deemed to create, any right to employment in favor of any Person by the
Company or any of its Subsidiaries.
8.5 COUNTERPARTS; FACSIMILE SIGNATURES; VALIDITY.
This Agreement may be executed in any number of counterparts, and each such
counterpart hereof shall be deemed to be an original instrument, but all such
counterparts together shall constitute but one agreement. Facsimile counterpart
signatures to this Agreement shall be acceptable and binding. The failure of any
Stockholder to execute this agreement does not make it invalid as against any
other Stockholder.
8.6 REMEDIES.
(a) Each Stockholder shall have all rights and remedies reserved for
such Stockholder pursuant to this Agreement and all of the rights which such
Stockholder has under any law or equity. Any Person having any rights under any
provision of this Agreement will be entitled to enforce such rights
specifically, to recover damages by reason of any breach of any provision of
this Agreement and to exercise all other rights granted by law or equity.
(b) The parties hereto agree that if any parties seek to resolve any
dispute arising under this Agreement pursuant to a legal proceeding, the
prevailing parties to such proceeding shall be entitled to receive reasonable
fees and expenses (including reasonable attorneys' fees and expenses) incurred
in connection with such proceedings.
(c) It is acknowledged that it will be impossible to measure in money
the damages that would be suffered by any party hereto if any Person also party
hereto fails to comply with any of the obligations imposed on it upon them in
this Agreement or in the Restated Certificate or By-laws and that in the event
of any such failure, the aggrieved party will be irreparably damaged and will
not have an adequate remedy at law. Any such aggrieved party shall, therefore,
be entitled to equitable relief, including specific performance, to enforce such
obligations, and if any action should be brought in equity to enforce any of the
provisions of this Agreement, none of the parties hereto shall raise the defense
that there is an adequate remedy at law.
8.7 NOTICES.
All notices, claims, requests, demands or other communications which are
required or otherwise delivered hereunder shall be deemed to be sufficient and
duly given if contained in a written instrument (a) personally delivered or sent
by facsimile, (b) sent by nationally-recognized overnight courier guaranteeing
next Business Day delivery or (c) sent by first class registered or certified
mail, postage prepaid, return receipt requested, addressed as follows:
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(a) if to the Company, to:
MQ Associates, Inc.
c/o J.P. Morgan Partners, LLC
1221 Avenue of the Americas
New York, NY 10112
Telephone: (212) 899-3400
Facsimile: (212) 899-3401
Attention: Official Notice Clerk
with copies to:
O'Sullivan LLP
30 Rockefeller Plaza, 41st Floor
New York, NY 10112
Telephone: (212) 408-2400
Facsimile: (212) 408-2420
Attention: Christopher P. Giordano, Esq.;
(b) if to any Stockholder, to it at its address set forth on
SCHEDULE I attached hereto;
(c) if to JPMP Global Investors, to:
J.P. Morgan Partners Global Investors, L.P.
c/o J.P. Morgan Partners, LLC
1221 Avenue of the Americas
New York, NY 10112
Telephone: (212) 899-3400
Facsimile: (212) 899-3401
Attention: Official Notice Clerk
with copies to:
O'Sullivan LLP
30 Rockefeller Plaza, 41st Floor
New York, NY 10112
Telephone: (212) 408-2400
Facsimile: (212) 408-2420
Attention: Christopher P. Giordano, Esq.;
or to such other address as the party to whom notice is to be given may have
furnished to each other party in writing in accordance herewith. Any such notice
or communication shall be deemed to have been received (i) when delivered, if
personally delivered or sent by facsimile, (ii) on the first Business Day after
dispatch, if sent by nationally-recognized, overnight courier
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guaranteeing next Business Day delivery and (iii) on the third Business Day
following the date on which the piece of mail containing such communication is
posted, if sent by first class registered or certified mail.
8.8 GOVERNING LAW.
This Agreement shall be governed by and construed in accordance with the
domestic laws of the State of New York without giving effect to any choice or
conflict of law provision or rule that would cause the application of the laws
of any jurisdiction other than the State of New York; PROVIDED, HOWEVER, that,
to the extent this Agreement relates to the internal affairs of the Company,
such internal affairs of the Company shall be governed by and construed in
accordance with the domestic laws of the State of Delaware.
8.9 WAIVER OF JURY TRIAL.
EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY
JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO
THIS AGREEMENT.
8.10 MEDIATION; CONSENT TO JURISDICTION.
(a) Except as provided herein, no civil action with respect to any
dispute, claim or controversy arising out of this Agreement may be commenced
until the matter has been submitted to JAMS, or its successor, for mediation.
Any party hereto may commence mediation by providing to JAMS and the other
parties a written request for mediation, setting forth the subject of the
dispute and the relief requested. The parties will cooperate with JAMS and with
one another in selecting a mediator from JAMS' panel of neutrals, and in
scheduling the mediation proceedings. The parties' covenant that they will
participate in the mediation in good faith. Subject to SECTION 8.6(b), each
party shall pay it own attorneys' fees, costs and expenses in connection with
the mediation and share equally in the fees and expenses charged by JAMS. All
offers, promises, conduct and statements, whether oral or written, made in the
course of the mediation by any of the parties, their agents, employees, experts
and attorneys, and by the mediator and any JAMS employees, are confidential,
privileged and inadmissible for any purpose, including impeachment, in any
litigation or other proceeding involving the parties, PROVIDED that evidence
that is otherwise admissible or discoverable shall not be rendered inadmissible
or non-discoverable as a result of its use in the mediation. Either party may
seek equitable relief prior to the mediation to preserve the status quo pending
the completion of that process. Except for such an action to obtain equitable
relief, neither party may commence a civil action with respect to the matters
submitted to mediation until after the completion of the initial mediation
session, or 60 days after the date of filing the written request for mediation,
whichever occurs first. Mediation may continue after the commencement of a civil
action, if the parties so desire.
