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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE 13D
UNDER THE SECURITIES EXCHANGE ACT OF 1934
(AMENDMENT NO. ___________)*
Occupational Health + Rehabilitation Inc
- --------------------------------------------------------------------------------
(Name of Issuer)
Common Stock, $.001 Par Value Per Share
- --------------------------------------------------------------------------------
(Title of Class of Securities)
674617105
--------------
(CUSIP Number)
Walter H. Stowell, Esq.
Testa, Hurwitz & Thibeault, LLP
125 High Street, Boston, MA 02110
(617) 248-7000
- --------------------------------------------------------------------------------
(Name, Address and Telephone Number of Person Authorized
to Receive Notices and Communications)
November 6, 1996
- --------------------------------------------------------------------------------
(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G
to report the acquisition which is the subject of this Schedule 13D, and is
filing this schedule because of Rule 13d-1(b)(3) or (4), check the following box
[ ].
Check the following box if a fee is being paid with the statement [ ].
(A fee is not required only if the reporting person: (1) has a previous
statement on file reporting beneficial ownership of more than five percent of
the class of securities described in Item 1; and (2) has filed no amendment
subsequent thereto reporting beneficial ownership of five percent or less of
such class.) (See Rule 13d-7.)
NOTE: Six copies of this statement, including all exhibits, should be
filed with the Commission. See Rule 13d-1(a) for other parties to whom copies
are to be sent.
*The remainder of this cover page shall be filled out for a reporting
person's initial filing on this form with respect to the subject class of
securities, and for any subsequent amendment containing information which would
alter disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not
be deemed to be "filed" for the purpose of Section 18 of the Securities Exchange
Act of 1934 ("Act") or otherwise subject to the liabilities of that section of
the Act but shall be subject to all other provisions of the Act (however, see
the Notes).
SCHEDULE 13D
- ------------------------------
CUSIP NO. 674617105
-----------------
- ------------------------------
- --------------------------------------------------------------------------------
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Edward L. Cahill
SSN: ###-##-####
- ---------- ---------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [ ]
(b) [X]
- ---------- ---------------------------------------------------------------------
3 SEC USE ONLY
- ---------- ---------------------------------------------------------------------
4 SOURCE OF FUNDS*
AF
- ---------- ---------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED [ ]
PURSUANT TO ITEMS 2(d) or 2(e)
- ---------- ---------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
USA
- ---------- ---------------------------------------------------------------------
7 SOLE VOTING POWER
-0-
NUMBER OF -------- ------------------------------------------
SHARES 8 SHARED VOTING POWER
BENEFICIALLY 716,667
OWNED BY
EACH -------- ------------------------------------------
REPORTING 9 SOLE DISPOSITIVE POWER
PERSON -0-
WITH
-------- ------------------------------------------
10 SHARED DISPOSITIVE POWER
716,667
- ---------- ---------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
716,667
- ---------- ---------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN [X]
SHARES*
- ---------- ---------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
32.8%
- ---------- ---------------------------------------------------------------------
14 TYPE OF REPORTING PERSON *
IN
- ---------- ---------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7
(INCLUDING EXHIBITS) OF THE SCHEDULE, AND THE SIGNATURE ATTESTATION.
SCHEDULE 13D
- ------------------------------
CUSIP NO. 674617105
-----------------
- ------------------------------
- --------------------------------------------------------------------------------
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
David L. Warnock
SSN: ###-##-####
- ---------- ---------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [ ]
(b) [X]
- ---------- ---------------------------------------------------------------------
3 SEC USE ONLY
- ---------- ---------------------------------------------------------------------
4 SOURCE OF FUNDS*
AF
- ---------- ---------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED [ ]
PURSUANT TO ITEMS 2(d) or 2(e)
- ---------- ---------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
USA
- ---------- ---------------------------------------------------------------------
7 SOLE VOTING POWER
-0-
NUMBER OF -------- ------------------------------------------
SHARES 8 SHARED VOTING POWER
BENEFICIALLY 716,667
OWNED BY
EACH -------- ------------------------------------------
REPORTING 9 SOLE DISPOSITIVE POWER
PERSON -0-
WITH
-------- ------------------------------------------
10 SHARED DISPOSITIVE POWER
716,667
- ---------- ---------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
716,667
- ---------- ---------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN [X]
SHARES*
- ---------- ---------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
32.8%
- ---------- ---------------------------------------------------------------------
14 TYPE OF REPORTING PERSON *
IN
- ---------- ---------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7
(INCLUDING EXHIBITS) OF THE SCHEDULE, AND THE SIGNATURE ATTESTATION.
SCHEDULE 13D
- ------------------------------
CUSIP NO. 674617105
-----------------
- ------------------------------
- --------------------------------------------------------------------------------
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Cahill, Warnock Strategic Partners, L.P.
IRSN: 52-1970604
- ---------- ---------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [ ]
(b) [X]
- ---------- ---------------------------------------------------------------------
3 SEC USE ONLY
- ---------- ---------------------------------------------------------------------
4 SOURCE OF FUNDS*
AF
- ---------- ---------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED [ ]
PURSUANT TO ITEMS 2(d) or 2(e)
- ---------- ---------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware Limited Partnership
- ---------- ---------------------------------------------------------------------
7 SOLE VOTING POWER
-0-
NUMBER OF -------- ------------------------------------------
SHARES 8 SHARED VOTING POWER
BENEFICIALLY 716,667
OWNED BY
EACH -------- ------------------------------------------
REPORTING 9 SOLE DISPOSITIVE POWER
PERSON -0-
WITH
-------- ------------------------------------------
10 SHARED DISPOSITIVE POWER
716,667
- ---------- ---------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
716,667
- ---------- ---------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN [X]
SHARES*
- ---------- ---------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
32.8%
- ---------- ---------------------------------------------------------------------
14 TYPE OF REPORTING PERSON *
PN
- ---------- ---------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7
(INCLUDING EXHIBITS) OF THE SCHEDULE, AND THE SIGNATURE ATTESTATION.
SCHEDULE 13D
- ------------------------------
CUSIP NO. 674617105
-----------------
- ------------------------------
- --------------------------------------------------------------------------------
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Cahill, Warnock Strategic Partners Fund, L.P.
IRSN: 52-1970619
- ---------- ---------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [X]
(b) [ ]
- ---------- ---------------------------------------------------------------------
3 SEC USE ONLY
- ---------- ---------------------------------------------------------------------
4 SOURCE OF FUNDS*
WC, AF
- ---------- ---------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED [ ]
PURSUANT TO ITEMS 2(d) or 2(e)
- ---------- ---------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware Limited Partnership
- ---------- ---------------------------------------------------------------------
7 SOLE VOTING POWER
-0-
NUMBER OF -------- ------------------------------------------
SHARES 8 SHARED VOTING POWER
BENEFICIALLY 716,667
OWNED BY
EACH -------- ------------------------------------------
REPORTING 9 SOLE DISPOSITIVE POWER
PERSON -0-
WITH
-------- ------------------------------------------
10 SHARED DISPOSITIVE POWER
716,667
- ---------- ---------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
716,667
- ---------- ---------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN [X]
SHARES*
- ---------- ---------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
32.8%
- ---------- ---------------------------------------------------------------------
14 TYPE OF REPORTING PERSON *
PN
- ---------- ---------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7
(INCLUDING EXHIBITS) OF THE SCHEDULE, AND THE SIGNATURE ATTESTATION.
SCHEDULE 13D
- ------------------------------
CUSIP NO. 674617105
-----------------
- ------------------------------
- --------------------------------------------------------------------------------
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Cahill, Warnock & Company, LLC
IRSN: 52-1931617
- ---------- ---------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [ ]
(b) [X]
- ---------- ---------------------------------------------------------------------
3 SEC USE ONLY
- ---------- ---------------------------------------------------------------------
4 SOURCE OF FUNDS*
AF
- ---------- ---------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED [ ]
PURSUANT TO ITEMS 2(d) or 2(e)
- ---------- ---------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Maryland Limited Liability Company
- ---------- ---------------------------------------------------------------------
7 SOLE VOTING POWER
-0-
NUMBER OF -------- ------------------------------------------
SHARES 8 SHARED VOTING POWER
BENEFICIALLY 716,667
OWNED BY
EACH -------- ------------------------------------------
REPORTING 9 SOLE DISPOSITIVE POWER
PERSON -0-
WITH
-------- ------------------------------------------
10 SHARED DISPOSITIVE POWER
716,667
- ---------- ---------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
716,667
- ---------- ---------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN [X]
SHARES*
- ---------- ---------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
32.8%
- ---------- ---------------------------------------------------------------------
14 TYPE OF REPORTING PERSON *
OO
- ---------- ---------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7
(INCLUDING EXHIBITS) OF THE SCHEDULE, AND THE SIGNATURE ATTESTATION.
SCHEDULE 13D
- ------------------------------
CUSIP NO. 674617105
-----------------
- ------------------------------
- --------------------------------------------------------------------------------
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Strategic Associates, L.P.
IRSN: 52-1991689
- ---------- ---------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [X]
(b) [ ]
- ---------- ---------------------------------------------------------------------
3 SEC USE ONLY
- ---------- ---------------------------------------------------------------------
4 SOURCE OF FUNDS*
WC, AF
- ---------- ---------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED [ ]
PURSUANT TO ITEMS 2(d) or 2(e)
- ---------- ---------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware Limited Partnership
- ---------- ---------------------------------------------------------------------
7 SOLE VOTING POWER
-0-
NUMBER OF -------- ------------------------------------------
SHARES 8 SHARED VOTING POWER
BENEFICIALLY 716,667
OWNED BY
EACH -------- ------------------------------------------
REPORTING 9 SOLE DISPOSITIVE POWER
PERSON -0-
WITH
-------- ------------------------------------------
10 SHARED DISPOSITIVE POWER
716,667
- ---------- ---------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
716,667
- ---------- ---------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN [X]
SHARES*
- ---------- ---------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
32.8%
- ---------- ---------------------------------------------------------------------
14 TYPE OF REPORTING PERSON *
PN
- ---------- ---------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7
(INCLUDING EXHIBITS) OF THE SCHEDULE, AND THE SIGNATURE ATTESTATION.
ITEM 1. SECURITY AND ISSUER:
This statement relates to the Common Stock, $.001 par value per share
(the "Shares"), of Occupational Health + Rehabilitation Inc, a Delaware
corporation (the "Issuer"). The address of the Issuer's principal executive
offices is 175 Derby Street, Suite 36, Hingham, MA 02043-5048.
ITEM 2. IDENTITY AND BACKGROUND:
This statement is being filed by (i) Cahill, Warnock Strategic Partners
Fund, L.P. ("Strategic Partners Fund"), (ii) Cahill Warnock Strategic Partners,
L.P. ("Strategic Partners"), the sole general partner of Strategic Partners
Fund, (iii) Strategic Associates, L.P. ("Strategic Associates"), (iv) Cahill,
Warnock & Company, LLC ("Cahill, Warnock & Co."), the sole general partner of
Strategic Associates, (v) Edward L. Cahill ("Cahill"), a general partner of
Strategic Partners and a member of Cahill, Warnock & Co., and (vi) David L.
Warnock ("Warnock"), a general partner of Strategic Partners and a member of
Cahill, Warnock & Co. Strategic Partners Fund, Strategic Partners, Strategic
Associates, Cahill, Warnock & Co., Cahill and Warnock are sometimes referred to
collectively herein as the "Reporting Persons."
The address of the principal business and principal office of Strategic
Partners Fund, Strategic Partners, Strategic Associates and Cahill, Warnock &
Co. is 10 North Calvert Street, Suite 735, Baltimore, MD 21202. The business
address of Cahill and Warnock is 10 North Calvert Street, Suite 735, Baltimore,
MD 21202.
The state of organization for Strategic Partners Fund, Strategic
Partners and Strategic Associates is Delaware. The state of organization for
Cahill, Warnock & Co. is Maryland. Both Cahill and Warnock are citizens of the
United States of America.
The principal business of Strategic Partners Fund and Strategic
Associates is to make private equity investments in micro-cap public companies
seeking capital for expansion or undergoing a restructuring of ownership. The
principal business of Strategic Partners is to act as the sole general partner
of Strategic Partners Fund. The principal business of Cahill, Warnock & Co. is
to act as the sole general partner of Strategic Associates and Camden Partners,
L.P. ("Camden Partners") and to manage the activities of Strategic Partners
Fund, Strategic Associates and Camden Partners. The principal occupations of
Cahill and Warnock are their activities on behalf of Strategic Partners Fund,
Strategic Partners, Strategic Associates, Cahill, Warnock & Co. and Camden
Partners.
The principal business of Camden Partners is to make passive
investments in public companies. The principal office of Camden Partners is 10
North Calvert Street, Suite 735, Baltimore, MD 21202.
During the five years prior to the date hereof, none of the Reporting
Persons has been convicted in a criminal proceeding (excluding traffic
violations or similar misdemeanors) or has been a party to a civil proceeding
ending in a judgment, decree or final order enjoining future violations of, or
prohibiting or mandating activities subject to, federal or state securities laws
or finding a violation with respect to such laws.
ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION:
On November 6, 1996 Strategic Partners Fund acquired 679,042 shares of
Series A Convertible Preferred Stock of the Issuer for a total purchase price of
$4,074,252. The preferred stock acquired by Strategic Partners Fund is currently
convertible into 679,042 shares of the Issuer's Common Stock. The working
capital of Strategic Partners Fund was the source of funds for this purchase. No
part of the purchase price was or will be represented by funds or other
consideration borrowed or otherwise obtained for the purpose of acquiring,
holding, trading or voting the securities.
On November 6, 1996 Strategic Associates acquired 37,625 shares of
Series A Convertible Preferred Stock of the Issuer for a total purchase price of
$225,750. The preferred stock acquired by Strategic Associates is currently
convertible into 37,625 shares of the Issuer's Common Stock. The working capital
of Strategic Associates was the source of funds for this purchase. No part of
the purchase price was or will be represented by funds or other consideration
borrowed or otherwise obtained for the purpose of acquiring, holding, trading or
voting the securities.
ITEM 4. PURPOSE OF TRANSACTION:
Strategic Partners Fund and Strategic Associates acquired the Issuer's
securities for investment purposes. Depending on market conditions, their
continuing evaluation of the business and prospects of the Issuer and other
factors, Strategic Partners Fund and Strategic Associates may dispose of or
acquire additional securities of the Issuer. Except as stated below, none of the
Reporting Persons has any present plans which relate to or would result in:
(a) The acquisition by any person of additional securities of the
Issuer, or the disposition of securities of the Issuer;
(b) An extraordinary corporate transaction, such as a merger,
reorganization or liquidation, involving the Issuer or any of
its subsidiaries;
(c) A sale or transfer of a material amount of assets of the
Issuer or of any of its subsidiaries;
(d) Any change in the present board of directors or management of
the Issuer, including any plans or proposals to change the
number or term of directors or to fill any existing vacancies
on the board;
(e) Any material change in the present capitalization or dividend
policy of the Issuer;
(f) Any other material change in the Issuer's business or
corporate structure;
(g) Changes in the Issuer's charter, bylaws or instruments
corresponding thereto or other actions which may impede the
acquisition of control of the Issuer by any person;
(h) Causing a class of securities of the Issuer to be delisted
from a national securities exchange or to cease to be
authorized to be quoted in an inter-dealer quotation system of
a registered national securities association;
(i) A class of equity securities of the Issuer becoming eligible
for termination of registration pursuant to Section 12(g)(4)
of the Securities Exchange Act of 1934; or
(j) Any action similar to any of those enumerated above.
Exception. Pursuant to the terms of the Stockholders' Agreement of the
Issuer, dated as of November 6, 1996 (the "Stockholders' Agreement")(attached
hereto as Exhibit 3), each of the parties thereto has agreed to vote all of its
shares of Series A Convertible Preferred Stock and Common Stock in the Issuer to
elect certain persons to the Board of Directors of the Issuer. Pursuant to such
agreement, Strategic Partners Fund has the right to designate two members of the
Board of Directors of the Issuer, one of whom shall initially be Cahill and the
other of whom shall be designated by Strategic Partners Fund at a later date.
Exception. Pursuant to the terms of the Series A Convertible Preferred
Stock Purchase Agreement, dated November 6, 1996 (the "Purchase
Agreement")(attached hereto as Exhibit 4), the Issuer may, with the written
consent of a majority in interest of the Purchasers thereunder, upon not less
than ten days notice given prior to May 6, 1997, offer to the Purchasers the
option to purchase, and each Purchaser may, at its option, so purchase certain
Additional Preferred Shares as indicated on Schedule I attached to the Purchase
Agreement; provided, however, that if the Issuer does indeed extend such offer
to purchase with the required consent of the Purchasers, Strategic Partners Fund
and Strategic Associates are obligated under the Purchase Agreement to subscribe
for any Additional Preferred Shares not so subscribed for by any other
Purchaser. Also, pursuant to the Purchase Agreement, the Purchasers have a right
of first refusal in certain new issuances of securities by the Issuer.
Exception. Pursuant to the terms of the Registration Rights Agreement
of the Issuer, dated as of November 6, 1996 (the "Registration Rights
Agreement") (attached hereto as Exhibit 5), the Investors thereunder, including
Strategic Partners Fund and Strategic Associates, have the right to register and
sell shares of Common Stock of the Issuer issued upon conversion of the Series A
Convertible Preferred Stock of the Issuer, which such shares to be sold may
account for not less than 25% of the first underwritten public offering of the
Issuer following the date of execution of the Registration Rights Agreement.
ITEM 5. INTEREST IN THE SECURITIES OF THE ISSUER:
(a) Strategic Partners Fund is the record owner of 679,042 shares of
Series A Convertible Preferred Stock of the Issuer (the "Fund Preferred Stock").
The Fund Preferred Stock is currently convertible into 679,042 shares of the
Issuer's Common Stock (the "Fund Conversion Shares"). Strategic Associates is
the record owner of 37,625 shares of Series A Convertible Preferred Stock of the
Issuer (the "Associates Preferred Stock"). The Associates Preferred Stock is
currently convertible into 37,625 shares of the Issuer's Common Stock (the
"Associates Conversion Shares"). Because of their relationship as affiliated
entities, both Strategic Partners Fund and Strategic Associates may be deemed to
own beneficially both the Fund Conversion Shares and the Associates Conversion
Shares. As general partners of Strategic Partners Fund and Strategic Associates,
respectively, Strategic Partners and Cahill, Warnock & Co. may be deemed to own
beneficially both the Fund Conversion Shares and the Associates Conversion
Shares. As the individual general partners of Strategic Partners and as the
members of Cahill, Warnock & Co., both Cahill and Warnock may be deemed to own
beneficially both the Fund Conversion Shares and the Associates Conversion
Shares.
By virtue of the Stockholders' Agreement each of the Reporting Persons
may be deemed to share voting power with respect to each share of the Issuer's
stock subject to the agreement. Consequently, each of the
Reporting Persons may be deemed to beneficially own, in addition to the Fund
Conversion Shares and the Associates Conversion Shares, an additional 1,621,552
shares of the Issuer's Common Stock (the "Agreement Shares").
Strategic Partners Fund disclaims beneficial ownership of all of the
Associates Conversion Shares and the Agreement Shares. Strategic Associates
disclaims beneficial ownership of all of the Fund Conversion Shares and
Agreement Shares. Strategic Partners, Cahill, Warnock & Co., Cahill and Warnock
each disclaim beneficial ownership of the Fund Conversion Shares, the Associates
Conversion Shares and the Agreement Shares.
Each of the Reporting Persons may be deemed to own beneficially 32.8%
of the Issuer's Common Stock, which percentage is calculated based upon (i)
1,471,480 shares of Common Stock reported outstanding by the Issuer on November
6, 1996, and (ii) the number of shares of Common Stock (716,667) issuable upon
conversion of the Fund Preferred Stock and Associates Preferred Stock. The
calculation of beneficial ownership percentage does not reflect potential deemed
beneficial ownership of the Agreement Shares.
In Amendment No. 1 to the Limited Partnership Agreement of Strategic
Partners Fund, dated July 26, 1996 (attached hereto as Exhibit 2), Strategic
Partners and the limited partners of Strategic Partners Fund agreed that any
securities of a particular issuer that are acquired by both Strategic Partners
Fund and Strategic Associates shall be sold or otherwise disposed of at
substantially the same time, on substantially the same terms and in amounts
proportionate to the size of each of their investments. As a consequence,
Strategic Associates and Strategic Partners Fund may be deemed to be members of
a group pursuant to Rule 13d-5(b)(1) of the Securities Exchange Act of 1934.
Strategic Partners, Cahill, Warnock & Co., Cahill and Warnock each disclaim
membership in the aforementioned group.
(b) Number of Shares as to which each such person has
(i) Sole power to vote or direct the vote:
0 shares for each Reporting Person;
(ii) Shared power to vote or direct the vote:
716,667* shares for each Reporting Person;
(iii) Sole power to dispose or to direct the disposition:
0 shares for each Reporting Person;
(iv) Shared power to dispose or to direct the disposition:
716,667 shares for each Reporting Person.
* Does not reflect potential deemed beneficial ownership of the
Agreement Shares.
(c) Except as set forth above, none of the Reporting Persons has
effected any transaction in the Shares during the last 60 days.
(d) No other person is known to have the right to receive or the power
to direct the receipt of dividends from, or any proceeds from the sale of, the
Shares beneficially owned by any of the Reporting Persons.
(e) Not applicable.
ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH
RESPECT TO SECURITIES OF THE ISSUER:
In Amendment No. 1 to the Limited Partnership Agreement of Strategic
Partners Fund, dated July 26, 1996 (attached hereto as Exhibit 2), Strategic
Partners and the limited partners of Strategic Partners Fund agreed that any
securities of a particular issuer that are acquired by both Strategic Partners
Fund and Strategic Associates shall be sold or otherwise disposed of at
substantially the same time, on substantially the same terms and in amounts
proportionate to the relative size of each of their investments.
Pursuant to the terms of the Purchase Agreement (attached hereto as
Exhibit 4), the Issuer may, with the written consent of a majority in interest
of the Purchasers thereunder, upon not less than ten days notice given prior to
May 6, 1997, offer to the Purchasers the option to purchase, and each Purchaser
may, at its option, so purchase certain Additional Preferred Shares as indicated
on Schedule I attached to the Purchase Agreement; provided, however, that if the
Issuer does indeed extend such offer to purchase with the required consent of
the Purchasers, Strategic Partners Fund and Strategic Associates are obligated
under the Purchase Agreement, to subscribe for any Additional Preferred Shares
not so subscribed for by any other Purchaser. Also, pursuant to the Purchase
Agreement, the Purchasers have a right of first refusal in certain new issuances
of securities by the Issuer. The parties to the Purchase Agreement are as
follows: the Issuer, Strategic Partners Fund, Strategic Associates, Axa U.S.
Growth Fund, LLC, U.S. Growth Fund Partners, C.V., Double Black Diamond II, LLC,
Almanori Limited, The Venture Capital Fund of New England III, L.P., BancBoston
Ventures, Inc., Venrock Associates, Venrock Associates II, L.P. and Asset
Management Associates, 1989, L.P.
Pursuant to the terms of the Registration Rights Agreement (attached
hereto as Exhibit 5), the Investors thereunder, including Strategic Partners
Fund and Strategic Associates, have the right to register and sell shares of
Common Stock of the Issuer issued upon conversion of the Series A Convertible
Preferred Stock of the Issuer, which such shares to be sold may account for not
less than 25% of the first underwritten public offering of the Issuer following
the date of execution of the Registration Rights Agreement. The parties to the
Registration Rights Agreement are as follows: the Issuer, Strategic Partners
Fund, Strategic Associates, Axa U.S. Growth Fund, LLC, U.S. Growth Fund
Partners, C.V., Double Black Diamond II, LLC, Almanori Limited, The Venture
Capital Fund of New England III, L.P., BancBoston Ventures, Inc., Venrock
Associates, Venrock Associates II, L.P. and Asset Management Associates, 1989,
L.P.
Pursuant to the terms of the Stockholders' Agreement (attached hereto
as Exhibit 3), each of the parties thereto has agreed to vote all of its shares
of Series A Convertible Preferred Stock and Common Stock in the Issuer to elect
certain persons to the Board of Directors of the Issuer. Pursuant to such
agreement, Strategic Partners Fund has the right to designate two members of the
Board of Directors of the Issuer, one of whom shall initially be Cahill and the
other of whom shall be designated by Strategic Partners Fund at a later date.
The parties to the Stockholders' Agreement are as follows: the Issuer, Strategic
Partners Fund, Strategic Associates, Axa U.S. Growth Fund, LLC, U.S. Growth Fund
Partners, C.V., Double Black Diamond II, LLC, Almanori Limited, The Venture
Capital Fund of New England III, L.P., BancBoston Ventures, Inc., Venrock
Associates, Venrock Associates II, L.P., Lynne M. Rosen, John
Garbarino, Prince Venture Partners III Limited Partnership and Asset Management
Associates, 1989, L.P.
ITEM 7. MATERIAL TO BE FILED AS EXHIBITS:
Exhibit 1 - Agreement regarding filing of joint Schedule 13D
Exhibit 2 - Amendment No. 1 to the Limited Partnership Agreement of
Strategic Partners Fund
Exhibit 3 - Stockholders' Agreement dated November 6, 1996
Exhibit 4 - Series A Convertible Preferred Stock Purchase Agreement
dated November 6, 1996
Exhibit 5 - Registration Rights Agreement dated November 6, 1996
SCHEDULE 13D
SIGNATURE
After reasonable inquiry and to the best of our knowledge and belief,
we certify that the information set forth in this statement is true, complete
and correct.
Dated: November 18, 1996 /s/ Edward L. Cahill
------------------------------------------
Edward L. Cahill
/s/ David L. Warnock
------------------------------------------
David L. Warnock
CAHILL, WARNOCK STRATEGIC
PARTNERS FUND, L.P.
By: Cahill, Warnock Strategic Partners,
L.P., its Sole General Partner
By: /s/ Edward L. Cahill
---------------------------------
Edward L. Cahill, General Partner
By: /s/ David L. Warnock
---------------------------------
David L. Warnock, General Partner
CAHILL, WARNOCK STRATEGIC
PARTNERS, L.P.
By: /s/ Edward L. Cahill
---------------------------------
Edward L. Cahill, General Partner
By: /s/ David L. Warnock
---------------------------------
David L. Warnock, General Partner
STRATEGIC ASSOCIATES, L.P.
By: Cahill, Warnock & Co., LLC, its
sole General Partner
By: /s/ Edward L. Cahill
---------------------------------
Edward L. Cahill, Member
By: /s/ David L. Warnock
---------------------------------
David L. Warnock, Member
CAHILL, WARNOCK & CO., LLC
By: /s/ Edward L. Cahill
---------------------------------
Edward L. Cahill, Member
By: /s/ David L. Warnock
---------------------------------
David L. Warnock, Member
Exhibit 1
AGREEMENT
Pursuant to Rule 13d-1(f)(1) under the Securities Exchange Act of 1934,
the undersigned hereby agree that only one statement containing the information
required by Schedule 13D need be filed with respect to the ownership by each of
the undersigned of shares of stock of Occupation Health + Rehabilitation Inc.
This Agreement may be executed in any number of counterparts, each of
which shall be deemed an original.
Executed this 18th day of November, 1996.
/s/ Edward L. Cahill
---------------------------------------------
Edward L. Cahill
/s/ David L. Warnock
---------------------------------------------
David L. Warnock
CAHILL, WARNOCK STRATEGIC
PARTNERS FUND, L.P.
By: Cahill, Warnock Strategic Partners,
L.P., its Sole General Partner
By: /s/ Edward L. Cahill
----------------------------------------
Edward L. Cahill, General Partner
By: /s/ David L. Warnock
----------------------------------------
David L. Warnock, General Partner
CAHILL, WARNOCK STRATEGIC
PARTNERS, L.P.
By: /s/ Edward L. Cahill
---------------------------------------------
Edward L. Cahill, General Partner
By: /s/ David L. Warnock
---------------------------------------------
David L. Warnock, General Partner
STRATEGIC ASSOCIATES, L.P.
By: Cahill, Warnock & Co., LLC, its
sole General Partner
By: /s/ Edward L. Cahill
----------------------------------------
Edward L. Cahill, Member
By: /s/ David L. Warnock
----------------------------------------
David L. Warnock, Member
CAHILL, WARNOCK & CO., LLC
By: /s/ Edward L. Cahill
---------------------------------------------
Edward L. Cahill, Member
By: /s/ David L. Warnock
---------------------------------------------
David L. Warnock, Member
Exhibit 2
AMENDMENT NO. 1 TO
LIMITED PARTNERSHIP AGREEMENT
OF
CAHILL, WARNOCK STRATEGIC PARTNERS FUND, L.P.
AMENDMENT NO. 1 dated as of the 26th day of July, 1996, by and among
Cahill, Warnock Strategic Partners, L.P., a Delaware limited partnership, as
general partner (the "General Partner") of Cahill, Warnock Strategic Partners
Fund, L.P., a Delaware limited partnership (the "Partnership"), and the Limited
Partners of the Partnership listed on Schedule A to the Limited Partnership
Agreement of the Partnership, dated as of April 11, 1996 (the "Partnership
Agreement"), at least 66 2/3% in interest of whom have executed a counterpart
signature page to this Amendment No. 1:
WHEREAS, immediately prior to the admission on the date hereof of
additional Limited Partners to the Partnership pursuant to Section 8(c) of the
Partnership Agreement, the parties hereto desire to amend the Partnership
Agreement and approve Amendment No. 1 to the Management Agreement, the form of
which Management Agreement is attached to the Partnership Agreement as Schedule
B.
NOW, THEREFORE, the parties hereto, in consideration of the premises
and the agreements herein contained and intending to be legally bound hereby,
agree as follows:
1. Section 4(k)(2) of the Partnership Agreement is amended by
deleting the second sentence thereof in its entirety and
substituting the following:
"Notwithstanding Section 4(e)(1) to the contrary, the
Principals may organize, after the date of this
Agreement, other investment funds and client
investment vehicles for the benefit of employees,
associates and advisors of the General Partner and
the Principals and for investors who may be
strategically important to the Partnership,
specifically for the purpose of co-investing with the
Partnership; provided that the aggregate amount of
capital committed to such other investment funds and
client investment vehicles does not exceed $7
million; and provided, further, that any such
investment funds or client investment vehicles which
are managed by the General Partner or the Principals
shall sell or otherwise dispose of each such
co-investment at substantially the same time and on
substantially the same terms as the Partnership in
amounts proportionate to the relative size of the
investments made by such investment funds and client
investment vehicles and the Partnership."
2. Section 7(a) of the Partnership Agreement is amended by
deleting the first sentence thereof in its entirety and
substituting the following:
"The Partnership shall have a Valuation Committee
which shall consist of at least three (3) but not
more than five (5) members, none of whom shall be an
officer, director, member or employee of the General
Partner, the Management Company or any affiliate
thereof, and none of whom shall be related to any
Principal."
3. Section 8(a) of the Partnership Agreement is amended by adding
the following text at the end thereof:
"Each notice for an Additional Capital Contribution
from the General Partner shall include a general
description of the purposes and uses for which the
Additional Capital Contribution is being called
including, for example, the payment of Partnership
expenses (including the Management Fee) and the
purchase of Portfolio Company Securities; provided
that the General Partner shall not be required to
identify the purposes and uses of 100% of any
Additional Capital Contribution or be required to
identify the name of any particular Portfolio Company
or proposed Portfolio Company. After the fourth
anniversary of the last admittance of any additional
Limited Partners pursuant to Section 8(c) hereof, the
General Partner shall not make any further calls for
Additional Capital Contributions for the purpose of
investing in the Securities of any entity that was
not a Portfolio Company (including as a Portfolio
Company for such purpose, any predecessor of such
entity) on such anniversary date, except with the
approval of the Valuation Committee. After the fifth
anniversary of the last admittance of any additional
Limited Partners pursuant to Section 8(c) hereof, the
General Partner shall not make any further calls for
Additional Capital Contributions for the purpose of
investing in the Securities of any entity that was a
Portfolio Company (including as a Portfolio Company
for such purpose, any predecessor of such entity) on
such anniversary date, except with the approval of
the Valuation Committee."
4. Section 11(b) of the Partnership Agreement is amended by
adding the following subsection (8) at the end thereof:
"(8) An amount equal to 50% of all distributions made
to the General Partner, other than (A) Tax
Distributions plus (B) distributions the General
Partner would have received if it had made its
Capital Contributions as a Limited Partner and did
not hold an interest as a General Partner (excluding
any Tax Distributions on account thereof which are
included in (A)), shall be used by the General
Partner immediately upon distribution thereof to
prepay any promissory notes contributed by the
General Partner to the Partnership."
5. Section 16 of the Partnership Agreement is amended by adding
the following text at the end thereof:
"No Principal will voluntarily assign, pledge,
mortgage, hypothecate, sell or otherwise dispose of
or encumber (a "Disposition") all or any part of his
interest in the allocations made to the General
Partner of "20% of such additional Net
Realized Gain" pursuant to Section 10(b)(1)(A)(iv) (the "20%
carried interest"), except for (a) Dispositions to members of
his immediate family or trusts for the benefit of such general
partner or members of his immediate family (and, in the case
of any Dispositions to such family members or such trusts, the
transferee shall thereafter be subject, as to further
transfers, to the same restrictions on transfer as were
applicable to the transferor), (b) Dispositions to other
persons who are associated with or employed by the General
Partner, the Principals or the Management Company, and (c)
Dispositions to another Principal; provided, that, the
Dispositions of all Principals pursuant to clauses (a) and (b)
shall not exceed in the aggregate 45% of their aggregate
interests in the 20% carried interest."
6. Section 19(c) of the Partnership Agreement is amended by
adding the following text at the end thereof:
"The General Partner shall transmit to each Partner
within sixty (60) days after the close of each fiscal
year, a report describing any fees and other
remuneration which, pursuant to Section 4(b) of the
Management Agreement, reduced the Management Fee
payable in such fiscal year. Such description will be
organized by the type of such fees and other
remuneration (e.g., director's fees and consulting
fees) and the dollar amount attributable to each such
category."
7. Pursuant to Section 7 of the Management Agreement, the Limited
Partners hereby consent to Amendment No. 1 to the Management
Agreement dated the date hereof, which amends Section 4(b) of
the Management Agreement by adding the following text at the
end thereof:
"If in any year such reductions exceed the Management
Fee otherwise payable, the excess amount of such
reductions shall be carried forward on a year-by-year
basis."
IN WITNESS WHEREOF, the undersigned have executed this Amendment No. 1
as of the day and year first above written.
GENERAL PARTNER
CAHILL, WARNOCK STRATEGIC PARTNERS, L.P.
By: /s/ Edward L. Cahill
---------------------------------------
Edward L. Cahill, General Partner
By: /s/ David L. Warnock
--------------------------------------
David L. Warnock, General Partner
AMENDMENT NO. 1 TO
LIMITED PARTNERSHIP AGREEMENT
OF
CAHILL, WARNOCK STRATEGIC PARTNERS FUND, L.P.
LIMITED PARTNER SIGNATURE PAGE
The undersigned Limited Partner hereby executes Amendment No. 1 to
Limited Partnership Agreement of Cahill, Warnock Strategic Partners Fund, L.P.
and hereby authorizes this signature page to be attached to a counterpart of
such document executed by the General Partner of Cahill, Warnock Strategic
Partners Fund, L.P.
Please type or print exact
name of Limited Partner *
____________________________________________
Please sign here By__________________________________________
Please type or print exact
name of signer ____________________________________________
Please type or print
title of signer Title_______________________________________
* Signature pages of the limited partners will be provided upon request.
Exhibit 3
STOCKHOLDERS' AGREEMENT
AGREEMENT made this 6th day of November , 1996, by and among (i)
Occupational Health + Rehabilitation Inc, a Delaware corporation (the
"Company"), (ii) the individuals and entities listed under the heading "Holders"
on Schedule I attached hereto, and (iii) those persons whose names are set forth
under the heading "Investors" on Schedule I hereto (the "Investors").
WHEREAS, the Investors are acquiring up to an aggregate of 1,666,667
shares of the Series A Preferred Stock, $.001 par value per share, of the
Company (the "Series A Preferred Stock") pursuant to a certain Series A
Convertible Preferred Stock Purchase Agreement dated as of November 6, 1996, by
and among the Investors and the Company (the "Purchase Agreement");
NOW, THEREFORE, in consideration of the mutual covenants herein
contained and other good and valuable consideration, the receipt and sufficiency
of which is hereby acknowledged, the Company, the Holders and the Investors
agree as follows:
1. Election of Directors.
Each of the parties hereto agrees to vote all of the Stock (as
hereinafter defined) of the Company now owned or hereafter acquired by such
party (and attend, in person or by proxy, all meetings of stockholders called
for the purpose of electing directors), and the Company agrees to take all
actions (including, but not limited to the nomination of specified persons) to
cause and maintain the election to the Board of Directors of the Company, to the
extent permitted pursuant to the Company's Restated Certificate of
Incorporation, as amended, the following:
(a) the Chief Executive Officer of the Company, who shall
initially be John C. Garbarino;
(b) a person designated by those persons designated as Telor
Principal Stockholders on Schedule II hereto by a majority in interest of Stock
held by them, who shall initially be Angus M. Duthie;
(c) a person designated by those persons designated as OH+R
Principal Stockholders on Schedule II hereto by a majority in interest of Stock
held by them, who shall initially be Kevin J. Dougherty;
(d) two persons designated by Cahill, Warnock Strategic
Partners Fund, L.P., one of whom shall initially be Edward L. Cahill and the
other of whom shall be designated at a later date, and
(e) two persons who shall be unaffiliated with the management
of the Company and mutually agreeable to all of the other directors.
Each of the parties further covenants and agrees to vote, to
the extent possible, all shares of Stock of the Company now owned or hereafter
acquired by such party so that the Company's Board of Directors shall consist of
no more than seven (7) members. For the purposes of this Agreement, "Stock"
shall mean and include all Series A Preferred Stock and all shares of Common
Stock, and all other
securities of the Company which may be exchangeable for or issued in exchange
for or in respect of shares of Common Stock (whether by way of stock split,
stock dividend, combination, reclassification, reorganization or any other
means).
In the absence of any designation from the persons or groups
so designating directors as specified above, the director previously designated
by them and then serving shall be reelected if still eligible to serve as
provided herein.
No party hereto shall vote to remove any member of the Board
of Directors designated in accordance with the aforesaid procedure unless the
persons or groups so designating directors as specified above so vote, and, if
such persons or groups so vote then the non-designating party or parties shall
likewise so vote.
Any vacancy on the Board of Directors created by the
resignation, removal, incapacity or death of any person designated under this
Section 1 shall be filled by another person designated in a manner so as to
preserve the constituency of the Board as provided above.
If any party to this Agreement shall fail to vote such party's
Stock as provided in this Agreement, without further action by such party, the
President of the Company shall be, and hereby is, irrevocably constituted the
attorney-in-fact and proxy of such party for the purpose of voting the shares of
such Stock and shall vote the same in accordance with the terms of this
Agreement and is hereby authorized to revoke any proxy providing for any other
vote of such shares with respect to the election of directors.
2. Termination. This Agreement, and the respective rights and
obligations of the parties hereto, shall terminate upon the earliest to occur of
the following: (i) the expiration of ten years from the date first written
above; (ii) a Mandatory Conversion pursuant to the terms of Paragraph 6O of the
Company's Certificate of Designations; or (iii) the sale of the Company, whether
by merger, sale, or transfer of more than eighty percent (80%) of its capital
stock, or sale of substantially all of its assets.
3. Notices. All notices, requests, demands and other communications
provided for hereunder shall be in writing (including electronic communication)
and delivered personally, or by overnight courier, or by facsimile or other
electronic means or sent by certified or registered United States mail, postage
prepaid, return receipt requested and addressed as follows:
If to any Investor: at such Investor's address for notice as set forth
in the register maintained by the Company, or, as to each of the foregoing, at
the addresses set forth on Schedule I hereto or at such other address as shall
be designated by such Person in a written notice to the other parties complying
as to delivery with the terms of this Section, with a copy to Leslie E. Davis,
Esq., Testa, Hurwitz & Thibeault, LLP, High Street Tower, 125 High Street,
Boston, Massachusetts 02110.
If to the Company: at 175 Derby Street, Suite 36, Hingham,
Massachusetts 02043, or at such other address as shall be designated by the
Company in a written notice to the other parties complying as to delivery with
the terms of this Section, with a copy to Donna L. Brooks, Esq., Shipman &
Goodwin LLP, One American Row, Hartford, CT 06103.
All such notices, requests, demands and other communications shall be
effective three days after deposited in the mails or upon receipt when delivered
electronically, by facsimile, by hand or by overnight courier, respectively,
addressed as aforesaid, unless otherwise provided herein.
4. Specific Performance. The rights of the parties under this Agreement
are unique and, accordingly, the parties shall, in addition to such other
remedies as may be available to any of them at law or in equity, have the right
to enforce their rights hereunder by actions for specific performance to the
extent permitted by law.
5. Entire Agreement. This Agreement constitutes the entire agreement
among the parties with respect to the subject matter hereof and supersedes all
prior agreements and understandings between them or any of them as to such
subject matter, including, without limitation, that certain Voting Agreement of
the Company dated as of June 6, 1996.
6. Waivers and Further Agreements. Any of the provisions of this
Agreement may be waived with the consent of the Investors holding at a majority
in interest of the issued and outstanding shares of Series A Preferred Stock
(including shares of Common Stock into which any such shares may have been
converted) then held or deemed to be held by all Investors by an instrument in
writing. Any waiver by any party of a breach of any provision of this Agreement
shall not operate or be construed as a waiver of any subsequent breach of that
provision or of any other provision hereof. Each of the parties hereto agrees to
execute all such further instruments and documents and to take all such further
action as any other party may reasonably require in order to effectuate the
terms and purposes of this Agreement. Notwithstanding the foregoing, no waiver
approved in accordance herewith shall be effective if and to the extent that
such waiver grants to any one or more Investors any rights more favorable than
any rights granted to all other Investors or otherwise treats any one or more
Investors differently than all other Investors.
7. Amendments. Except as otherwise expressly provided herein, this
Agreement may not be amended except by an instrument in writing executed by (i)
the Company, (ii) Investors holding a majority in interest of the issued and
outstanding shares of Series A Preferred Stock (including shares of Common Stock
into which any such shares may have been converted), and (iii) Holders holding a
majority of the shares of Common Stock subject to this Agreement.
Notwithstanding the foregoing, no such amendment shall be effective if and to
the extent that such amendment creates any additional affirmative obligations to
be complied with by any or all of the Investors.
8. Assignment; Successors and Assigns. This Agreement shall be binding
upon and shall inure to the benefit of the parties hereto and their respective
heirs, executors, legal representatives, successors and permitted transferees.
9. Severability. In case any one or more of the provisions contained in
this Agreement shall for any reason be held to be invalid, illegal or
unenforceable in any respect, such invalidity, illegality or unenforceability
shall not affect any other provision of this Agreement, and such invalid,
illegal and unenforceable provision shall be reformed and construed so that it
will be valid, legal, and enforceable to the maximum extent permitted by law.
10. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
11. Section Headings. The headings contained in this Agreement are for
reference purposes only and shall not in any way affect the meaning or
interpretation of this Agreement.
12. Governing Law. This Agreement shall be construed and enforced in
accordance with and governed by the General Corporation Law of the State of
Delaware as to matters within the scope thereof, and as to all other matters
shall be governed by and construed in accordance with the internal laws of the
Commonwealth of Massachusetts.
13. Legend. The certificates representing the shares of Series A
Preferred Stock shall bear a legend substantially in the following form:
"The shares represented by this certificate are subject to the terms
and conditions of a Stockholders' Agreement dated as of November 6, 1996, a copy
of which will be furnished to any interested party upon written request without
charge."
IN WITNESS WHEREOF, the parties hereto have executed this Stockholders'
Agreement as a sealed instrument as of the day and date first above written.
INVESTORS: THE COMPANY:
CAHILL, WARNOCK STRATEGIC OCCUPATIONAL HEALTH +
PARTNERS FUND, L.P. REHABILITATION INC
By: Cahill, Warnock Strategic
Partners, L.P. By: /s/ John C. Garbarino
---------------------------------------
By: /s/ Edward L. Cahill
--------------------------
Title: General Partner
--------------------------
HOLDERS:
STRATEGIC ASSOCIATES, L.P. PRINCE VENTURE PARTNERS III
LIMITED PARTNERSHIP
By: Cahill, Warnock &
Company, LLC By: Prince Ventures, L.P., General Partner
By: /s/ Edward L. Cahill
--------------------------
Title: Managing Member
--------------------------
By: /s/Angus M. Duthie
---------------------------------
AXA U.S. GROWTH FUND, LLC *THE VENTURE CAPITAL FUND OF
NEW ENGLAND III, L.P.
By: /s/ Thomas G. McKinley By: FH & Co. III, L.P., Its General Partner
--------------------------
Title: Managing Member
--------------------------
By: /s/ Kevin J. Dougherty
---------------------------------
U.S. GROWTH FUND PARTNERS,
C.V.
*BANCBOSTON VENTURES, INC.
By: /s/ Thomas G. McKinley
--------------------------
Title: General Partner
--------------------------
By: /s/ Marcia Bates
---------------------------------
DOUBLE BLACK DIAMOND II, LLC
/s/ John C. Garbarino
------------------------------------
John C. Garbarino
By: /s/Thomas G. McKinley
--------------------------
Title: Managing Member
--------------------------
/s/ Lynne M. Rosen
------------------------------------
Lynne M. Rosen
ALMANORI LIMITED
*VENROCK ASSOCIATES
By: /s/ Thomas G. McKinley
--------------------------
Title: Attorney-in-Fact
--------------------------
By: /s/ Anthony Evnin
------------------------------------
*VENROCK ASSOCIATES II, L.P.
By: /s/ Anthony Evnin
------------------------------------
*ASSET MANAGEMENT ASSOCIATES,
1989, L.P.
By: AMC Partners 89, L.P., General Partner
By: /s/ Craig C. Taylor
------------------------------------
*In their capacities as Holders and Investors hereunder.
SCHEDULE I
OCCUPATIONAL HEALTH + REHABILITATION INC
HOLDERS
Prince Venture Partners III Limited Partnership
The Venture Capital Fund of New England III, L.P.
BancBoston Ventures, Inc.
John C. Garbarino
Lynne M. Rosen
Venrock Associates
Venrock Associates II, L.P.
Asset Management Associates, 1989, L.P.
INVESTORS
Cahill, Warnock Strategic Partners Fund, L.P.
10 North Calvert Street
Suite 735
Baltimore, Maryland 21202
Attn: Mr. Edward L. Cahill
Strategic Associates, L.P.
10 North Calvert Street
Suite 735
Baltimore, Maryland 21202
Attn: Mr. Edward L. Cahill
Axa U.S. Growth Fund, LLC
c/o Partech International
50 California Street
Suite 3200
San Francisco, CA 94111
Attn: Mr. Thomas G. McKinley
U.S. Growth Fund Partners, C.V.
c/o Partech International
50 California Street
Suite 3200
San Francisco, CA 94111
Attn: Mr. Thomas G. McKinley
Double Black Diamond II, LLC
c/o Partech International
50 California Street
Suite 3200
San Francisco, CA 94111
Attn: Mr. Thomas G. McKinley
Almanori Limited
c/o Partech International
50 California Street
Suite 3200
San Francisco, CA 94111
Attn: Mr. Thomas G. McKinley
Asset Management Associates, 1989, L.P.
2275 East Bayshore Road
Palo Alto, CA 94303
Attn: Mr. Craig C. Taylor
Venrock Associates
755 Page Mill Road, Suite 8230
Palo Alto, CA 94304
Attn: Mr. Patrick F. Latterell
Venrock Associates II, L.P.
755 Page Mill Road, Suite 8230
Palo Alto, CA 94304
Attn: Mr. Patrick F. Latterell
The Venture Capital Fund of New England, III, L.P.
160 Federal Street, 23rd Floor
Boston, MA 02110
Attn: Mr. Kevin J. Dougherty
BancBoston Ventures, Inc.
100 Federal Street
Boston, MA 02110
Attn: Ms. Marcia T. Bates
SCHEDULE II
OCCUPATIONAL HEALTH + REHABILITATION INC
OH+R Principal Stockholders
Prince Venture Partners III Limited Partnership
The Venture Capital Fund of New England III, L.P.
BancBoston Ventures, Inc.
Telor Principal Stockholders
Prince Venture Partners III, Limited Partnership
Venrock Associates
Venrock Associates II, L.P.
Asset Management Associates, 1989, L.P.
Exhibit 4
Occupational Health + Rehabilitation Inc
175 Derby Street, Suite 36
Hingham, Massachusetts 02043-5048
As of November 6, 1996
TO: The Persons listed on Schedule I hereto
Re: Series A Convertible Preferred Stock
------------------------------------
Ladies and Gentlemen:
Occupational Health + Rehabilitation Inc, a Delaware corporation (the
"Company"), agrees with each of you as follows:
ARTICLE I
PURCHASE, SALE AND TERMS OF SHARES
1.01 The Initial Preferred Shares. The Company has authorized the
issuance and sale of 1,416,667 shares (the "Initial Preferred Shares") of its
previously authorized but unissued shares of Series A Convertible Preferred
Stock, $.001 par value (the "Series A Preferred Stock") at a purchase price of
$6.00 per share to the persons (collectively, the "Purchasers" and,
individually, a "Purchaser") and in the respective amounts set forth in Schedule
I hereto. The designation, rights, preferences and other terms and conditions
relating to the Series A Preferred Stock shall be as set forth on Exhibit 1.01A
hereto (the "Certificate of Designations").
1.02 The Additional Preferred Shares. Subject to the terms and
conditions hereof, the Company has authorized the issuance at an Additional
Closing (as hereinafter defined) of up to an additional 250,000 shares of Series
A Preferred Stock (said additional 250,000 shares of Series A Preferred Stock
being sometimes collectively referred to in this Agreement as the "Additional
Preferred Shares;" and the Initial Preferred Shares and the Additional Preferred
Shares being sometimes collectively referred to as the "Purchased Shares").
1.03 The Converted Shares. The Company has authorized and has reserved
and covenants to continue to reserve, free of preemptive rights and other
preferential rights, a sufficient number of its previously authorized but
unissued shares of Common Stock to satisfy the rights of conversion of the
holders of the Purchased Shares. Any shares of Common Stock issuable upon
conversion of the Purchased Shares, and such shares when issued, are herein
referred to as the "Converted Shares."
1.04 The Shares. The Purchased Shares and the Converted Shares are
sometimes collectively referred to herein as the "Shares."
1.05 Purchase Price and Closings.
(a) The Company agrees to issue and sell to the Purchasers
and, subject to and in reliance upon the representations, warranties, covenants,
terms and conditions of this Agreement, the Purchasers, severally but not
jointly, agree to purchase that number of the Initial Preferred Shares set forth
opposite their respective names in Schedule I. The aggregate purchase price of
the Initial Preferred Shares being purchased by each Purchaser is set forth
opposite such Purchaser's name in Schedule I. The initial purchase and sale
shall take place at a closing (the "Initial Closing") to be held at the offices
of Messrs. Testa, Hurwitz & Thibeault, LLP, High Street Tower, 125 High Street,
Boston, Massachusetts 02110, on November 6, 1996, at 10:00 A.M., or at such
other location, on such other date and at such time as may be mutually agreed
upon. At the Initial Closing, the Company will issue and deliver certificates
evidencing the Initial Preferred Shares to be sold at such Initial Closing to
each of the Purchasers (or its nominee) against payment of the full purchase
price therefor by wire transfer or check payable to the order of the Company.
(b) The Additional Closing. Provided that the Company is not
then in default under this Agreement and subject to the provisions of Section
2.04, the Company may, with the written consent of a majority in interest of the
Purchasers, upon not less than 10 days' notice given prior to May 6, 1997, offer
to the Purchasers the option to purchase, and each Purchaser may, at its option,
so purchase, subject to and in reliance upon the representations, warranties,
terms and conditions of this Agreement and upon the terms and conditions
hereinafter set forth, that number of Additional Preferred Shares set forth
opposite the name of such Purchaser on Schedule I attached hereto, under the
heading "Additional Preferred Shares." Any Additional Preferred Shares not
subscribed for by the Purchasers pursuant to the previous sentence (the
"Shortfall Shares") may be purchased by the Purchasers that did subscribe for
Additional Preferred Shares pursuant to the previous sentence (the
"Participating Purchasers"). Each Participating Purchaser shall have the right
to purchase up to that number of Shortfall Shares as shall be determined by
multiplying the total number of Shortfall Shares by a fraction the numerator of
which shall be the sum of the Initial Preferred Shares and the Additional
Preferred Shares subscribed for by such Participating Purchaser, and the
denominator of which shall be the total number of Initial Preferred Shares and
Additional Preferred Shares, in each case subscribed for by all such
Participating Purchasers. Any Shortfall Shares not so subscribed for pursuant to
this Section 1.05(b) shall be subscribed for by Cahill, Warnock Strategic
Partners Fund, L.P. and/or Strategic Associates, L.P. in proportions to be
determined in the sole discretion of Cahill, Warnock & Company, LLC. In the
event that the Shortfall Shares to be subscribed for by a Participating
Purchaser is determined to include fractional shares, such Participating
Purchaser shall be permitted to purchase the number of shares determined by
rounding such Participating Purchaser's allocated number of Shortfall Shares to
the nearest whole number. The per share purchase price for each such Additional
Preferred Share (as constituted on the date hereof) to be purchased pursuant to
this Agreement shall be $6.00. Such purchase and sale of Additional Preferred
Shares, if any, shall take place at a closing (the "Additional Closing") at the
offices of Testa, Hurwitz & Thibeault, LLP, High Street Tower, 125 High Street,
Boston, Massachusetts 02110, on such date or dates as the Company and the
Purchasers may agree, but in all events on or prior to May 6, 1997. At the
Additional Closing the Company will issue and deliver the certificates
evidencing the Additional Preferred Shares sold at such Additional Closing to
each of the Purchasers (or its nominee) against payment of the full purchase
price therefor by wire transfer or check payable to the order of the Company.
1.06 Use of Proceeds. The Company shall use the proceeds from the sale
of the Purchased Shares for working capital and general corporate purposes.
ARTICLE II
CONDITIONS TO PURCHASERS' OBLIGATION
The obligation of each Purchaser to purchase and pay for the Purchased
Shares to be purchased by it at the Initial Closing is subject to the following
conditions:
2.01 Representations and Warranties. Each of the representations and
warranties of the Company set forth in Article III hereof shall be true and
correct on the date of the Initial Closing.
2.02 Documentation at Initial Closing. The Purchasers shall have
received prior to or at the Initial Closing all of the following documents or
instruments, or evidence of completion thereof, each in form and substance
satisfactory to the Purchasers and their special counsel:
(a) A copy of the Certificate of Incorporation of the Company,
certified by the Secretary of State of the State of Delaware together with a
certified copy of the Certificate of Designations, a copy of the resolutions of
the Board of Directors and, if required, the stockholders of the Company
evidencing the adoption of the Company's Certificate of Designations, the
approval of this Agreement, the issuance of the Purchased Shares and the other
matters contemplated hereby, and a copy of the By-laws of the Company, all of
which shall have been certified by the Secretary of the Company to be true,
complete and correct in every particular, and certified copies of all documents
evidencing other necessary corporate or other action and governmental approvals,
if any, with respect to this Agreement and the Shares.
(b) The opinion of Shipman & Goodwin LLP, counsel to the
Company, substantially to the effect that:
(i) The Company and its corporate subsidiary are
corporations duly incorporated, validly existing and in good
standing under the laws of their respective jurisdictions of
incorporation. The Company's limited liability company subsidiary
is a limited liability company duly organized, validly existing
and in good standing under the laws of its jurisdiction of
organization and is not licensed or qualified as a foreign limited
liability company in any jurisdiction. To the knowledge of such
counsel, Schedule III to this Agreement contains a complete list
of all subsidiaries of the Company and the Company's equity
interest therein. The Company is duly licensed or qualified to
transact business as a foreign corporation and is in good standing
in Massachusetts, Rhode Island, Vermont, Maine, New Jersey, New
York, Pennsylvania and each other jurisdiction in which it owns or
leases real property. Each of the Company and its subsidiaries has
the corporate power or entity power, as the case may be, and
authority to own and hold its properties and to carry on its
business as currently conducted. The Company has the corporate
power and authority to execute, deliver and perform this
Agreement, the Registration Rights Agreement and the Stockholders'
Agreement, to issue, sell and deliver the Purchased Shares and,
upon conversion thereof, to issue and deliver the Converted
Shares.
(ii) This Agreement, the Registration Rights
Agreement and the Stockholders' Agreement have been duly
authorized, executed and delivered by the Company and constitute
the legal, valid and binding obligations of the Company,
enforceable in accordance with their respective terms (subject, as
to enforcement of remedies, to the discretion of courts in
awarding equitable relief and to applicable
bankruptcy, reorganization, insolvency, moratorium and similar
laws affecting the rights of creditors generally), except that
such counsel need not express any opinion as to the validity or
enforceability of the indemnification and contribution provisions
of the Registration Rights Agreement.
(iii) The execution and delivery by the Company of
this Agreement, the Registration Rights Agreement and the
Stockholders' Agreement, the performance by the Company of its
obligations hereunder and thereunder, the issuance, sale and
delivery of the Purchased Shares and, upon conversion thereof, the
issuance and delivery of the Converted Shares, will not violate
any provision of law, the Charter or By-laws, as amended, of the
Company, any order of any court or other agency of government or
any indenture, agreement or other instrument known to such counsel
to which the Company, its subsidiaries or any of their respective
properties or assets is bound, or conflict with, result in a
breach of or constitute (with due notice or lapse of time or both)
a default under any such indenture, agreement or other instrument,
or result in the creation or imposition of any lien, charge,
restriction, claim or encumbrance of any nature whatsoever upon
any of the properties or assets of the Company or its
subsidiaries. In rendering the foregoing opinion, such counsel may
assume full disclosure to the Purchasers of all material facts
and, with respect to performance by the Company of its obligations
under the Registration Rights Agreement, may assume compliance by
the Company at such time with the registration requirements of the
Securities Act and with applicable state securities laws and may
disclaim any opinion as to the validity or enforceability of the
indemnification and contribution provisions of the Registration
Rights Agreement.
(iv) The authorized capital stock of the Company
consists of (i) 5,000,000 shares of Preferred Stock, of which
1,666,667 shares have been designated Series A Convertible
Preferred Stock, and (ii) 10,000,000 shares of Common Stock.
Immediately prior to the Closing, 1,471,480 shares of Common Stock
will be duly authorized, validly issued, fully paid and
nonassessable with no personal liability attaching to the
ownership thereof and no shares of Preferred Stock will have been
issued. The designations, powers, preferences, rights,
qualifications, limitations and restrictions in respect of each
class or series of authorized capital stock of the Company are as
set forth in the Charter, and all such designations, powers,
preferences, rights, qualifications, limitations and restrictions
are valid, binding and enforceable and in accordance with all
applicable laws (subject, as to enforcement, to the discretion of
courts in awarding equitable relief and to applicable bankruptcy,
reorganization, insolvency, moratorium and similar laws affecting
the rights of creditors generally). Except as set forth in
Schedule IV, to the knowledge of such counsel, immediately prior
to the Closing no subscription, warrant, option, convertible
security, or other right (contingent or other) to purchase or
acquire equity securities of the Company will be authorized or
outstanding and there will be no commitment by the Company to
issue shares, subscriptions, warrants, options, convertible
securities, or other such rights or to distribute to holders of
any of its equity securities any evidence of indebtedness or
asset. Except as set forth in Schedule IV or as provided for in
the Charter, to the knowledge of such counsel the Company has no
obligation (contingent or other) to purchase, redeem or otherwise
acquire any of its equity securities or any interest therein or to
pay any dividend or make any other distribution in respect
thereof.
(v) The issuance, sale and delivery of the Purchased
Shares and the issuance and delivery of the Converted Shares upon
conversion of the Purchased Shares have been
duly authorized by all required corporate action. Upon payment
therefore in accordance with this Agreement, the Purchased Shares
will have been validly issued, are fully paid and nonassessable
with no personal liability attaching to the ownership thereof and,
to the knowledge of such counsel, are free and clear of all liens,
charges, restrictions, claims and encumbrances imposed by or
through the Company except as set forth in the Registration Rights
Agreement and the Stockholders' Agreement and as imposed by
applicable federal and state securities laws; and the Converted
Shares have been duly reserved for issuance upon conversion of the
Purchased Shares and, when so issued, will be validly issued,
fully paid and nonassessable with no personal liability attaching
to the ownership thereof and, to the knowledge of such counsel,
will be free and clear of all liens, charges, restrictions, claims
and encumbrances imposed by or through the Company except as set
forth in the Registration Rights Agreement and the Stockholders'
Agreement and as imposed by applicable federal and state
securities laws. Neither the issuance, sale or delivery of the
Purchased Shares nor the issuance or delivery of the Converted
Shares is subject to any preemptive right of stockholders of the
Company arising under law or the Charter or By-laws of the
Company, each as amended, or, to the knowledge of such counsel, to
any contractual right of first refusal or other right in favor of
any person.
(vi) Except as described in Schedule II, to the
knowledge of such counsel there is no (A) action, suit, claim,
proceeding or investigation pending or threatened against or
affecting the Company or any of its subsidiaries, at law or in
equity, or before or by any federal, state, municipal or other
governmental department, commission, board, bureau, agency or
instrumentality, domestic or foreign, (B) arbitration proceeding
relating to the Company or any of its subsidiaries pending under
collective bargaining agreements or (C) governmental inquiry
pending or threatened against or affecting the Company or any of
its subsidiaries (including, without limitation, any inquiry as to
the qualification of the Company or any of its subsidiaries to
hold or receive any license or permit). To the knowledge of such
counsel, neither the Company nor any of its subsidiaries is in
default with respect to any order, writ, injunction or decree
known to such counsel of any court or of any federal, state,
municipal or other governmental department, commission, board,
bureau, agency or instrumentality, domestic or foreign.
(vii) Assuming the accuracy of the representations
and warranties of the Purchasers set forth in Article III, no
registration or filing with, and no consent or approval of, or
other action by any federal, state or other governmental agency or
instrumentality is or will be necessary for the valid execution,
delivery and performance by the Company of this Agreement, the
Registration Rights Agreement and the Stockholders' Agreement, the
issuance, sale and delivery of the Purchased Shares or, upon
conversion thereof, the issuance and delivery of the Converted
Shares, other than filings pursuant to state securities laws (all
of which filings, other than those which are required to be made
after the Closing, have been made by the Company). In rendering
the foregoing opinion with respect to performance by the Company
of its obligations under the Registration Rights Agreement, such
counsel may assume compliance by the Company at such time with the
registration requirements of the Securities Act and with
applicable state securities laws and may disclaim any opinion as
to the validity or enforceability of the indemnification and
contribution provisions of the Registration Rights Agreement.
(c) A certificate of the Secretary or an Assistant Secretary
of the Company which shall certify the names of the officers of the Company
authorized to sign this Agreement, the certificates
for the Purchased Shares and the other documents, instruments or certificates to
be delivered pursuant to this Agreement by the Company or any of its officers,
together with the true signatures of such officers. The Purchasers may
conclusively rely on such certificate until they shall receive a further
certificate of the Secretary or an Assistant Secretary of the Company cancelling
or amending the prior certificate and submitting the signatures of the officers
named in such further certificate.
(d) A certificate of the President of the Company stating that
the representations and warranties of the Company contained in Article III
hereof and otherwise made by the Company in writing in connection with the
transactions contemplated hereby are true and correct and that all conditions
required to be performed prior to or at the Initial Closing have been performed
as of the Initial Closing.
(e) The Restated Certificate of Incorporation of the Company
(the "Charter") shall provide for the designation of the rights and preferences
of the Series A Preferred Stock in the form set forth in Exhibit 1.01A attached
hereto.
(f) A Stockholders' Agreement in the form set forth in Exhibit
2.02F (the "Stockholders' Agreement") shall have been executed by the parties
named therein.