(b) Each of the parties hereto irrevocably submits to the
non-exclusive jurisdiction of (a) the Supreme Court of the State of New York,
New York County and (b) the United States District Court for the Southern
District of New York, for the purposes of any suit, action or other proceeding
arising out of this Agreement or the transactions contemplated hereby. Each of
the
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parties hereto further agrees that service of any process, summons, notice
or document by U.S. registered mail to such party's respective address set forth
in SECTION 8.7 shall be effective service of process for any action, suit or
proceeding in the State of New York with respect to any matters to which it has
submitted to jurisdiction in this SECTION 8.10(b). Each of the parties hereto
irrevocably and unconditionally waives any objection to the laying of venue of
any action, suit or proceeding arising out of this Agreement or the transactions
contemplated hereby and thereby in (a) the Supreme Court of the State of New
York, New York County or (b) the United States District Court for the Southern
District of New York, and hereby and thereby further irrevocably and
unconditionally waives and agrees not to plead or claim in any such court that
any such action, suit or proceeding brought in any such court has been brought
in an inconvenient forum.
8.11 FURTHER ASSURANCES.
Each party hereto shall do and perform or cause to be done and performed
all such further acts and things and shall execute and deliver all such other
agreements, certificates, instruments, and documents as any other party hereto
reasonably may request in order to carry out the provisions of this Agreement,
the Documents and the consummation of the transactions contemplated hereby.
8.12 CONFLICTING AGREEMENTS.
No Stockholder shall maintain or otherwise enter into any stockholder
agreements or arrangements of any kind with any Person with respect to any
Stockholder Shares on terms inconsistent with the provisions of this Agreement
(whether or not such agreements or arrangements are with other Stockholders or
with Persons that are not parties to this Agreement), including agreements or
arrangements with respect to the acquisition or disposition of Stockholder
Shares in a manner which is inconsistent with this Agreement.
8.13 THIRD PARTY RELIANCE.
Anything contained herein to the contrary notwithstanding, except for
SECTION 4.4 hereof the covenants of the Company contained in this Agreement (a)
are being given by the Company as an inducement to the Stockholders to enter
into this Agreement and the other Documents (and the Company acknowledges that
the Stockholders have expressly relied thereon) and (b) are solely for the
benefit of the Stockholders. Accordingly, other than as set forth in
SECTION 8.14, no third party (including, without limitation, any other holder of
capital stock of the Company) or anyone acting on behalf of any thereof other
than the Stockholders, shall be a third party or other beneficiary of such
covenants and no such third party shall have any rights of contribution against
the Stockholders or the Company with respect to such covenants or any matter
subject to or resulting in indemnification under this Agreement or otherwise.
8.14 THIRD PARTY BENEFICIARY.
The Stockholders and the Company acknowledge that JPMP Global Investors
shall be a intended third party beneficiary of this Agreement for purposes of
ARTICLE III, SECTION 6.1 and ARTICLE VIII.
* * * * *
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IN WITNESS WHEREOF, the undersigned have duly executed this
Stockholders' Agreement as of the date first written above.
MQ ASSOCIATES, INC.
By: /s/ GENE VENESKY
----------------------------
Gene Venesky
Chief Executive Officer
MQ INVESTMENT HOLDINGS, LLC
By: J.P. Morgan Partners (BHCA), L.P.,
its Managing Member
By: JPMP Master Fund Manager, L.P.,
its General Partner
By: JPMP Capital Corp.,
its General Partner
By: /s/ MITCHELL BLUTT
----------------------------
Mitchell Blutt, M.D.
Executive Vice President
/s/ GENE VENESKY
----------------------------
Gene Venesky
/s/ J. KENNETH LUKE
----------------------------
J. Kenneth Luke
/s/ THOMAS C. GENTRY
----------------------------
Thomas C. Gentry
/s/ DANIEL C. SCHAEFER
----------------------------
Daniel C. Schaefer
/s/ MICHAEL A. VILLA
----------------------------
Michael A. Villa
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FOR PURPOSES OF ARTICLE III AND
SECTIONS 6.1 AND 8.14 ONLY:
J.P. MORGAN PARTNERS GLOBAL
INVESTORS, L.P.
By: JPMP Global Investors, L.P.,
its General Partner
By: JPMP Capital Corp.,
its General Partner
BY: /s/ MITCHELL BLUTT
----------------------------
Mitchell Blutt, M.D.
Executive Vice President
S-2
EXHIBIT A
JOINDER AGREEMENT
The undersigned is executing and delivering this Joinder Agreement
pursuant to the Stockholders' Agreement dated as of August 15, 2002 (as the
same may hereafter be amended, restated, supplemented or otherwise modified
in accordance with the term therein, the "STOCKHOLDERS' AGREEMENT"), among MQ
Associates, Inc. a Delaware corporation (the "COMPANY") and the Stockholders
named therein.
By executing and delivering this Joinder Agreement to the Company, the
undersigned hereby agrees to become a party to, to be bound by, and to comply
with the provisions of the Stockholders' Agreement in the same manner as if
the undersigned were an original signatory to such agreement.
The undersigned agrees that the undersigned shall be [a] [an]
[Investor Stockholder] [Management Stockholder], as such term is defined
in the Stockholders' Agreement.*
Accordingly, the undersigned has executed and delivered this Joinder
Agreement as of the __ day of ______, _______.
-----------------------------
Signature of Stockholder
-----------------------------
Print Name of Stockholder
- ----------------
* Type of Stockholder shall be the same as the transferor of
the Transferred Securities.