(g) Certificates of Good Standing for the Company from the
Secretaries of State of Delaware, Massachusetts Rhode Island, Vermont, Maine,
New Jersey, New York, Pennsylvania and all other jurisdictions in which the
Company is qualified to do business as a foreign corporation shall have been
provided to the Purchasers and their special counsel.
(h) Payment for the costs, expenses, taxes and filing fees
identified in Section 8.04.
(i) The Board of Directors of the Company following the
Initial Closing shall consist of seven (7) members, of which the current members
shall be: John C. Garbarino, Angus M. Duthie, Kevin J. Dougherty, John K.
Herdklotz and Edward L. Cahill, with the remaining members to be designated in
accordance with the Stockholders' Agreement.
(j) The Company and the Purchasers shall have entered into a
Registration Rights Agreement in the form set forth in Exhibit 2.02J (the
"Registration Rights Agreement").
(k) The Company's By-laws shall be in form and substance
reasonably satisfactory to the Purchasers and their special counsel.
(l) Participation of all Purchasers specified on Schedule I
hereto in the transactions.
2.03 Consents, Waivers, Etc. Prior to the Initial Closing, the Company
shall have obtained all consents or waivers, if any, necessary to execute and
deliver this Agreement, issue the Initial Preferred Shares and to carry out the
transactions contemplated hereby and thereby, and all such consents and waivers
shall be in full force and effect. All corporate and other action and
governmental filings necessary to effectuate the terms of this Agreement, the
Initial Preferred Shares and other agreements and instruments executed and
delivered by the Company in connection herewith shall have been made or taken,
except for any post-sale filing that may be required under federal or state
securities laws. In addition to the documents set forth above, the Company shall
have provided to the Purchasers any other information or copies of documents
that they may reasonably request.
2.04 Conditions Precedent to Additional Closings. The respective
several obligations of the Purchasers to purchase and pay for the Additional
Preferred Shares to be purchased at the Additional Closing are subject to (i)
the written consent of a majority in interest of the Purchasers, (ii) the
continuing performance in all material respects of all agreements by the Company
contained in this Agreement and the Stockholders' Agreement, and (iii) the
delivery to each Purchaser of a certificate, dated the date of such Additional
Closing, signed by the President of the Company, to the effect that (A) other
than as disclosed in a schedule, which shall be reasonably satisfactory to a
majority in interest of the Purchasers, attached to such certificate or as
contemplated by this Agreement, the representations and warranties of the
Company contained in Article III hereof were true and correct when made and are
true and correct in all material respects on and as of the date of such
Additional Closing (it being understood that, in the latter case, any reference
to the Closing contained in said Article III shall be deemed to be a reference
to such Additional Closing), (B) the Company has performed and complied in all
material respects with all covenants, agreements and conditions contained in
this Agreement, the Stockholders' Agreement and the Registration Rights
Agreement required to be performed or complied with by it on or prior to the
date of the Additional Closing, and (C) since the date of the Initial Closing,
there has not occurred (or is likely to occur) any material adverse event with
respect to the Company or its operations.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company, together with its subsidiaries, represents and warrants to
the Purchasers that, except as set forth in the Disclosure Schedule attached as
Schedule II (which Disclosure Schedule makes explicit reference to the
particular representation or warranty as to which exception is taken, which in
each case shall constitute the sole representation and warranty as to which such
exception shall apply):
3.01 Organization, Qualifications and Corporate Power.
(a) The Company is a corporation duly incorporated, validly
existing and in good standing under the laws of the State of Delaware and is
duly licensed or qualified to transact business as a foreign corporation and is
in good standing in each jurisdiction in which the nature of the business
transacted by it or the character of the properties owned or leased by it
requires such licensing or qualification and where the failure to be so
qualified would have a material adverse effect on the Company. The Company has
the corporate power and authority to own and hold its properties and to carry on
its business as now conducted and as proposed to be conducted, to execute,
deliver and perform this Agreement, the Registration Rights Agreement and the
Stockholders' Agreement to issue, sell and deliver the Preferred Shares and to
issue and deliver the Converted Shares.
(b) The attached Schedule III contains a list of all
subsidiaries of the Company and its equity interest therein. Except for such
subsidiaries, the Company does not (i) own of record or beneficially, directly
or indirectly, (A) any shares of capital stock or securities convertible into
capital stock of any other corporation or (B) any participating interest in any
partnership, joint venture or other non-corporate business enterprise or (ii)
control, directly or indirectly, any other entity. Each of the Company's
corporate subsidiary and limited liability company subsidiary is a corporation
or limited liability company duly incorporated or organized, as the case may be,
validly existing and in good standing under the laws of its respective
jurisdiction of incorporation or organization, as the case may be, and is duly
licensed or qualified to transact business as a foreign corporation or limited
liability
company, as the case may be, and is in good standing in each jurisdiction in
which the nature of the business transacted by it or the character of the
properties owned or leased by it requires such licensing or qualification and
where the failure to be so qualified would have a material adverse effect on the
Company. Each of the subsidiaries referenced above has the corporate power or
entity power, as the case may be, and authority to own and hold its properties
and to carry on its business as now conducted and as proposed to be conducted.
All of the outstanding shares of capital stock or equity interests, as the case
may be, of each of the subsidiaries are owned beneficially and of record by the
Company, one of its other subsidiaries, or any combination of the Company and/or
one or more of its other subsidiaries, in each case free and clear of any liens,
charges, restrictions, claims or encumbrances of any nature whatsoever; and
there are no outstanding subscriptions, warrants, options, convertible
securities, or other rights (contingent or other) pursuant to which any of the
subsidiaries is or may become obligated to issue any shares of its capital stock
or equity interests, as the case may be, to any person other than the Company or
one of the other subsidiaries.
3.02 Authorization of Agreements, Etc.
(a) The execution and delivery by the Company of this
Agreement, the Registration Rights Agreement and the Stockholders' Agreement,
the performance by the Company of its obligations hereunder and thereunder, the
issuance, sale and delivery of the Purchased Shares and the issuance and
delivery of the Converted Shares have been duly authorized by all requisite
corporate action and will not violate any provision of law, any order of any
court or other agency of government, the Charter or the By-laws of the Company,
as amended, or any provision of any indenture, agreement or other instrument to
which the Company, any of its subsidiaries or any of their respective properties
or assets is bound, or conflict with, result in a breach of or constitute (with
due notice or lapse of time or both) a default under any such indenture,
agreement or other instrument, or result in the creation or imposition of any
lien, charge, restriction, claim or encumbrance of any nature whatsoever upon
any of the properties or assets of the Company or any of its subsidiaries. To
the best of the Company's knowledge, no provision of the Stockholders' Agreement
violates, conflicts with, results in a breach of or constitutes (with due notice
or lapse of time or both) a default by any other party under any other
indenture, agreement or instrument.
(b) The Purchased Shares have been duly authorized and, when
issued in accordance with this Agreement, will be validly issued, fully paid and
nonassessable shares of Series A Preferred Stock with no personal liability
attaching to the ownership thereof and will be free and clear of all liens,
charges, restrictions, claims and encumbrances imposed by or through the Company
except as set forth in the Registration Rights Agreement and the Stockholders'
Agreement and as imposed by applicable federal and state securities laws. The
Converted Shares have been duly reserved for issuance upon conversion of the
Purchased Shares and, when so issued, will be duly authorized, validly issued,
fully paid and nonassessable shares of Common Stock with no personal liability
attaching to the ownership thereof and will be free and clear of all liens,
charges, restrictions, claims and encumbrances imposed by or through the Company
except as set forth in the Registration Rights Agreement and the Stockholders'
Agreement and as imposed by applicable federal and state securities laws.
Neither the issuance, sale or delivery of the Purchased Shares nor the issuance
or delivery of the Converted Shares is subject to any preemptive right of
stockholders of the Company or to any right of first refusal or other right in
favor of any person.
3.03 Validity. This Agreement has been duly executed and delivered by
the Company and constitutes the legal, valid and binding obligation of the
Company, enforceable in accordance with its terms (subject, as to enforcement of
remedies, to applicable bankruptcy, reorganization, insolvency, moratorium and
similar laws affecting the rights of creditors generally). The Registration
Rights
Agreement and the Stockholders' Agreement, when executed and delivered in
accordance with this Agreement, will constitute the legal, valid and binding
obligations of the Company, enforceable in accordance with their respective
terms (subject, as to enforcement of remedies, to applicable bankruptcy,
reorganization, insolvency, moratorium and similar laws affecting the rights of
creditors generally).
3.04 Authorized Capital Stock. The authorized capital stock of the
Company consists of (i) 5,000,000 shares of Preferred Stock, $.001 par value
(the "Preferred Stock"), of which 1,666,667 shares have been designated Series A
Preferred Stock, and (ii) 10,000,000 shares of Common Stock. Immediately prior
to the Closing, 1,471,480 shares of Common Stock will be validly issued and
outstanding, fully paid and nonassessable with no personal liability attaching
to the ownership thereof and no shares of Preferred Stock will have been issued.
The stockholders of record owning more than 5% of the outstanding shares of the
Common Stock of the Company and holders of subscriptions, warrants, options,
convertible securities, and other rights (contingent or other) to purchase or
otherwise acquire equity securities of the Company, and the number of shares of
Common Stock and the number of such subscriptions, warrants, options,
convertible securities, and other such rights held by each, are as set forth in
the attached Schedule IV. The designations, powers, preferences, rights,
qualifications, limitations and restrictions in respect of each class and series
of authorized capital stock of the Company are as set forth in the Charter and
Certificate of Designations, a copy of which is attached as Exhibit 1.01A, and
all such designations, powers, preferences, rights, qualifications, limitations
and restrictions are valid, binding and enforceable and in accordance with all
applicable laws. Except as set forth in the attached Schedule IV, (i) no
subscription, warrant, option, convertible security, or other right (contingent
or other) to purchase or otherwise acquire equity securities of the Company is
authorized or outstanding and (ii) there is no commitment by the Company to
issue shares, subscriptions, warrants, options, convertible securities, or other
such rights or to distribute to holders of any of its equity securities any
evidence of indebtedness or asset. Except as provided for in the Charter or as
set forth in the attached Schedule IV, the Company has no obligation (contingent
or other) to purchase, redeem or otherwise acquire any of its equity securities
or any interest therein or to pay any dividend or make any other distribution in
respect thereof. Except for the Stockholders' Agreement, to the best of the
Company's knowledge there are no voting trusts or agreements, stockholders'
agreements, pledge agreements, buy-sell agreements, rights of first refusal,
preemptive rights or proxies relating to any securities of the Company or any of
its subsidiaries (whether or not the Company or any of its subsidiaries is a
party thereto). All of the outstanding securities of the Company were issued in
compliance with all applicable federal and state securities laws.
3.05 Financial Statements. The Company has furnished to the Purchasers
the audited consolidated balance sheet of Telor Ophthalmic Pharmaceuticals,
Inc., Occupational Health + Rehabilitation Inc and their subsidiaries
(collectively, the "Predecessor Companies") as of December 31, 1995 and the
related audited consolidated statements of income, stockholders' equity and cash
flows of the Predecessor Companies for the year ended December 31, 1995, the
Unaudited Pro Forma Combined Financial Information as of December 31, 1995 as
disclosed in the Offering Memorandum and Proxy Statement dated May 15, 1996 (the
"Proxy Statement"), the unaudited consolidated balance sheet of the Company and
its subsidiaries as of June 30, 1996 (the "Balance Sheet") and the related
unaudited consolidated statements of income, stockholders' equity and cash flows
of the Company and its subsidiaries for the 6 months ended June 30, 1996. All
such financial statements have been prepared in accordance with generally
accepted accounting principles consistently applied (except that such unaudited
financial statements do not contain all of the required footnotes and interim
statements do not contain year-end adjustments), or where different from
generally accepted accounting principles, SEC requirements, and fairly present
the consolidated financial position of the Predecessor Companies, the Company
and its subsidiaries as of December 31, 1995 and June 30, 1996, respectively,
and the
consolidated results of their operations and cash flows of the Predecessor
Companies, the Company and its subsidiaries for the year ended December 31, 1995
and the 6 months ended June 30, 1996, respectively. Since the date of the
Balance Sheet, (i) there has been no change in the assets, liabilities or
financial condition of the Company and its subsidiaries (on a consolidated
basis) from that reflected in the Balance Sheet except for changes in the
ordinary course of business which in the aggregate have not been materially
adverse and (ii) none of the business, prospects, financial condition,
operations, property or affairs of the Company and its subsidiaries (on a
consolidated basis) has been materially adversely affected by any occurrence or
development, individually or in the aggregate, whether or not insured against.
3.06 Events Subsequent to the Date of the Balance Sheet. Since the date
of the Balance Sheet, the Company has not (i) issued any stock, bond or other
corporate security, (ii) borrowed any amount or incurred or become subject to
any liability (absolute, accrued or contingent), except current liabilities
incurred and liabilities under contracts entered into in the ordinary course of
business, (iii) discharged or satisfied any lien or encumbrance or incurred or
paid any obligation or liability (absolute, accrued or contingent) other than
current liabilities shown on the Balance Sheet and current liabilities incurred
since the date of the Balance Sheet in the ordinary course of business, (iv)
declared or made any payment or distribution to stockholders or purchased or
redeemed any share of its capital stock or other security, (v) mortgaged,
pledged, encumbered or subjected to lien any of its assets, tangible or
intangible, other than liens of current real property taxes not yet due and
payable, (vi) sold, assigned or transferred any of its tangible assets except in
the ordinary course of business, or cancelled any debt or claim, (vii) sold,
assigned, transferred or granted any exclusive license with respect to any
patent, trademark, trade name, service mark, copyright, trade secret or other
intangible asset, (viii) suffered any loss of property or waived any right of
substantial value whether or not in the ordinary course of business, (ix) made
any change in officer compensation except in the ordinary course of business and
consistent with past practice, (x) made any material change in the manner of
business or operations of the Company, (xi) entered into any transaction except
in the ordinary course of business or as otherwise contemplated hereby or (xii)
entered into any commitment (contingent or otherwise) to do any of the
foregoing.
3.07 Litigation; Compliance with Law. There is no (i) action, suit,
claim, proceeding or investigation pending or, to the best of the Company's
knowledge, threatened against or affecting the Company, at law or in equity, or
before or by any federal, state, municipal or other governmental department,
commission, board, bureau, agency or instrumentality, domestic or foreign, (ii)
arbitration proceeding relating to the Company pending under collective
bargaining agreements or otherwise or (iii) governmental inquiry pending or, to
the best of the Company's knowledge, threatened against or affecting the Company
(including without limitation any inquiry as to the qualification of the Company
to hold or receive any license or permit), and, to the best of the Company's
knowledge, there is no basis for any of the foregoing. The Company has not
received any opinion or memorandum or legal advice from legal counsel to the
effect that it is exposed, from a legal standpoint, to any liability or
disadvantage which may be material to its business, prospects, financial
condition, operations, property or affairs. The Company is not in default with
respect to any order, writ, injunction or decree known to or served upon the
Company of any court or of any federal, state, municipal or other governmental
department, commission, board, bureau, agency or instrumentality, domestic or
foreign. There is no action or suit by the Company pending, or threatened or
contemplated against others. The Company has complied in all material respects
with all laws, rules, regulations and orders applicable to its business,
operations, properties, assets, products and services, the Company has all
necessary permits, licenses and other authorizations required to conduct its
business as conducted and as proposed to be conducted, and the Company has been
operating its business pursuant to and in compliance with the terms of all such
permits, licenses and other authorizations. There is no existing law, rule,
regulation or order, and the
Company after due inquiry is not aware of any proposed law, rule, regulation or
order, whether federal, state, county or local, which would prohibit or restrict
the Company from, or otherwise materially adversely affect the Company in,
conducting its business in any jurisdiction in which it is now conducting
business or in which it proposes to conduct business.
3.08 Proprietary Information of Third Parties. To the best of the
Company's knowledge, no third party has claimed or has reason to claim that any
person employed by or affiliated with the Company has (a) violated or may be
violating any of the terms or conditions of his or her employment,
non-competition or non-disclosure agreement with such third party, (b) disclosed
or may be disclosing or utilized or may be utilizing any trade secret or
proprietary information or documentation of such third party or (c) interfered
or may be interfering in the employment relationship between such third party
and any of its present or former employees. No third party has requested
information from the Company which suggests that such a claim might be
contemplated. To the best of the Company's knowledge, no person employed by or
affiliated with the Company has employed or proposes to employ any trade secret
or any information or documentation proprietary to any former employer, and to
the best of the Company's knowledge, no person employed by or affiliated with
the Company has violated any confidential relationship which such person may
have had with any third party, in connection with the development, manufacture
or sale of any product or proposed product or the development or sale of any
service or proposed service of the Company, and the Company has no reason to
believe there will be any such employment or violation. To the best of the
Company's knowledge, none of the execution or delivery of this Agreement, or the
carrying on of the business of the Company as officers, employees or agents by
any officer, director or key employee of the Company, or the conduct or proposed
conduct of the business of the Company, will conflict with or result in a breach
of the terms, conditions or provisions of or constitute a default under any
contract, covenant or instrument under which any such person is obligated.
3.09 Patents, Trademarks, Etc. Set forth in Schedule II is a list and
brief description of all domestic and foreign patents, patent rights, patent
applications, trademarks, trademark applications, service marks, service mark
applications, trade names and registered copyrights, and all applications for
such which are in the process of being prepared, owned by or registered in the
name of the Company, or of which the Company is a licensor or licensee or in
which the Company has any right, and in each case a brief description of the
nature of such right. The Company owns or possesses adequate licenses or other
rights to use all patents, patent applications, trademarks, trademark
applications, service marks, service mark applications, trade names, copyrights,
manufacturing processes, formulae, trade secrets, customer lists and know how
(collectively, "Intellectual Property") necessary or desirable to the conduct of
its business as conducted and as proposed to be conducted, and no claim is
pending or, to the best of the Company's knowledge, threatened to the effect
that the operations of the Company infringe upon or conflict with the asserted
rights of any other person under any Intellectual Property, and, to the best of
the Company's knowledge, there is no basis for any such claim (whether or not
pending or threatened). No claim is pending or, to the best of the Company's
knowledge, threatened to the effect that any such Intellectual Property owned or
licensed by the Company, or which the Company otherwise has the right to use, is
invalid or unenforceable by the Company, and, to the best of the Company's
knowledge, there is no basis for any such claim (whether or not pending or
threatened). To the best of the Company's knowledge, all technical information
developed by and belonging to the Company which has not been patented has been
kept confidential. The Company has not granted or assigned to any other person
or entity any right to manufacture, have manufactured, assemble or sell the
products or proposed products or to provide the services or proposed services of
the Company.
3.10 Title to Properties. The Company and its subsidiaries have good,
clear and marketable title to their respective properties and assets reflected
on the Balance Sheet or acquired by them since the date of the Balance Sheet
(other than properties and assets disposed of in the ordinary course of business
since the date of the Balance Sheet), and all such properties and assets are
free and clear of mortgages, pledges, security interests, liens, charges,
claims, restrictions and other encumbrances (including without limitation,
easements and licenses), except for liens for or current taxes not yet due and
payable and minor imperfections of title, if any, not material in nature or
amount and not materially detracting from the value or impairing the use of the
property subject thereto or impairing the operations or proposed operations of
the Company and its subsidiaries, including without limitation, the ability of
the Company and its subsidiaries to secure financing using such properties and
assets as collateral. To the best of the Company's knowledge after due inquiry,
there are no condemnation, environmental, zoning or other land use regulation
proceedings, either instituted or planned to be instituted, which would
adversely affect the use or operation of the Company's and its subsidiaries'
properties and assets for their respective intended uses and purposes, or the
value of such properties, and neither the Company nor any subsidiary has
received notice of any special assessment proceedings which would affect such
properties and assets.
3.11 Leasehold Interests. Each lease or agreement to which the Company
is a party under which it is a lessee of any property, real or personal, is a
valid and subsisting agreement, duly authorized and entered into, without any
default of the Company thereunder and, to the best of the Company's knowledge,
without any default thereunder of any other party thereto. No event has occurred
and is continuing which, with due notice or lapse of time or both, would
constitute a default or event of default by the Company under any such lease or
agreement or, to the best of the Company's knowledge, by any other party
thereto. The Company's possession of such property has not been disturbed and,
to the best of the Company's knowledge after due inquiry, no claim has been
asserted against the Company adverse to its rights in such leasehold interests.
3.12 Insurance. The Company holds valid policies covering all of the
insurance required to be maintained by it under Section 4.04.
3.13 Taxes. The Company has filed all tax returns, federal, state,
county and local, required to be filed by it, and the Company has paid all taxes
shown to be due by such returns as well as all other taxes, assessments and
governmental charges which have become due or payable (and are not the subject
of a valid extension of time), including without limitation all taxes which the
Company is obligated to withhold from amounts owing to employees, creditors and
third parties. The Company has established adequate reserves for all taxes
accrued but not yet payable. The Company has not received notice that its
federal income tax returns have been audited by the Internal Revenue Service. No
deficiency assessment with respect to or proposed adjustment of the Company's
federal, state, county or local taxes is pending or, to the best of the
Company's knowledge, threatened. There is no tax lien (other than for current
taxes not yet due and payable), whether imposed by any federal, state, county or
local taxing authority, outstanding against the assets, properties or business
of the Company.
3.14 Other Agreements. Except as set forth in the attached Schedule
V(A), the Company is not a party to or otherwise bound by any written or oral
agreement, instrument, commitment or restriction which individually or in the
aggregate has, or which the Company believes is likely to, materially adversely
affect the business, prospects, financial condition, operations, property or
affairs of the Company. Except as set forth in the attached Schedule V(B), the
Company is not a party to or otherwise bound by any written or oral:
(a) sales agency or similar agreement which is not terminable on less
than ninety (90) days' notice without cost or other liability to the
Company (except for agreements which, in the aggregate, are not material
to the business of the Company);
(b) agreement which entitles any customer to a rebate or right of
set-off, or which varies in any material respect from the Company's
standard form agreements;
(c) agreement with any labor union (and, to the knowledge of the
Company, no organizational effort is being made with respect to any of its
employees);
(d) agreement with any supplier or customer containing any provision
permitting any party other than the Company to renegotiate the price or
other terms, or containing any pay-back or other similar provision;
(e) agreement for the future purchase of fixed assets or for the future
purchase of materials, supplies or equipment in excess of its normal
operating requirements;
(f) agreement for the employment of any officer, employee or other
person (whether of a legally binding nature or in the nature of informal
understandings) on a full-time or consulting basis which is not terminable
on notice without cost or other liability to the Company, except normal
severance arrangements and accrued vacation pay;
(g) bonus, pension, profit-sharing, retirement, hospitalization,
insurance, stock purchase, stock option or other plan, agreement or
understanding pursuant to which benefits are provided to any employee of
the Company (other than group insurance plans which are not self-insured
and are applicable to employees generally);
(h) agreement relating to the borrowing of money or to the mortgaging
or pledging of, or otherwise placing a lien or security interest on, any
asset of the Company;
(i) voting trust or agreement, stockholders' agreement, pledge
agreement, buy-sell agreement or first refusal or preemptive rights
agreement relating to any securities of the Company;
(j) agreement or obligation (contingent or otherwise) to issue, sell or
otherwise distribute or to repurchase or otherwise acquire or retire any
share of its capital stock or any of its other equity securities;
(k) assignment, license or other agreement with respect to any form of
intangible property;
(l) agreement under which it has granted any person any registration
rights, other than the Registration Rights Agreement;
(m) agreement under which it has limited or restricted its right to
compete with any person in any respect;
(n) other agreement or group of related agreements with the same party
involving more than $10,000 or continuing over a period of more than six
months from the date or dates thereof (including renewals or extensions
optional with another party), which agreement or group of agreements is
not terminable by the Company without penalty upon notice of thirty (30)
days or
less, but excluding any agreement or group of agreements with a
customer of the Company for the Company's products or services if such
agreement or group of agreements was entered into by the Company in the
ordinary course of business; or
(o) other agreement, instrument, commitment, plan or arrangement, a
copy of which would be required to be filed with the Securities and
Exchange Commission (the "Commission") as an exhibit to a registration
statement on Form S-1 if the Company were registering securities under the
Securities Act of 1933, as amended (the "Securities Act") which has not
yet been filed with the Commission and a copy delivered to counsel for the
Purchasers.
The Company, and to the best of the Company's knowledge after due inquiry, each
other party thereto have in all material respects performed all the obligations
required to be performed by them to date (or each non-performing party has
received a valid, enforceable and irrevocable written waiver with respect to its
non-performance), have received no notice of default and are not in default
(with due notice or lapse of time or both) under any agreement, instrument,
commitment, plan or arrangement to which the Company is a party or by which it
or its property may be bound. The Company has no present expectation or
intention of not fully performing all its obligations under each such agreement,
instrument, commitment, plan or arrangement, and the Company has no knowledge of
any breach or anticipated breach by the other party to any agreement,
instrument, commitment, plan or arrangement to which the Company is a party. The
Company is in full compliance with all of the terms and provisions of its
Charter and By-laws, as amended.
3.15 Loans and Advances. The Company does not have any outstanding
loans or advances to any person and is not obligated to make any such loans or
advances, except, in each case, for advances to employees of the Company in
respect of reimbursable business expenses anticipated to be incurred by them in
connection with their performance of services for the Company.
3.16 Assumptions, Guaranties, Etc. of Indebtedness of Other Persons.
The Company has not assumed, guaranteed, endorsed or otherwise become directly
or contingently liable on any indebtedness of any other person (including,
without limitation, liability by way of agreement, contingent or otherwise, to
purchase, to provide funds for payment, to supply funds to or otherwise invest
in the debtor, or otherwise to assure the creditor against loss), except for
guaranties by endorsement of negotiable instruments for deposit or collection in
the ordinary course of business.
3.17 Significant Customers and Suppliers. No customer or supplier which
was significant to the Company during the period covered by the financial
statements referred to in Section 3.05 or which has been significant to the
Company thereafter, has terminated, materially reduced or threatened to
terminate or materially reduce its purchases from or provision of products or
services to the Company, as the case may be.
3.18 Governmental Approvals. Subject to the accuracy of the
representations and warranties of the Purchasers set forth in Article V, no
registration or filing with, or consent or approval of or other action by, any
federal, state or other governmental agency or instrumentality is or will be
necessary for the valid execution, delivery and performance by the Company of
this Agreement, the Registration Rights Agreement or the Stockholders'
Agreement, the issuance, sale and delivery of the Purchased Shares or, upon
conversion thereof, the issuance and delivery of the Converted Shares, other
than (i) filings pursuant to state securities laws (all of which filings have
been made by the Company, other than those which are required to be made after
the Closing and which will be duly made on a timely basis) in connection with
the sale of the Purchased Shares and (ii) with respect to the Registration
Rights
Agreement, the registration of the shares covered thereby with the Commission
and filings pursuant to state securities laws.
3.19 Disclosure. Neither this Agreement, nor any Schedule or Exhibit to
this Agreement, nor the Proxy Statement, nor the income summaries by center and
summaries regarding patient visits and revenue by center through August 31,
1996, nor the consolidated balance sheet of the Company as of August 31, 1996
contains an untrue statement of a material fact or omits a material fact
necessary to make the statements contained herein or therein not misleading as
of the date hereof. None of the statements, documents, certificates or other
items prepared or supplied by the Company with respect to the transactions
contemplated hereby contains an untrue statement of a material fact or omits a
material fact necessary to make the statements contained therein not misleading.
There is no fact which the Company has not disclosed to the Purchasers and their
counsel in writing and of which the Company is aware which materially and
adversely affects or could materially and adversely affect the business,
prospects, financial condition, operations, property or affairs of the Company
or any of its subsidiaries. The financial projections and other estimates
provided to the Purchasers were prepared by the Company based on the Company's
experience in the industry and on assumptions of fact and opinion as to future
events which the Company believes to be reasonable, but which the Company cannot
and does not assure or guarantee the attainment of in any manner. As of the date
hereof, no facts have come to the attention of the Company which would, in its
opinion, require the Company to revise or amplify the assumptions underlying
such projections and other estimates or the conclusions derived therefrom.
3.20 Offering of the Purchased Shares. Neither the Company nor any
person authorized or employed by the Company as agent, broker, dealer or
otherwise in connection with the offering or sale of the Purchased Shares or any
security of the Company similar to the Purchased Shares has offered the
Purchased Shares or any such similar security for sale to, or solicited any
offer to buy the Purchased Shares or any such similar security from, or
otherwise approached or negotiated with respect thereto with, any person or
persons, and neither the Company nor any person acting on its behalf has taken
or will take any other action (including, without limitation, any offer,
issuance or sale of any security of the Company under circumstances which might
require the integration of such security with Purchased Shares under the
Securities Act or the rules and regulations of the Commission thereunder), in
either case so as to subject the offering, issuance or sale of the Purchased
Shares to the registration provisions of the Securities Act.
3.21 Brokers. The Company has no contract, arrangement or understanding
with any broker, finder or similar agent with respect to the transactions
contemplated by this Agreement.
3.22 Officers. Set forth in Schedule II is a list of the names of the
officers of the Company, together with the title or job classification of each
such person and the total compensation anticipated to be paid to each such
person by the Company and its subsidiaries in 1996. None of such persons has an
employment agreement or understanding, whether oral or written, with the Company
or any of its subsidiaries, which is not terminable on notice by the Company or
such subsidiary without cost or other liability to the Company or such
subsidiary.
3.23 Transactions With Affiliates. No director, officer, employee or
stockholder of the Company, or member of the family of any such person, or any
corporation, partnership, trust or other entity in which any such person, or any
member of the family of any such person, has a substantial interest or is an
officer, director, trustee, partner or holder of more than 5% of the outstanding
capital stock thereof, is a party to any transaction with the Company, including
any contract, agreement or other arrangement providing for the employment of,
furnishing of services by, rental of real or personal
property from or otherwise requiring payments to any such person or firm, other
than employment-at-will arrangements in the ordinary course of business.
3.24 Employees. Each of the officers of the Company, each key employee
and each other employee now employed by the Company who has access to
confidential information of the Company has executed a Confidentiality Agreement
(collectively, the "Confidentiality Agreements"), and such agreements are in
full force and effect. No officer or key employee of the Company has advised the
Company (orally or in writing) that he or she intends to terminate employment
with the Company. The Company has complied in all material respects with all
applicable laws relating to the employment of labor, including provisions
relating to wages, hours, equal opportunity, collective bargaining and the
payment of Social Security and other taxes., and with the Employee Retirement
Income Security Act of 1974, as amended ("ERISA").
3.25 U.S. Real Property Holding Corporation. The Company is not now and
has never been a "United States real property holding corporation," as defined
in Section 897(c)(2) of the Code and Section 1.897-2(b) of the Treasury
Regulations and the Company has filed with the Internal Revenue Service all
statements, if any, with its United States income tax returns which are required
under Section 1.897-2(h) of such Regulations.
3.26 Environmental Protection. The Company has not caused or allowed,
or contracted with any party for, the generation, use, transportation,
treatment, storage or disposal of any Hazardous Substances (as defined below) in
connection with the operation of its business or otherwise which could
reasonably be expected to result in a claim or liability of a material adverse
nature. The Company, the operation of its business, and any real property that
the Company owns, leases or otherwise occupies or uses (the "Premises") are in
compliance in all material respects with all applicable Environmental Laws (as
defined below) and orders or directives of any governmental authorities having
jurisdiction under such Environmental Laws, including, without limitation, any
Environmental Laws or orders or directives with respect to any cleanup or
remediation of any release or threat of release of Hazardous Substances. The
Company has not received any citation, directive, letter or other communication,
written or oral, or any notice of any proceeding, claim or lawsuit, from any
person arising out of the ownership or occupation of the Premises, or the
conduct of its operations, and the Company is not aware of any basis therefor.
The Company has obtained and is maintaining in full force and effect all
material permits, licenses and approvals required by all Environmental Laws
applicable to the Premises and the business operations conducted thereon, and is
in material compliance with all such permits, licenses and approvals. The
Company has not caused or allowed a release, or a threat of release, of any
Hazardous Substance unto, at or near the Premises, and, to the best of the
Company's knowledge, the Premises has never been subject to a release, or a
threat of release, of any Hazardous Substance. For the purposes of this
Agreement, the term "Environmental Laws" shall mean any Federal, state or local
law or ordinance or regulation pertaining to the protection of human health or
the environment, including, without limitation, the Comprehensive Environmental
Response, Compensation and Liability Act, 42 U.S.C. Sections 9601, et seq., the
Emergency Planning and Community Right-to-Know Act, 42 U.S.C. Sections 11001, et
seq., and the Resource Conservation and Recovery Act, 42 U.S.C. Sections 6901,
et seq. For purposes of this Agreement, the term "Hazardous Substances" shall
include oil and petroleum products, asbestos, polychlorinated biphenyls, urea
formaldehyde and any other materials classified as hazardous or toxic under any
Environmental Laws.
3.27 ERISA.
(a) Schedule II lists each Employee Plan that covers any employee of
the Company, copies or descriptions of all of which have previously been made
available or furnished to the Purchasers. With respect to each Employee Plan,
the Company has provided the most recently filed Form 5500 and an accurate
summary description of such plan.
(b) Schedule II also includes a list of each Benefit Arrangement of the
Company, copies or descriptions of all of which have been made available or
furnished previously to the Purchasers.
(c) No Employee Plan is a Multiemployer Plan and no Employee Plan is
subject to Title IV of ERISA. The Company and its Affiliates have not incurred
any liability under Title IV of ERISA arising in connection with the termination
of any plan covered or previously covered by Title IV of ERISA.
(d) None of the Employee Plans or other arrangements listed on Schedule
II covers any non-United States employee or former non-United States employee of
the Company.
(e) No "prohibited transaction," as defined in Section 406 of ERISA or
Section 4975 of the Code, has occurred with respect to any Employee Plan.
(f) Each Employee Plan which is intended to be qualified under Section
401(a) of the Code is so qualified and has been so qualified during the period
from its adoption to date, and each trust forming a part thereof is exempt from
tax pursuant to Section 501(a) of the Code. The Company has furnished to the
Purchasers copies of the most recent Internal Revenue Service determination
letters with respect to each such plan, including a letter with respect to
amendments required by the Tax Reform Act of 1986. Each Employee Plan has been
maintained in compliance with its terms and with the requirements prescribed by
any and all statutes, orders, rules and regulations, including but not limited
to ERISA and the Code, which are applicable to such plan.
(g) Each Employee Plan and each Benefit Arrangement has been maintained
in substantial compliance with its terms and with the requirements prescribed by
any and all statutes, orders, rules and regulations which are applicable to such
Employee Plan and Benefit Arrangement.
(h) Except as disclosed in writing to the Purchasers prior to the date
hereof, there has been no amendment to, written interpretation of or
announcement (whether or not written) by the Company or any of its ERISA
Affiliates relating to, or change in employee participation or coverage under,
any Employee Plan or Benefit Arrangement that would increase materially the
expense of maintaining such Employee Plan or Benefit Arrangement above the level
of the expense incurred in respect thereof for the fiscal year ended prior to
the date hereof.
(i) There is no contract, agreement, plan or arrangement covering any
employee or former employee of the Company that, individually or collectively,
could give rise to the payment of any amount that would not be deductible
pursuant to the terms of Section 280G of the Code.
(j) No tax under Section 4980B of the Code has been incurred in respect
of any Employee Plan that is a group health plan, as defined in Section
5000(b)(1) of the Code.
(k) With respect to the employees and former employees of the Company,
there are no employee post-retirement medical or health plans in effect, except
as required by Section 4980B of the Code.
(l) No employee of the Company will become entitled to any bonus,
retirement, severance or similar benefit or enhanced benefit solely as a result
of the transactions contemplated hereby.
(m) The Company does not have, nor is it reasonably expected to have,
any liability under Title IV of ERISA.
3.28 Foreign Corrupt Practices Act. The Company has not taken any
action which would cause it to be in violation of the Foreign Corrupt Practices
Act of 1977, as amended, or any rules and regulations thereunder. To the best of
the Company's knowledge after due inquiry, there is not now, and there has never
been, any employment by the Company of, or beneficial ownership in the Company
by, any governmental or political official in any country in the world.
3.29 Federal Reserve Regulations. The Company is not engaged in the
business of extending credit for the purpose of purchasing or carrying margin
securities (within the meaning of Regulation G of the Board of Governors of the
Federal Reserve System), and no part of the proceeds of the Preferred Shares
will be used to purchase or carry any margin security or to extend credit to
others for the purpose of purchasing or carrying any margin security or in any
other manner which would involve a violation of any of the regulations of the
Board of Governors of the Federal Reserve System.
3.30 Additional Information. The Company has filed in a timely manner
all documents that the Company was required to file under the Securities
Exchange Act of 1934, as amended (the "Exchange Act") during the 12 months
preceding the date of this Agreement. The following documents complied in all
material respects with the requirements of the Exchange Act as of their
respective filing dates, and the information contained therein was true and
correct in all material respects as of the date of such documents, and each of
the following documents as of the date thereof did not contain an untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading:
(a) The Company's Quarterly Report on Form 10-Q for the
quarter year ended June 30, 1996; and
(b) all other documents, if any, filed by the Company with the
Securities and Exchange Commission (the "Commission") since the filing of the
Quarterly Report on Form 10-Q for the fiscal quarter ended June 30, 1996
pursuant to the reporting requirements of the Exchange Act.
3.31 Securities Act of 1933. The Company has complied and will comply
with all applicable federal and state securities laws in connection with the
offer, issuance and sale of the Shares. Neither the Company nor anyone acting on
its behalf has or will sell, offer to sell or solicit offers to buy the Shares
or similar securities to, or solicit offers with respect thereto from, or enter
into any preliminary conversations or negotiations relating thereto with, any
Person, so as to bring the issuance and sale of the Shares under the
registration provisions of the Securities Act and applicable state securities
laws.
ARTICLE IV
COVENANTS OF THE COMPANY
The Company, together with its subsidiaries, covenants and agrees with
each of the Purchasers that:
4.01 Financial Statements, Reports, Etc. The Company shall furnish to
each Purchaser:
(a) within the time periods required for the furnishing thereof, copies
of the Company's reports filed on Form 10-K, Form 10-Q and any successor
form or forms;
(b) within thirty (30) days after the end of each month in each fiscal
year (other than the last month in each fiscal year) a consolidated
balance sheet of the Company and its subsidiaries, if any, the related
consolidated statements of income, stockholders' equity and cash flows,
income summaries by center, receivable aging tables by center and monthly
center operating data unaudited but prepared in accordance with generally
accepted accounting principles (except for notes and year-end adjustments)
and certified by the Chief Financial Officer of the Company, such
consolidated balance sheet to be as of the end of such month and such
consolidated statements of income, stockholders' equity and cash flows to
be for such month and for the period from the beginning of the fiscal year
to the end of such month, in each case with comparative statements for the
prior fiscal year, provided that the Company's obligations under this
Section 4.01(b) shall terminate upon the completion of a firm commitment
underwritten public offering of the Company's securities;
(c) at the time of delivery of each annual financial statement pursuant
to Section 4.01(a), a certificate executed by the Chief Financial Officer
of the Company stating that such officer has caused this Agreement and the
Series A Convertible Preferred Stock to be reviewed and has no knowledge
of any default by the Company in the performance or observance of any of
the provisions of this Agreement or the Series A Convertible Preferred
Stock or, if such officer has such knowledge, specifying such default and
the nature thereof;
(d) at the time of delivery of each monthly statement pursuant to
Section 4.01(b), a management narrative report explaining all significant
variances from forecasts and all significant current developments in
staffing, marketing, sales and operations;
(e) no later than thirty (30) days prior to the start of each fiscal
year, consolidated capital and operating expense budgets, cash flow
projections and income and loss projections for the Company and its
subsidiaries in respect of such fiscal year, all itemized in reasonable
detail, by center (other than cash flow projections and prepared on a
monthly basis, and, promptly after preparation, any revisions to any of
the foregoing;
(f) promptly following receipt by the Company, each audit response
letter, accountant's management letter and other written report submitted
to the Company by its independent public accountants in connection with an
annual or interim audit of the books of the Company or any of its
subsidiaries;
(g) promptly after the commencement thereof, notice of all actions,
suits, claims, proceedings, investigations and inquiries of the type
described in Section 3.07 that could materially adversely affect the
Company or any of its subsidiaries;
(h) promptly upon sending, making available or filing the same, all
press releases, reports and financial statements that the Company sends or
makes available to its stockholders or directors or files with the
Commission;
(i) at the time of delivery to the Company's Board of Directors,
reports, minutes, consents, waivers or such other information
substantially similar to such reports, minutes, consents, waivers or other
information delivered to the members of the Company's Board of Directors
provided that each Purchaser understands that it could be subject to
fines, penalties and other liabilities under applicable securities laws in
the event of trading in the Company's securities while in the possession
of any material, non-public information concerning the Company and agrees
to abide by these legal prohibitions on tipping and trading; and
(j) promptly, from time to time, such other information regarding the
business, prospects, financial condition, operations, property or affairs
of the Company and its subsidiaries as such Purchaser reasonably may
request.
4.02 Reserve for Conversion Shares. The Company shall at all times
reserve and keep available out of its authorized but unissued shares of Common
Stock, for the purpose of effecting the conversion of the Purchased Shares and
otherwise complying with the terms of this Agreement, such number of its duly
authorized shares of Common Stock as shall be sufficient to effect the
conversion of the Purchased Shares from time to time outstanding or otherwise to
comply with the terms of this Agreement. If at any time the number of authorized
but unissued shares of Common Stock shall not be sufficient to effect the
conversion of the Purchased Shares or otherwise to comply with the terms of this
Agreement, the Company will forthwith take such corporate action as may be
necessary to increase its authorized but unissued shares of Common Stock to such
number of shares as shall be sufficient for such purposes. The Company will
obtain any authorization, consent, approval or other action by or make any
filing with any court or administrative body that may be required under
applicable state securities laws in connection with the issuance of shares of
Common Stock upon conversion of the Purchased Shares.
4.03 Existence. The Company shall maintain and cause each of its
subsidiaries (if any) to maintain, their respective corporate or legal
existence, rights and franchises in full force and effect.
4.04 Properties, Business, Insurance. The Company shall maintain and
cause each of its subsidiaries (if any) to maintain as to their respective
properties and business, with financially sound and reputable insurers,
insurance against such casualties and contingencies and of such types and in
such amounts as is customary for companies similarly situated, which insurance
shall be deemed by the Company to be sufficient. The Company shall also use its
best efforts to obtain within 45 days of the Initial Closing Date and thereafter
maintain in effect a "key person" life insurance policy, payable to the Company,
on the life of John Garbarino (so long as he remains an employee of the
Company), in the amount of $1,000,000. The Company shall not cause or permit any
assignment or change in beneficiary and shall not borrow against any such
policy. If requested by Purchasers holding at least a majority of the
outstanding Purchased Shares, the Company will add one designee of such
Purchasers as a notice party for each such policy and shall request that the
issuer of each policy provide such designee with ten (10) days' notice before
such policy is terminated (for failure to pay premiums or otherwise) or assigned
or before any change is made in the beneficiary thereof.
4.05 Inspection, Consultation and Advice. The Company shall permit and
cause each of its subsidiaries (if any) to permit each Purchaser and such
persons as it may designate, at such Purchaser's expense, to visit and inspect
any of the properties of the Company and its subsidiaries, examine their books
and take copies and extracts therefrom, discuss the affairs, finances and
accounts of the Company and its subsidiaries with their officers, employees and
public accountants (and the Company hereby authorizes said accountants to
discuss with such Purchaser and such designees such affairs, finances and
accounts), and consult with and advise the management of the Company and its
subsidiaries as to their affairs, finances and accounts, all at reasonable times
and upon reasonable notice.
4.06 Restrictive Agreements Prohibited. Neither the Company nor any of
its subsidiaries shall become a party to any agreement which by its terms
restricts the Company's performance of this Agreement, the Registration Rights
Agreement, the Stockholders' Agreement or the Charter.
4.07 Transactions with Affiliates. Except for transactions contemplated
by this Agreement or as otherwise approved by the Board of Directors, neither
the Company nor any of its subsidiaries shall enter into any transaction with
any director, officer, employee or holder of more than 5% of the outstanding
capital stock of any class or series of capital stock of the Company or any of
its subsidiaries, member of the family of any such person, or any corporation,
partnership, trust or other entity in which any such person, or member of the
family of any such person, is a director, officer, trustee, partner or holder of
more than 5% of the outstanding capital stock thereof, except for transactions
on customary terms related to such person's employment.
4.08 Expenses of Directors. The Company shall promptly reimburse in
full, each director of the Company who is not an employee of the Company and who
was elected as a director solely or in part by the holders of Series A
Convertible Preferred Stock, for all of his or her reasonable out-of-pocket
expenses incurred in attending each meeting of the Board of Directors of the
Company or any Committee thereof.
4.09 Board of Directors Meetings. The Company shall use its best
efforts to ensure that meetings of its Board of Directors are held at least four
times each year and at least once each quarter.
4.10 Compensation. The Company shall not pay to its management
compensation in excess of that compensation customarily paid to management in
companies of similar size, of similar maturity, and in similar businesses
without the unanimous written consent of those members of the Company's Board of
Directors elected solely by the holders of Series A Convertible Preferred Stock.
4.11 By-laws . The Company shall use its best efforts, as promptly as
reasonably practicable after the Initial Closing Date, to cause its By-laws to
provide that, unless otherwise required by the laws of the State of Delaware,
any two directors shall have the right to call a meeting of the Board of
Directors. The Company shall at all times maintain provisions in its By-laws
and/or Charter indemnifying all directors against liability and absolving all
directors from liability to the Company and its stockholders to the maximum
extent permitted under the laws of the State of Delaware.
4.12 Reserved Employee Shares. From and after the Closing Dates
contemplated by this Agreement, the Company shall cause to be reserved for
issuance to directors, officers, employees and consultants of the Company on the
date hereof at least the same percentage of the fully diluted capital stock of
the Company as existed immediately prior to the Initial Closing Date, and the
Company shall also cause to be reserved for issuance to directors, officers,
employees and consultants of the Company
commencing such relationship with the Company after the date hereof an
additional 5% of the fully diluted capital stock of the Company (collectively,
the "Reserved Employee Shares"), such Reserved Employee Shares to be issued at a
price equal to or greater than the Series A Conversion Price (as defined in
paragraph 6 of the Company's Certificate of Designations filed with the
Secretary of State of the State of Delaware on the date hereof), pursuant to
stock purchase, stock grant or stock option arrangements pursuant to which such
Reserved Employee Shares will not become fully exercisable less than three years
nor more than five years from the date of such grant without the unanimous
written consent of those members of the Company's Board of Directors elected
solely by the holders of Series A Convertible Preferred Stock.
4.13 Employee Confidentiality Agreements. The Company shall use its
best efforts to obtain, and shall cause its subsidiaries (if any) to use their
best efforts to obtain, Confidentiality Agreement from all future officers, key
employees and other employees who will have access to confidential information
of the Company or any of its subsidiaries, upon their employment by the Company
or any of its subsidiaries.
4.14 Compliance with Laws. The Company shall comply, and cause each
subsidiary to comply, with all applicable laws, rules, regulations and orders,
noncompliance with which could materially adversely affect its business or
condition, financial or otherwise.
4.15 Keeping of Records and Books of Account. The Company shall keep,
and cause each subsidiary to keep, adequate records and books of account, in
which complete entries will be made in accordance with generally accepted
accounting principles consistently applied, reflecting all financial
transactions of the Company and such subsidiary, and in which, for each fiscal
year, all proper reserves for depreciation, depletion, obsolescence,
amortization, taxes, bad debts and other purposes in connection with its
business shall be made.
4.16 U.S. Real Property Interest Statement. The Company shall provide
prompt written notice to each Purchaser following any "determination date" (as
defined in Treasury Regulation Section 1.897-2(c)(i)) on which the Company
becomes a United States real property holding corporation. In addition, upon a
written request by any Purchaser, the Company shall provide such Purchaser with
a written statement informing the Purchaser whether such Purchaser's interest in
the Company constitutes a U.S. real property interest. The Company's
determination shall comply with the requirements of Treasury Regulation Section
1.897-2(h)(1) or any successor regulation, and the Company shall provide timely
notice to the Internal Revenue Service, in accordance with and to the extent
required by Treasury Regulation Section 1.897-2(h)(2) or any successor
regulation, that such statement has been made. The Company's written statement
to any Purchaser shall be delivered to such Purchaser as soon as practicable but
in any event within thirty (30) days of such Purchaser's written request
therefor. The Company's obligation to furnish a written statement pursuant to
this Section 4.16 shall continue notwithstanding the fact that a class of the
Company's stock may be regularly traded on an established securities market.
4.17 Compensation and Audit Committees. The Company shall, by amending
its By-laws or otherwise, establish and maintain a Compensation Committee and an
Audit Committee of the Board of Directors, each of which shall consist of at
least three directors. The three directors serving on the Compensation Committee
of the Company shall initially be Edward L. Cahill, Angus M. Duthie and one
other director of the Company unaffiliated with management of the Company who
shall be appointed after the Initial Closing Date. Except for arrangements
existing on the date hereof, no compensation or other remuneration at an annual
rate in excess of $100,000 shall be paid to, and no capital stock of the Company
shall be issued or granted to, any director, officer or employee of, or any
consultant or adviser
to, the Company or any of its subsidiaries, without the approval of the
Compensation Committee. No employee stock option plan, employee stock purchase
plan, employee restricted stock plan or other employee stock plan shall be
established without the approval of the Compensation Committee. The Audit
Committee shall select (subject to the approval of the Board of Directors) and
provide instructions to the Company's auditors.
4.18 Listing. The Company shall use its best efforts to comply with all
requirements of the National Association of Securities Dealers, Inc. (the
"NASD") and the Nasdaq SmallCap Market with respect to the issuance of the
Shares and the listing of the Company's Common Stock on the Nasdaq SmallCap
Market.
4.19 Termination of Covenants. The covenants set forth herein shall
terminate and be of no further force or effect as to each of the Purchasers when
such Purchaser no longer holds any shares of Series A Convertible Preferred
Stock.
ARTICLE V
REPRESENTATIONS, WARRANTIES AND COVENANTS
OF THE PURCHASERS
(a) Each of the Purchasers, severally and not jointly,
represents and warrants to, and covenants with, the Company, as of the date
hereof, the Initial Closing Date and as of the Additional Closing Date, that:
(i) it will acquire the Purchased Shares to be acquired by it for its own
account and that the Purchased Shares are being and will be acquired by it for
the purpose of investment and not with a view to distribution or resale thereof;
(ii) the execution of this Agreement and the consummation of the transactions
contemplated hereby have been duly authorized by all necessary action on the
part of the Purchaser, and this Agreement has been duly executed and delivered,
and constitutes a valid, legal, binding and enforceable agreement of the
Purchaser; (iii) it is an "accredited investor" within the meaning of Rule 501
of Regulation D promulgated under the Securities Act and was not organized for
the specific purpose of acquiring the Purchased Shares; (iv) it has taken no
action which would give rise to any claim by any other person for any brokerage
commissions, finders' fees or the like relating to this Agreement or the
transactions contemplated hereby; (v) it has sufficient knowledge and experience
in investing in companies similar to the Company in terms of the Company's stage
of development so as to be able to evaluate the risks and merits of its
investment in the Company and it is able financially to bear the risks thereof;
(vi) without limiting the representations or warranties of the Company in
Article III hereof, it has had an opportunity to discuss the Company's business,
management and financial affairs with the Company's management, and it has been
furnished with copies of documents which it has requested; and (vii) it is not
an "Interested Stockholder" of the Company as that term is defined in the
Company's Charter and Section 203 of the Delaware General Corporation law.
(b) Each of the Purchasers, severally and not jointly,
further represents and warrants to, and covenants with, the Company that (i) the
Purchaser has full right, power, authority and capacity to enter into this
Agreement and to consummate the transactions contemplated hereby and has taken
all necessary action to authorize the execution, delivery and performance of
this Agreement, and (ii) upon the execution and delivery of this Agreement, this
Agreement shall constitute a valid and binding obligation of the Purchaser
enforceable in accordance with its terms, except as enforceability may be
limited by applicable bankruptcy, insolvency, reorganization, moratorium or
similar laws affecting creditors' and contracting parties' rights generally and
except as enforceability may be subject
to general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law) and except as the
indemnification agreements of the Purchaser herein may be legally unenforceable.
(c) Each of the Purchasers further represents that it
understands and agrees that, until registered under the Securities Act or
transferred pursuant to the provisions of Rule 144 as promulgated by the
Commission, all certificates evidencing any of the Shares, whether upon initial
issuance or upon any transfer thereof, shall bear a legend, prominently stamped
or printed thereon, reading substantially as follows, together with any legends
that may be required under applicable state securities laws:
"The securities represented by this certificate have not been
registered under the Securities Act of 1933 or applicable state securities laws.
These securities have been acquired for investment and not with a view to
distribution or resale, and may not be sold, mortgaged, pledged, hypothecated or
otherwise transferred [for non U.S. persons add: in the United States or to U.S.
persons] without an effective registration statement for such securities under
the Securities Act of 1933 and applicable state securities laws, or the
availability of an exemption from the registration provisions of the Securities
Act of 1933 and applicable state securities laws."
ARTICLE VI
RIGHT OF FIRST REFUSAL
6.01 Right of First Refusal. The Company shall not issue, sell or
exchange, agree or obligate itself to issue, sell or exchange, or reserve or set
aside for issuance, sale or exchange, for a price equal to or less than the then
applicable "Series A Conversion Price" (as defined in paragraph 6 of the
Company's Certificate of Designations filed with the Secretary of State of the
State of Delaware on the date hereof) any (i) shares of Common Stock, (ii) any
other equity security of the Company, including without limitation, shares of
Series A Preferred Stock, (iii) any debt security which by its terms is
convertible into or exchangeable for any equity security of the Company, (iv)
any security of the Company that is a combination of debt and equity, or (v) any
option, warrant or other right to subscribe for, purchase or otherwise acquire
any such equity security or any such debt security of the Company, unless in
each case the Company shall have first offered to sell such securities (the
"Offered Securities") to the Purchasers as follows: The Company shall offer to
sell to each Purchaser (a) that portion of the Offered Securities as the number
of shares of Purchased Shares and Converted Shares then held by such Purchaser,
as the case may be, bears to the total number of shares of Common Stock,
Purchased Shares and Converted Shares outstanding on such date (the "Basic
Amount"), and (b) such additional portion of the Offered Securities as such
Purchaser shall indicate it will purchase should the other Purchasers subscribe
for less than their Basic Amounts (the "Undersubscription Amount"), at a price
and on such other terms as shall have been specified by the Company in writing
delivered to such Purchaser (the "Offer"), which Offer by its terms shall remain
open and irrevocable for a period of twenty (20) days from receipt of the Offer.
6.02 Notice of Acceptance. Notice of each Purchaser's intention to
accept, in whole or in part, any Offer made pursuant to Section 6.01 shall be
evidenced by a writing signed by such Purchaser and delivered to the Company
prior to the end of the 20-day period of such Offer, setting forth such of the
Purchaser's Basic Amount as such Purchaser elects to purchase and, if such
Purchaser shall elect to purchase all of its Basic Amount, such
Undersubscription Amount as such Purchaser shall elect to purchase (the "Notice
of Acceptance"). If the Basic Amounts subscribed for by all Purchasers are less
than the total Offered Securities, then each Purchaser who has set forth
Undersubscription Amounts in its Notice of Acceptance shall be entitled to
purchase, in addition to the Basic Amounts subscribed for, all Undersubscription
Amounts it has subscribed for; provided, however, that should the
Undersubscription Amounts subscribed for exceed the difference between the
Offered Securities and the Basic Amounts subscribed for (the "Available
Undersubscription Amount"), each Purchaser who has subscribed for any
Undersubscription Amount shall be entitled to purchase only that portion of the
Available Undersubscription Amount as the Undersubscription Amount subscribed
for by such Purchaser bears to the total Undersubscription Amounts subscribed
for by all Purchasers, subject to rounding by the Board of Directors to the
extent it reasonably deems necessary.
6.03 Conditions to Acceptances and Purchase.
(a) Permitted Sales of Refused Securities. In the event that
Notices of Acceptance are not given by the Purchasers in respect of all the
Offered Securities, the Company shall have seventy-five (75) days from the
expiration of the period set forth in Section 6.01 to close the sale of all or
any part of such Offered Securities as to which a Notice of Acceptance has not
been given by the Purchasers (the "Refused Securities") to the Person or Persons
specified in the Offer, but only for cash and/or debt securities and otherwise
in all respects upon terms and conditions, including, without limitation, unit
price and interest rates, which are no more favorable, in the aggregate, to such
other Person or Persons or less favorable to the Company than those set forth in
the Offer.
(b) Reduction in Amount of Offered Securities. In the event
the Company shall propose to sell less than all the Refused Securities (any such
sale to be in the manner and on the terms specified in Section 6.03(a) above),
then each Purchaser may, at its sole option and in its sole discretion, reduce
the number, or other units, of the Offered Securities specified in its
respective Notices of Acceptance to an amount which shall be not less than the
amount of the Offered Securities which the Purchaser elected to purchase
pursuant to Section 6.02 multiplied by a fraction, (i) the numerator of which
shall be the amount of Offered Securities which the Company actually proposes to
sell, and (ii) the denominator of which shall be the amount of all Offered
Securities. In the event that any Purchaser so elects to reduce the number or
amount of Offered Securities specified in its respective Notices of Acceptance,
the Company may not sell or otherwise dispose of more than the reduced amount of
the Offered Securities until such securities have again been offered to the
Purchasers in accordance with Section 6.01.
(c) Closing. Upon the closing, which shall include full
payment to the Company, of the sale to such other Person or Persons of all or
less than all the Refused Securities, the Purchasers shall purchase from the
Company, and the Company shall sell to the Purchasers, the number of Offered
Securities specified in the Notices of Acceptance, as reduced pursuant to
Section 6.03(b) if the Purchasers have so elected, upon the terms and conditions
specified in the Offer. The purchase by the Purchasers of any Offered Securities
is subject in all cases to the preparation, execution and delivery by the
Company and the Purchasers of a purchase agreement relating to such Offered
Securities reasonably satisfactory in form and substance to the Purchasers and
their respective counsel.
6.04 Further Sale. In each case, any Offered Securities not purchased
by the Purchasers or other Person or Persons in accordance with Section 6.03 may
not be sold or otherwise disposed of until they are again offered to the
Purchasers under the procedures specified in Sections 6.01, 6.02 and 6.03.
6.05 Exception. The rights of the Purchasers under this Article VI
shall not apply to:
(a) Common Stock issued as a stock dividend to holders of
Common Stock or upon any subdivision or combination of shares of Common Stock,
(b) Series A Preferred Stock issued as a dividend to holders
of Series A Preferred Stock upon any subdivision or combination of shares of
Series A Preferred Stock,
(c) the Converted Shares,
(d) the Additional Preferred Shares,
(e) any Reserved Employee Shares,
(f) Common Stock issued pursuant to the exercise or conversion
of options, warrants and convertible securities outstanding on the Initial
Closing Date,
(g) Common Stock issued pursuant to the acquisition of another
entity by the Company by merger (whereby the Company or its shareholders
immediately prior to such merger own no less than 51% of the voting power of the
acquired entity or the surviving corporation after such merger) or purchase of
substantially all of its stock or assets (including the Common Stock to be
issued to Argosy Health, L.P.), and
(h) any securities issued pursuant to a firm commitment
underwritten public offering.
ARTICLE VII
DEFINITIONS AND ACCOUNTING TERMS
7.01 Certain Defined Terms. As used in this Agreement, the following
terms shall have the following meanings (such meanings to be equally applicable
to both the singular and plural forms of the terms defined):
"Additional Preferred Shares" shall have the meaning attributable to it
in Section 1.02 of the Agreement.
"Agreement" means this Series A Convertible Preferred Stock Purchase
Agreement as from time to time amended and in effect between the parties,
including all Exhibits and Schedules hereto.
"Benefit Arrangement" means each employment, severance or other similar
contract, arrangement or policy (written or oral) and each plan or arrangement
(written or oral) providing for severance benefits, insurance coverage
(including any self-insured arrangements), workers' compensation, disability
benefits, supplemental unemployment benefits, vacation benefits, retirement
benefits or for deferred compensation, profit-sharing, bonuses, stock options,
stock appreciation rights or other forms of incentive compensation or
post-retirement insurance, compensation or benefits which (i) is not an Employee
Plan and (ii) covers any employee or former employee of the Company.
"Board of Directors" means the board of directors of the Company as
constituted from time to time.
"Common Stock" includes (a) the Company's Common Stock, $.001 par
value, as authorized on the date of this Agreement, (b) any other capital stock
of any class or classes (however designated) of the Company, authorized on or
after the date hereof, the holders of which shall have the right, without
limitation as to amount, either to all or to a share of the balance of current
dividends and liquidating dividends after the payment of dividends and
distributions on any shares entitled to preference, and the holders of which
shall ordinarily, in the absence of contingencies or in the absence of any
provision to the contrary in the Company's Charter be entitled to vote for the
election of a majority of directors of the Company (even though the right so to
vote has been suspended by the happening of such a contingency or provision),
and (c) any other securities into which or for which any of the securities
described in (a) or (b) may be converted or exchanged pursuant to a plan of
recapitalization, reorganization, merger, sale of assets or otherwise.
"Company" means and shall include Occupational Health + Rehabilitation
Inc, a Delaware corporation and its predecessors, successors and assigns.
"Consolidated" and "consolidating" when used with reference to any term
defined herein mean that term as applied to the accounts of the Company and its
Subsidiaries consolidated in accordance with generally accepted accounting
principles.
"Converted Shares" shall have that meaning attributable to it in
Section 1.03 of this Agreement.
"Employee Plan" means each "employee benefit plan," as such term is
defined in Section 3(3) of ERISA, that (A)(i) is subject to any provision of
ERISA and (ii) is maintained or contributed to by the Company, or (B)(i) is
subject to any provision of Title IV of ERISA and (ii) is maintained or
contributed to by any of the Company's ERISA Affiliates.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended.
"ERISA Affiliate" of any entity means any other entity that, together
with such entity, would be treated as a single employer under Section 414 of the
Code.
"Initial Closing" and "Initial Closing Date" shall have the respective
meanings attributable to them in Section 1.05 of this Agreement.
"Initial Preferred Shares" shall have the meaning attributable to it in
Section 1.01 of this Agreement.
"Multiemployer Plan" means each Employee Plan that is a multiemployer
plan, as defined in Section 3(37) of ERISA.
"Person" means an individual, corporation, partnership, joint venture,
trust, limited liability company or unincorporated organization, or a government
or any agency or political subdivision thereof.
"Purchased Shares" shall have that meaning attributable to it in
Section 1.02 of this Agreement.
"Purchaser" and "Purchasers" shall have that meaning attributable to it
in Section 1.01 of this Agreement and shall include the original Purchasers and
also any other holder of any of the Shares.
"Reserved Employee Shares" shall have the meaning attributable to it in
Section 4.12 of this Agreement.
"Securities Act" means the Securities Act of 1933, or any similar
Federal statute, and the rules and regulations of the Securities and Exchange
Commission (or of any other Federal agency then administering the Securities
Act) thereunder, all as the same shall be in effect at the time.
"Series A Preferred Stock" means the Series A Convertible Preferred
Stock of the Company, $.001 par value, having the rights, powers, privileges and
preferences set forth in Exhibit 1.01A hereto.
"Shares" shall have that meaning attributable to it in Section 1.04 of
this Agreement.
"Subsidiary" or "Subsidiaries" means any Person of which the Company
and/or any of its other subsidiaries (as herein defined) directly or indirectly
owns at the time at least fifty percent (50%) of the outstanding equity interest
of such Person other than directors' qualifying shares.
7.02 Accounting Terms. All accounting terms not specifically defined
herein shall be construed in accordance with generally accepted accounting
principles consistently applied, and all financial data submitted pursuant to
this Agreement shall be prepared in accordance with such principles.
ARTICLE VIII
MISCELLANEOUS
8.01 No Waiver; Cumulative Remedies. No failure or delay on the part of
any party to this Agreement in exercising any right, power or remedy hereunder
shall operate as a waiver thereof; nor shall any single or partial exercise of
any such right, power or remedy preclude any other or further exercise thereof
or the exercise of any other right, power or remedy hereunder. The remedies
herein provided are cumulative and not exclusive of any remedies provided by
law.
8.02 Amendments, Waivers and Consents. Any provision in this Agreement
to the contrary notwithstanding, and except as hereinafter provided, changes in
or additions to this Agreement may be made, and compliance with any covenant or
provision set forth herein may be omitted or waived, if the Company (i) shall
obtain consent thereto in writing from the holder or holders of at least a
majority in interest of the Shares, and (ii) shall deliver copies of such
consent in writing to any holders who did not execute such consent. Any waiver
or consent may be given subject to satisfaction of conditions stated therein and
any waiver or consent shall be effective only in the specific instance and for
the specific purpose for which given. Notwithstanding anything to the contrary
contained herein, any amendment which (x) increases any Purchaser's obligations
hereunder or increases the purchase price or number of Additional Preferred
Shares, or (y) grants to any one or more Purchasers any rights more favorable
than any rights granted to all other Purchasers hereunder, must be approved by
each Purchaser so as to be effective against such Purchaser.
8.03 Addresses for Notices. All notices, requests, demands and other
communications provided for hereunder shall be in writing (including electronic
communication) and delivered personally, or by overnight courier, or by
facsimile or other electronic means or sent by certified or registered United
States mail, postage prepaid, return receipt requested and addressed as follows:
If to any holder of the Shares: at such holder's address for notice as
set forth in the register maintained by the Company, or, as to each of the
foregoing, at the addresses set forth on Schedule I hereto or at such other
address as shall be designated by such Person in a written notice to the other
parties complying as to delivery with the terms of this Section, with a copy to
Leslie E. Davis, Esq., Testa, Hurwitz & Thibeault, LLP, High Street Tower, 125
High Street, Boston, Massachusetts 02110.
If to the Company: at the address set forth on page 1 hereof, or at
such other address as shall be designated by the Company in a written notice to
the other parties complying as to delivery with the terms of this Section, with
a copy to Donna L. Brooks, Esq., Shipman & Goodwin LLP, One American Row,
Hartford, CT 06103.
All such notices, requests, demands and other communications shall be
effective three days after deposited in the mails or upon receipt when delivered
electronically, by facsimile, by hand or by overnight courier, respectively,
addressed as aforesaid, unless otherwise provided herein.
8.04 Costs, Expenses and Taxes. The Company agrees to pay in connection
with the preparation, execution and delivery of this Agreement and the issuance
of the Purchased Shares, the reasonable fees and out-of-pocket expenses
collectively (not to exceed $25,000) of Testa, Hurwitz & Thibeault, LLP, special
counsel for the Purchasers, and other consultants. In addition, the Company
shall pay any and all stamp and other taxes payable or determined to be payable
in connection with the execution and delivery of this Agreement, the issuance of
the Purchased Shares and the other instruments and documents to be delivered
hereunder or thereunder, and agrees to save the Purchasers harmless from and
against any and all liabilities with respect to or resulting from any delay in
paying or omission to pay such taxes.
8.05 Binding Effect; Assignment. This Agreement shall be binding upon
and inure to the benefit of the Company and the Purchasers and their respective
heirs, successors and assigns, except that the Company shall not have the right
to delegate any of its respective obligations hereunder or to assign its
respective rights hereunder or any interest herein without the prior written
consent of the holders of at least a majority in interest of the Shares.
8.06 Survival of Representations and Warranties. All representations
and warranties made in this Agreement, the Shares, or any other instrument or
document delivered in connection herewith or therewith, shall survive the
execution and delivery hereof or thereof.
8.07 Prior Agreements. This Agreement constitutes the entire agreement
between the parties and supersedes any prior understandings or agreements
concerning the purchase and sale of the Shares.
8.08 Severability. The provisions of this Agreement and the terms of
the Series A Preferred Stock are severable and, in the event that any court of
competent jurisdiction shall determine that any one or more of the provisions or
part of a provision contained in this Agreement or the Series A Preferred Stock
shall, for any reason, be held to be invalid, illegal or unenforceable in any
respect, such invalidity, illegality or unenforceability shall not affect any
other provision or part of a provision of this Agreement or the terms of the
Series A Preferred Stock; but this Agreement and the terms of the Series A
Preferred Stock shall be reformed and construed as if such invalid or illegal or
unenforceable provision, or part of a provision, had never been contained
herein, and such provisions or part reformed so that it would be valid, legal
and enforceable to the maximum extent possible.
8.09 Governing Law. This Agreement shall be construed and enforced in
accordance with and governed by the General Corporation Law of the State of
Delaware as to matters within the scope thereof, and as to all other matters
shall be governed by and construed in accordance with the internal laws of the
Commonwealth of Massachusetts.
8.10 Headings. Article, Section and subsection headings in this
Agreement are included herein for convenience of reference only and shall not
constitute a part of this Agreement for any other purpose.
8.11 Counterparts. This Agreement may be executed in any number of
counterparts, all of which taken together shall constitute one and the same
instrument, and any of the parties hereto may execute this Agreement by signing
any such counterpart.
8.12 Further Assurances. From and after the date of this Agreement,
upon the request of any Purchaser or the Company, the Company and the Purchasers
shall execute and deliver such instruments, documents and other writings as may
be reasonably necessary or desirable to confirm and carry out and to effectuate
fully the intent and purposes of this Agreement and all ancillary documents,
instruments or certificates delivered therewith and the Shares.
IN WITNESS WHEREOF, the parties hereto have caused this Series A
Preferred Stock Purchase Agreement to be executed as of the date first above
written.
THE COMPANY: PURCHASERS:
OCCUPATIONAL HEALTH + CAHILL, WARNOCK STRATEGIC
REHABILITATION INC PARTNERS FUND, L.P.
By: Cahill, Warnock Strategic Partners, L.P.
By: /s/ John C. Garbarino By: /s/ Edward L. Cahill
------------------------- ---------------------------------
John C. Garbarino Title: General Partner
President and Chief -----------------------------
Executive Officer STRATEGIC ASSOCIATES, L.P.
By: Cahill, Warnock & Company, LLC
By: /s/ Edward L. Cahill
--------------------------------------
Title: Managing Member
-----------------------------------
AXA U.S. GROWTH FUND, LLC
By: /s/ Thomas G. McKinley
--------------------------------------
Title: Managing Member
--------------------------------------
U.S. GROWTH FUND PARTNERS, C.V.
By: /s/ Thomas G. McKinley
--------------------------------------
Title: General Partner
--------------------------------------
DOUBLE BLACK DIAMOND II, LLC
By: /s/ Thomas G. McKinley
--------------------------------------
Title: Managing Member
--------------------------------------
ALMANORI LIMITED
By: /s/ Thomas McKinley
--------------------------------------
Title: Attorney-in-Fact
--------------------------------------
THE VENTURE CAPITAL FUND OF
NEW ENGLAND III, L.P.
By: FH & Co. III, L.P., Its General Partner
By: /s/ Kevin J. Dougherty
--------------------------------------
BANCBOSTON VENTURES, INC.
By: /s/ Marcia T. Bates
--------------------------------------
VENROCK ASSOCIATES
By: /s/ Anthony Evnin
--------------------------------------
VENROCK ASSOCIATES II, L.P.
By: /s/ Anthony Evnin
--------------------------------------
ASSET MANAGEMENT ASSOCIATES,
1989, L.P.
By: AMC Partners 89, L.P., General Partner
By: /s/ Craig C. Taylor
--------------------------------------
OCCUPATIONAL HEALTH + REHABILITATION INC
SCHEDULE I
<TABLE>
<CAPTION>
Name and Initial Additional
Address of Purchasers Preferred Shares Purchase Price Preferred Shares Purchase Price
- --------------------- ---------------- -------------- ---------------- --------------
<S> <C> <C> <C> <C>
Cahill, Warnock Strategic Partners Fund, 679,042 $4,074,252 119,750 $ 718,500
L.P.
10 North Calvert Street
Suite 735
Baltimore, Maryland 21202
Attn: Mr. Edward L. Cahill
Strategic Associates, L.P. 37,625 225,750 6,750 40,500
10 North Calvert Street
Suite 735
Baltimore, Maryland 21202
Attn: Mr. Edward L. Cahill
Axa U.S. Growth Fund, LLC 86,667 520,002 15,250 91,500
c/o Partech International
50 California Street
Suite 3200
San Francisco, CA 94111
Attn: Mr. Thomas G. McKinley
U.S. Growth Fund Partners, C.V. 173,334 1,040,004 30,500 183,000
c/o Partech International
50 California Street
Suite 3200
San Francisco, CA 94111
Attn: Mr. Thomas G. McKinley
Double Black Diamond II, LLC 16,667 100,002 3,000 18,000
c/o Partech International
50 California Street
Suite 3200
San Francisco, CA 94111
Attn: Mr. Thomas G. McKinley
Name and Initial Additional
Address of Purchasers Preferred Shares Purchase Price Preferred Shares Purchase Price
- --------------------- ---------------- -------------- ---------------- --------------
Almanori Limited 6,665 39,990 1,250 7,500
c/o Partech International
50 California Street
Suite 3200
San Francisco, CA 94111
Attn: Mr. Thomas G. McKinley
Asset Management Associates, 1989, L.P. 83,333 499,998 14,500 87,000
2275 East Bayshore Road
Palo Alto, CA 94303
Attn: Mr. Craig C. Taylor
Venrock Associates 66,667 400,002 11,800 70,800
Room 5508
30 Rockefeller Plaza
New York, New York 10112
Attn: Mr. Patrick F. Latterell
Venrock Associates II, L.P. 100,000 600,000 17,700 106,200
Room 5508
30 Rockefeller Plaza
New York, New York 10112
Attn: Mr. Patrick F. Latterell
The Venture Capital Fund of New England, 66,667 400,002 11,750 70,500
III, L.P.
160 Federal Street, 23rd Floor
Boston, MA 02110
Attn: Mr. Kevin J. Dougherty
BancBoston Ventures, Inc. 100,000 600,000 17,750 106,500
100 Federal Street
Boston, MA 02110
Attn: Ms. Marcia T. Bates
TOTAL 1,416,667 $8,500,002 250,000 $1,500,000
</TABLE>
EXHIBIT 5
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (the "Agreement"), dated as of
November 6, 1996, is by and among Occupational Health + Rehabilitation Inc (the
"Company"), and the parties listed under the heading of Investors on Schedule A
attached hereto (the "Investors").
WHEREAS, the Investors and the Company are, on the date hereof,
entering into a Series A Convertible Preferred Stock Purchase Agreement (the
"Series A Purchase Agreement") pursuant to which the Company is issuing to the
Investors up to 1,666,667 shares of Series A Convertible Preferred Stock, par
value $.001 per share, of the Company (the "Series A Preferred Shares"); and
WHEREAS, the Company has agreed to grant to the Investors, as an
inducement to enter into the Series A Purchase Agreement, certain rights with
respect to the Series A Preferred Shares;
NOW, THEREFORE, in consideration of the premises set forth herein, the
parties hereto hereby agree as follows:
1. Certain Definitions. As used in this Agreement, the following terms
shall have the following respective meanings:
"Commission" shall mean the Securities and Exchange
Commission, or any other federal agency at the time administering the Securities
Act.
"Common Stock" shall mean the Common Stock, $.001 par value,
of the Company, as constituted as of the date of this Agreement.
"Conversion Shares" shall mean shares of Common Stock issued
or issuable upon conversion of the Series A Preferred Shares, and any shares of
capital stock received in respect thereof.
"Exchange Act" shall mean the Securities Exchange Act of 1934,
as amended, or any similar federal statute, and the rules and regulations of the
Commission thereunder, all as the same shall be in effect at the time.
"Holder" shall mean the person who is the then record owner of
Restricted Stock.
"Registrable Shares" shall mean the shares of Restricted Stock.
"Registration Expenses" shall mean the expenses so described in Section
8.
"Restricted Stock" shall mean the Conversion Shares, excluding
shares which have been (a) registered under the Securities Act pursuant to an
effective registration statement filed thereunder and disposed of in accordance
with the registration statement covering them or (b) publicly sold pursuant to
Rule 144 under the Securities Act.
"Securities Act" shall mean the Securities Act of 1933, as
amended, or any similar federal statute, and the rules and regulations of the
Commission thereunder, all as the same shall be in effect at the time.
2. Restrictive Legend.
Each certificate representing the Restricted Stock shall bear a legend
stating in substance:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933 OR APPLICABLE STATE SECURITIES LAWS.
THESE SECURITIES HAVE BEEN ACQUIRED FOR INVESTMENT AND NOT WITH A VIEW
TO DISTRIBUTION OR RESALE, AND MAY NOT BE SOLD, MORTGAGED, PLEDGED,
HYPOTHECATED OR OTHERWISE TRANSFERRED [FOR NON U.S. PERSONS ADD: IN THE
UNITED STATES OR TO U.S. PERSONS] WITHOUT AN EFFECTIVE REGISTRATION
STATEMENT FOR SUCH SECURITIES UNDER THE SECURITIES ACT OF 1933 AND
APPLICABLE STATE SECURITIES LAWS, OR THE AVAILABILITY OF AN EXEMPTION
FROM THE REGISTRATION PROVISIONS OF THE SECURITIES ACT OF 1933 AND
APPLICABLE STATE SECURITIES LAWS.
A certificate shall not be required to bear such legend if, in the
opinion of counsel satisfactory to the Company, the securities represented
thereby may be publicly sold without registration under the Securities Act.
3. Notice of Proposed Transfer.
Prior to any proposed transfer of any Restricted Stock (other than
under the circumstances described in Section 4, 5 or 6), the Holder thereof
shall give written notice to the Company of its intention to effect such
transfer. Each such notice shall describe the manner of the proposed transfer
and, if requested by the Company, shall be accompanied by an opinion of counsel
satisfactory to the Company to the effect that the proposed transfer may be
effected without registration under the Securities Act, whereupon the Holder of
such stock shall be entitled to transfer such stock in accordance with the terms
of its notice; provided, however, that no such opinion of counsel shall be
required for a distribution by a partnership to its partners of such stock in
respect of such interest. Each certificate for shares of Restricted Stock
transferred as above provided shall bear the legend set forth in Section 2,
except that such certificate shall not bear such legend if (i) such transfer is
in accordance with the provisions of Rule 144 (or any other rule permitting
public sale without registration under the Securities Act) or (ii) the opinion
of counsel referred to above is to the further effect that the transferee and
any subsequent transferee (other than an affiliate of the Company) would be
entitled to transfer such securities in a public sale without registration under
the Securities Act. The restrictions provided for in this Section 3 shall not
apply to securities which are not required to bear the legend prescribed by
Section 2 in accordance with the provisions of that Section.
4. Required Registration.
(a) At any time prior to November 6, 2001, the Holders of
Registrable Shares constituting at least 51% of the total shares of Registrable
Shares then outstanding may request the Company to register under the Securities
Act all or any portion of the Registrable Shares held by such requesting Holder
or Holders for sale in the manner specified in such notice, provided that the
Registrable Shares for which registration has been requested shall constitute at
least 25% of the total Registrable Shares originally issued if such Holder or
Holders shall request the registration of less than all Registrable Shares then
held by such Holder or Holders. Notwithstanding anything to the contrary
contained herein, no request may be made under this Section 4 within 180 days
after the effective date of
a registration statement filed by the Company covering a firm commitment
underwritten public offering in which the Holders of Registrable Shares shall
have been entitled to join pursuant to Section 5 or 6 and in which there shall
have been effectively registered all Registrable Shares to which registration
shall have been requested.
(b) Following receipt of any notice under this Section 4, the
Company shall immediately notify all Holders of Registrable Shares from whom
notice has not been received and shall use its reasonable best efforts to
register under the Securities Act, for public sale in accordance with the method
of disposition specified in such notice from requesting Holders, the number of
Registrable Shares specified in such notice (and in all notices received by the
Company from other Holders within 30 days after the giving of such notice by the
Company). If such method of disposition shall be an underwritten public
offering, the Holders of a majority of the Registrable Shares to be sold in such
offering may designate the managing underwriter of such offering, subject to the
approval of the Company, which approval shall not be unreasonably withheld or
delayed. The Company shall be obligated to register Registrable Shares pursuant
to this Section 4 on two occasions only, provided, however, that such obligation
shall be deemed satisfied only when a registration statement, which covers all
Registrable Shares specified in notices received as aforesaid and with respect
to which the request for registration has not been withdrawn and provides for
sale of such shares in accordance with the method of disposition specified by
the requesting Holders, shall have become effective and, if such method of
disposition is a firm commitment underwritten public offering, all such shares
shall have been sold pursuant thereto.
(c) The Company shall be entitled to include in any
registration statement referred to in this Section 4, for sale in accordance
with the method of disposition specified by the requesting Holders, shares of
Common Stock to be sold by the Company for its own account, except as and to the
extent that, in the opinion of the managing underwriter (if such method of
disposition shall be an underwritten public offering), such inclusion would
adversely affect the marketing of the Registrable Shares to be sold. Except for
registration statements on Form S-4, S-8 or any successor thereto, the Company
will not file with the Commission any other registration statement with respect
to its Common Stock, whether for its own account or that of other stockholders,
from the date of receipt of a notice from requesting Holders pursuant to this
Section 4 (the "Demand Holders")until the first to occur of (i) withdrawal of
such registration statement or (ii) the effectiveness of such registration
statement unless such registration statement relates to a firm commitment
underwritten public offering, then the completion of the period of distribution
of the registration contemplated thereby; provided, however, that following
receipt of any notice under this Section 4, the Company shall immediately notify
all holders of the Company's Common Stock who have contractual rights to demand
registrations pursuant to the terms of any other registration rights agreement
to which the Company is a party. Upon the written request of such demand rights
holders constituting the requisite percentages of shares to initiate a demand
under such other registration rights agreement specifying the number of shares
to be registered, which request shall be deemed to be an exercise of a demand
right under the terms of the registration rights agreement to which they are
parties, such demand rights holders shall be deemed to be Demand Holders and the
shares requested to be registered by such Demand Holders shall be deemed to be
Registrable Shares, in each case, for purposes of Section 4(d), provided that
such written request is received by the Company within 30 days of the giving of
notice by the Company.
(d) If, in the opinion of the managing underwriter, the
inclusion in a registration statement to be filed under this Section of any
shares other than the Registrable Shares requested to be registered under this
Section by Demand Holders would adversely affect the marketing of such shares,
then, in such event (a) such other shares may be included in such registration
only if all of the Registrable Shares requested to be registered by Demand
Holders hereunder are included, and (b) such
other shares shall be subject to the provisions of Section 5 and the first
sentence of Section 4(c) as to priority of inclusion. If, in the opinion of the
managing underwriter, the inclusion of the Registrable Shares requested to be
registered under this Section by Demand Holders would adversely affect the
marketing of such Registrable Shares, Registrable Shares to be sold by the
Demand Holders shall be excluded in such manner that the Registrable Shares to
be excluded shall first be the Registrable Shares of Demand Holders who are not
affiliates (as defined in Rule 144 of the Securities Act) of the Company (the
"Affiliate Holders") and whose Registrable Shares are then saleable under Rule
144(e) or Rule 144(k) under the Securities Act and then pro rata among them, and
if further reduction is necessary, shall next be pro rata among the remaining
Registrable Shares of the Demand Holders who are Affiliate Holders or whose
Registrable Shares are not then saleable under Rule 144(e) or Rule 144(k) ,
provided, however, that, notwithstanding anything in this Agreement to the
contrary, in respect of the first underwritten public offering following the
date of this Agreement, no reduction shall reduce the number of shares which may
be sold by requesting Holders to less than 25% of the shares to be sold in such
offering.
5. Incidental Registration.
If the Company at any time (other than pursuant to Section 4 or Section
6) proposes to register any of its securities under the Securities Act for sale
to the public, whether for its own account or for the account of other
securityholders or both (except with respect to registration statements on Forms
S-4, S-8 or another form not available for registering the Restricted Stock for
sale to the public), each such time the Company will give written notice to all
Holders of outstanding Restricted Stock of its intention to do so. Upon the
written request of any such Holder received by the Company within 30 days of the
giving of any such notice by the Company to register any of such Holder's
Restricted Stock (which request shall state the intended method of disposition
thereof), the Company will use its reasonable best efforts to cause the
Restricted Stock as to which registration shall have been so requested to be
included in the securities to be covered by the registration statement proposed
to be filed by the Company, all to the extent requisite to permit the sale or
other disposition by the Holder (in accordance with such Holder's written
request) of such Restricted Stock so registered. In the event that any
registration pursuant to this Section 5 shall be, in whole or in part, an
underwritten public offering of Common Stock, the number of shares of Restricted
Stock to be included in such an underwriting may be reduced if and to the extent
that the managing underwriter shall be of the opinion that such inclusion would
adversely affect the marketing of the securities to be sold by the Company or
the requesting party therein or that such reduction is otherwise advisable,
provided, however, that after any shares to be sold by holders that do not have
contractual rights to have shares included in such registration have been
excluded, shares to be sold by the Holders shall be excluded in such manner that
the shares to be excluded shall first be the shares of selling Holders and other
requesting holders who, in each case, are not Affiliate Holders and whose shares
are then saleable under Rule 144(e) or Rule 144(k) under the Securities Act and
then pro rata among them, and if further reduction is necessary, shall next be
pro rata among the remaining shares of the selling Holders and other requesting
holders who are Affiliate Holders or whose shares are not then saleable under
Rule 144(e) or Rule 144(k), unless such registration is pursuant to the exercise
of a demand right of another securityholder, in which event such securityholder
shall be entitled to include all shares it desires to have so included before
any shares of Restricted Stock or shares of any other holder are included
therein and provided, however, that, notwithstanding anything in this Agreement
to the contrary, in respect of the first underwritten public offering following
the date of this Agreement, no reduction shall reduce the number of shares which
may be sold by requesting Holders to less than 25% of the shares to be sold in
such offering.
6. Registration on Form S-3.
If at any time prior to November 6, 2001 (i) a Holder or Holders of
Registrable Shares request that the Company file a registration statement on
Form S-3 or any successor thereto for a public offering of all or any portion of
the Registrable Shares held by such requesting Holder or Holders, the reasonably
anticipated aggregate price to the public of at least $500,000, and (ii) the
Company is a registrant entitled to use Form S-3 or any successor thereto to
register such shares, then the Company shall use its reasonable best efforts to
register under the Securities Act on Form S-3 or any successor thereto, for
public sale in accordance with the method of disposition specified in such
notice, the number of Registrable Shares specified in such notice. Whenever the
Company is required by this Section 6 to use its reasonable best efforts to
effect the registration of Registrable Shares, each of the procedures and
requirements of Section 4 (including but not limited to the requirement that the
Company notify all Holders of Registrable Shares from whom notice has not been
received and provide them with the opportunity to participate in the offering)
shall apply to such registration, provided, however, that there shall be up to
five (5) registrations on Form S-3 which may be requested and obtained under
this Section 6, and the Company shall not be obligated to register Registrable
Shares pursuant to this Section 6 on more than one occasion per twelve (12)
month period, and provided, further, however, that the requirements contained in
the first sentence of Section 4(a) shall not apply to any registration on Form
S-3 which may be requested and obtained under this Section 6.
7. Registration Procedures.
If and whenever the Company is required by the provisions of Section 4,
5 or 6 to use its reasonable best efforts to effect the registration of any
shares of Restricted Stock under the Securities Act, the Company will, as
expeditiously as possible:
(a) prepare and file with the Commission a registration
statement (which, in the case of an underwritten public offering pursuant to
Section 4, shall be on Form S-1 or other form of general applicability
satisfactory to the managing underwriter selected as therein provided) with
respect to such securities and use its reasonable best efforts to cause such
registration statement to become and remain effective for the period of the
distribution contemplated thereby (determined as hereinafter provided);
(b) prepare and file with the Commission such amendments and
supplements to such registration statement and the prospectus used in connection
therewith as may be necessary to keep such registration statement effective for
the period specified in paragraph (a) above and comply with the provisions of
the Securities Act with respect to the disposition of all Restricted Stock
covered by such registration statement in accordance with the sellers' intended
method of disposition set forth in such registration statement for such period;
(c) furnish to each seller of Restricted Stock and to each
underwriter such number of copies of the registration statement and the
prospectus included therein (including each preliminary prospectus) as such
persons reasonably may request in order to facilitate the public sale or other
disposition of the Restricted Stock covered by such registration statement;
(d) use its reasonable best efforts to register or qualify the
Restricted Stock covered by such registration statement under the securities or
"blue sky" laws of such jurisdictions as the sellers of Restricted Stock or, in
the case of an underwritten public offering, the managing underwriter reasonably
shall request, provided, however, that the Company shall not for any such
purpose be required to qualify generally to transact business as a foreign
corporation in any jurisdiction where it is not so qualified or to consent to
general service of process in any such jurisdiction;
(e) use its reasonable best efforts to list the Restricted
Stock covered by such registration statement with any securities exchange on
which the Common Stock is then listed;
(f) immediately notify each seller of Restricted Stock and
each underwriter under such registration statement, at any time when a
prospectus relating thereto is required to be delivered under the Securities
Act, of the happening of any event of which the Company has knowledge as a
result of which the prospectus contained in such registration statement, as then
in effect, includes an untrue statement of a material fact or omits to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading in light of the circumstances then existing, and promptly
prepare and furnish to such seller a reasonable number of copies of a prospectus
supplemented or amended so that, as thereafter delivered to the purchasers of
such Restricted Stock, such prospectus shall not include an untrue statement of
a material fact or omit to state a material fact required to be stated therein
or necessary to make the statements therein not misleading in light of the
circumstances then existing;
(g) if the offering is underwritten and at the request of any
seller of Restricted Stock as provided herein, use its reasonable best efforts
to furnish on the date that Restricted Stock is delivered to the underwriters
for sale pursuant to such registration: (i) an opinion dated such date of
counsel representing the Company for the purposes of such registration,
addressed to the underwriters and to such seller, stating that such registration
statement has become effective under the Securities Act and that (A) to the
knowledge of such counsel, no stop order suspending the effectiveness thereof
has been issued and no proceedings for that purpose have been instituted or are
pending or threatened under the Securities Act, (B) the registration statement,
the related prospectus and each amendment or supplement thereof comply as to
form in all material respects with the requirements of the Securities Act
(except that such counsel need not express any opinion as to financial
statements, schedules and other financial or statistical information contained
therein) and (C) to such other effects as reasonably may be requested by counsel
for the underwriters or by such seller or its counsel; and (ii) a letter dated
such date from the independent public accountants retained by the Company,
addressed to the underwriters and to such seller, stating that they are
independent public accountants within the meaning of the Securities Act and
that, in the opinion of such accountants, the financial statements of the
Company included in the registration statement or the prospectus, or any
amendment or supplement thereof, comply as to form in all material respects with
the applicable accounting requirements of the Securities Act, and such letter
shall additionally cover such other financial matters (including information as
to the period ending no more than five business days prior to the date of such
letter) with respect to such registration as such underwriters reasonably may
request;
(h) make available for inspection by each seller of Restricted
Stock, any underwriter participating in any distribution pursuant to such
registration statement, and any attorney, accountant or other agent retained by
such seller or underwriter, all financial and other records, pertinent corporate
documents and properties of the Company, and cause the Company's officers,
directors and employees to supply all information reasonably requested by any
such seller, underwriter, attorney, accountant or agent in connection with such
registration statement;
(i) cooperate with the selling holders of Restricted Stock and
the managing underwriters, if any, to facilitate the timely preparation and
delivery of certificates representing Restricted Stock to be sold, such
certificates to be in such denominations and registered in such names as such
holders or the managing underwriters may request at least two business days
prior to any sale of Restricted Stock; and
(j) permit any holder of Restricted Stock which holder, in the
sole and exclusive judgment, exercised in good faith, of such holder, might be
deemed to be a controlling person of the Company, to participate in good faith
in the preparation of such registration or comparable statement and to require
the insertion therein of material, furnished to the Company in writing, which in
the reasonable judgment of such holder and its counsel should be included.
For purposes of Section 7(a) and 7(b) and of Section 4(c), the period
of distribution of Restricted Stock included therein shall be deemed to extend
until the first to occur of (i) each underwriter's completion of the
distribution of all securities purchased by it, and (ii) one hundred and twenty
(120) days.
In connection with each registration hereunder, the sellers of
Restricted Stock will furnish to the Company in writing such information with
respect to themselves and the proposed distribution by them as reasonably shall
be necessary in order to assure compliance with federal and applicable state
securities laws.
In connection with each registration pursuant to Section 4, 5 or 6
covering an underwritten public offering, the Company and each seller agree to
enter into a written agreement with the managing underwriter selected in the
manner herein provided in such form and containing such provisions as are
customary in the securities business for such an arrangement between such
underwriter and companies of the Company's size and investment stature.
No Holder of shares of Restricted Stock included in a registration
statement shall (until further notice) effect sales thereof after receipt of
telegraphic or written notice from the Company to suspend sales to permit the
Company to correct or update a registration statement or prospectus; but the
obligations of the Company with respect to maintaining any registration
statement current and effective shall be extended by a period of days equal to
the period such suspension is in effect unless (i) such extension would result
in the Company's inability to use the financial statements in the registration
statement as initially filed and (ii) such correction or update did not result
from the Company's acts or failures to act.
At the end of the period during which the Company is obligated to keep
the registration statement current and effective as described above (and any
extensions thereof required by the preceding sentence), the Holders of shares of
Restricted Stock included in the registration statement shall discontinue sales
of shares pursuant to such registration statement upon receipt of notice from
the Company of its intention to remove from registration the shares covered by
such registration statement which remain unsold, and such Holders shall notify
the Company of the number of shares registered which remain unsold immediately
upon receipt of such notice from the Company.
8. Expenses.
All expenses incurred by the Company in complying with Sections 4, 5
and 6, including, without limitation, all registration and filing fees, printing
expenses, fees and disbursements of counsel and independent public accountants
for the Company, fees and expenses (including counsel fees) incurred in
connection with complying with state securities or "blue sky" laws, fees of the
National Association of Securities Dealers, Inc., transfer taxes, fees of
transfer agents and registrars, costs of insurance, and fees and disbursements
of one counsel for the sellers of Restricted Stock, but excluding any Selling
Expenses, are called "Registration Expenses." All underwriting discounts and
selling commissions applicable to the sale of Restricted Stock are called
"Selling Expenses."
The Company will pay all Registration Expenses in connection with each
registration statement under Sections 4, 5 or 6. All Selling Expenses in
connection with each registration statement under Sections 4, 5 or 6 shall be
borne by the participating sellers in proportion to the number of shares sold by
each, or by such participating sellers other than the Company (except to the
extent the Company shall be a seller) as they may agree.
9. Indemnification and Contribution.
(a) In the event of a registration of any of the Restricted
Stock under the Securities Act pursuant to Sections 4, 5 or 6, the Company will
indemnify and hold harmless each seller of such Restricted Stock thereunder, its
officers and directors, each underwriter of such Restricted Stock thereunder and
each other person, if any, who controls such seller or underwriter within the
meaning of the Securities Act, against any losses, claims, damages or
liabilities, joint or several, to which such seller, officer, director,
underwriter or controlling person may become subject under the Securities Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon (i) any untrue statement or
alleged untrue statement of any material fact contained in any registration
statement under which such Restricted Stock was registered under the Securities
Act pursuant to Sections 4, 5 or 6, any preliminary prospectus or final
prospectus contained therein, or any amendment or supplement thereof, (ii) any
blue sky application or other document executed by the Company specifically for
that purpose or based upon written information furnished by the Company filed in
any state or other jurisdiction in order to qualify any or all of the Restricted
Stock under the securities laws thereof (any such application, document or
information herein called a "Blue Sky Application"), (iii) the omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, (iv) any violation
by the Company or its agents of any rule or regulation promulgated under the
Securities Act applicable to the Company or its agents and relating to action or
inaction required of the Company in connection with such registration, or (v)
any failure to register or qualify the Restricted Stock in any state where the
Company or its agents has affirmatively undertaken or agreed in writing that the
Company (the undertaking of any underwriter chosen by the Company being
attributed to the Company) will undertake such registration or qualification on
the seller's behalf (provided that in such instance the Company shall not be so
liable if it has undertaken its best efforts to so register or qualify the
Restricted Stock) and will reimburse each such seller, and such officer and
director, each such underwriter and each such controlling person for any legal
or other expenses reasonably incurred by them in connection with investigating
or defending any such loss, claim, damage, liability or action, provided,
however, that the Company will not be liable in any such case if and to the
extent that any such loss, claim, damage or liability arises out of or is based
upon an untrue statement or alleged untrue statement or omission or alleged
omission so made in conformity with information furnished by any such seller,
any such underwriter or any such controlling person in writing specifically for
use in such registration statement or prospectus, and except that the foregoing
indemnity agreement is subject to the condition that, insofar as it relates to
any such untrue statement or alleged untrue statement or omission or alleged
omission made in the preliminary prospectus but eliminated or remedied in the
amended prospectus on file with the Commission at the time the registration
statement becomes effective or in the amended prospectus filed with the
Commission pursuant to Rule 424(b) or in the prospectus subject to completion
and term sheet under Rule 434 of the Securities Act, which together meet the
requirements of Section 10(a) of the Securities Act (the "Final Prospectus"),
such indemnity agreement shall not inure to the benefit of any such seller, any
such underwriter or any such controlling person, if such seller, underwriter or
controlling person was obligated under law to provide a copy of the Final
Prospectus to the person or entity asserting the loss, liability, claim or
damage and failed to do so after sufficient copies of the Final Prospectus were
delivered by the Company to such seller, underwriter or controlling person in
sufficient time to deliver
the Final Prospectus within the period required by the Securities Act; provided,
further, that this indemnity shall not be deemed to relieve any underwriter of
any of its due diligence obligations.
(b) To the extent permitted by law, in the event of a
registration of any of the Restricted Stock under the Securities Act pursuant to
Section 4, 5 or 6, each seller of such Restricted Stock thereunder, severally
and not jointly, will indemnify and hold harmless the Company, each person, if
any, who controls the Company within the meaning of the Securities Act, each
officer of the Company who signs the registration statement, each director of
the Company, each underwriter and each person who controls any underwriter
within the meaning of the Securities Act, against all losses, claims, damages or
liabilities, joint or several, to which the Company or such officer, director,
underwriter or controlling person may become subject under the Securities Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in any registration statement
under which such Restricted Stock was registered under the Securities Act
pursuant to Section 4, 5 or 6, any preliminary prospectus or final prospectus
contained therein, or any amendment or supplement thereof, or arise out of or
are based upon the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading in the light of the circumstances in which they were made, and will
reimburse the Company and each such officer, director, underwriter or
controlling person for any legal or other expenses reasonably incurred by them
in connection with investigating or defending any such loss, claim, damage,
liability or action, provided, however, that such seller will be liable
hereunder in any such case if and only to the extent that any such loss, claim,
damage or liability arises out of or is based upon an untrue statement or
alleged untrue statement or omission or alleged omission so made in reliance
upon and in conformity with information pertaining to such seller furnished in
writing to the Company by such seller specifically for use in such registration
statement or prospectus, and provided, further, that the foregoing indemnity
agreement is subject to the condition that, insofar as it relates to any such
untrue statement or alleged untrue statement or omission or alleged omission
made in the preliminary prospectus but eliminated or remedied in the amended
prospectus on file with the Commission at the time the registration statement
becomes effective or in the Final Prospectus, such indemnity agreement shall not
inure to the benefit of the Company, any controlling person or any underwriter,
if the Company, underwriter or controlling person was obligated under law to
provide a copy of the Final Prospectus to the person or entity asserting the
loss, liability, claim or damage and failed to do so within the period required
by the Securities Act; provided, further, that this indemnity shall not be
deemed to relieve any underwriter of any of its due diligence obligations; and
provided, further, that in no event shall any indemnity by a seller under this
Section 9(b) exceed the gross proceeds from the offering received by such
seller.
(c) Promptly after receipt by an indemnified party hereunder
of notice of the commencement of any action, such indemnified party shall, if a
claim in respect thereof is to be made against the indemnifying party hereunder,
notify the indemnifying party in writing thereof, but the omission so to notify
the indemnifying party shall not relieve it from any liability which it may have
to such indemnified party other than under this Section 9 and shall only relieve
it from any liability which it may have to such indemnified party under this
Section 9 if and to the extent the indemnifying party is prejudiced by such
omission. In case any such action shall be brought against any indemnified party
and it shall notify the indemnifying party of the commencement thereof, the
indemnifying party shall be entitled to participate in and, to the extent it
shall wish, to assume and undertake the defense thereof with counsel
satisfactory to such indemnified party, and, after notice from the indemnifying
party to such indemnified party of its election so to assume and undertake the
defense thereof, the indemnifying party shall not be liable to such indemnified
party under this Section 9 for any legal expenses subsequently incurred by such
indemnified party in connection with the defense thereof other than reasonable
costs of investigation and of liaison with counsel so selected, provided,
however, that, if the defendants in any
such action include both the indemnified party and the indemnifying party and
counsel to the indemnified party shall have reasonably concluded that there are
reasonable defenses available to the indemnified party which are different from
or additional to those available to the indemnifying party or if the interests
of the indemnified party reasonably may be deemed to conflict with the interests
of the indemnifying party, the indemnified party shall have the right to select
a separate counsel and to assume such legal defenses and otherwise to
participate in the defense of such action, with the expenses and fees of such
separate counsel and other expenses related to such participation to be
reimbursed by the indemnifying party as incurred. No indemnifying party, in the
defense of any such claim or litigation, shall, except with the consent of each
indemnified party, consent to entry of any judgment or enter into any settlement
which does not include as an unconditional term thereof the giving by the
claimant or plaintiff to such indemnified party of a release from all liability
in respect to such claim or litigation.
(d) In order to provide for just and equitable contribution to
joint liability under the Securities Act in any case in which either (i) any
Holder of Restricted Stock exercising rights under this Agreement, or any
controlling person of any such Holder, makes a claim for Indemnification
pursuant to this Section 9 but it is judicially determined (by the entry of a
final judgment or decree by a court of competent jurisdiction and the expiration
of time to appeal or the denial of the last right of appeal) that such
indemnification may not be enforced in such case notwithstanding the fact that
this Section 9 provides for indemnification in such case, or (ii) contribution
under the Securities Act may be required on the part of any such selling Holder
or any such controlling person in circumstances for which indemnification is
provided under this Section 9; then, and in each such case, the Company and such
Holder will contribute to the aggregate losses, claims, damages or liabilities
to which they may be subject (after contribution from others) in such proportion
so that such Holder is responsible for the portion represented by the percentage
that the public offering price of its Restricted Stock offered by the
registration statement bears to the public offering price of all securities
offered by such registration statement, and the Company is responsible for the
remaining portion; provided, however, that, in any such case, (A) no such Holder
will be required to contribute any amount in excess of the public offering price
of all such Restricted Stock offered by it pursuant to such registration
statement; and (B) no person or entity guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) will be entitled to
contribution from any person or entity who was not guilty of such fraudulent
misrepresentation.
10. Changes in Common Stock or Series A Preferred Stock. If, and as
often as, there is any change in the Common Stock or Series A Preferred Stock by
way of a stock split, stock dividend, combination or reclassification, or
through a merger, consolidation, reorganization or recapitalization, or by any
other means, appropriate adjustment shall be made in the provisions hereof so
that the rights and privileges granted hereby shall continue with respect to the
Common Stock or Series A Preferred Stock as so changed.
11. Rule 144 Reporting. With a view to making available the benefits of
certain rules and regulations of the Commission which may at any time permit the
sale of the Restricted Stock to the public without registration, the Company
agrees to:
(a) make and keep public information available, as those terms
are understood and defined in Rule 144 under the Securities Act;
(b) use its reasonable best efforts to file with the
Commission in a timely manner all reports and other documents required of the
Company under the Securities Act and the Exchange Act; and
(c) furnish to each Holder of Restricted Stock forthwith upon
request a written statement by the Company as to its compliance with the
reporting requirements of such Rule 144 and of the Securities Act and the
Exchange Act, a copy of the most recent annual or quarterly report of the
Company, and such other reports and documents so filed by the Company as such
Holder may reasonably request in availing itself of any rule or regulation of
the Commission allowing such Holder to sell any Restricted Stock without
registration.
The Company shall not be required to effect a registration pursuant to
Section 4, 5 or 6 hereof for any Holder desiring to participate in such
registration who (a) may then dispose of all of its shares of Restricted Stock
pursuant to Rule 144 within the three-month period following such proposed
registration; and (b) holds less than 1% of the outstanding capital stock of the
Company (on a common stock-equivalent basis) at the time of such registration.
12. Representations and Warranties of the Company. The Company
represents and warrants to you as follows:
(a) The execution, delivery and performance of this Agreement
by the Company have been duly authorized by all requisite corporate action and
will not violate any provision of law, any order of any court or other agency of
government, the Charter or By-laws of the Company or any provision of any
indenture, agreement or other instrument to which it or any or its properties or
assets is bound, conflict with, result in a breach of or constitute (with due
notice or lapse of time or both) a default under any such indenture, agreement
or other instrument or result in the creation or imposition of any lien, charge
or encumbrance of any nature whatsoever upon any of the properties or assets of
the Company.
(b) This Agreement has been duly executed and delivered by the
Company and constitutes the legal, valid and binding obligation of the Company,
enforceable in accordance with its terms (subject, as to enforcement of
remedies, to applicable bankruptcy, reorganization, insolvency, moratorium and
similar laws affecting the rights of creditors generally), except to the extent
the indemnification provisions herein may be deemed not enforceable.
(c) The Company has not granted any registration rights, and
no such registration rights exist, that conflict with the registrations rights
set forth herein or contemplated hereby. All registration rights agreements
relating to the capital stock of the Company permit, or have been amended to
permit, the transactions and rights set forth herein and contemplated hereby.
13. Miscellaneous.
(a) All covenants and agreements contained in this Agreement
by or on behalf of any of the parties hereto shall bind and inure to the benefit
of the respective successors and assigns of the parties hereto (including
without limitation transferees of any of the shares of Restricted Stock),
whether so expressed or not, provided, however, that registration rights
conferred herein on the Holders of shares of Restricted Stock shall only inure
to the benefit of a transferee of shares of Restricted Stock if such transferee,
in the Company's reasonable judgment, is not a competitor of the Company, and
(i) there is transferred to such transferee at least 20% of the total shares of
Restricted Stock originally issued to the direct or indirect transferor of such
transferee by the Company or (ii) such transfer is made in connection with the
distribution by a Holder to such Holders beneficial owners (including, without
limitation, to partners of a general or limited partnership, shareholders of a
corporation and beneficiaries of a trust) of securities of the Holder or to the
partners or employees of the Holder, provided that at the Company's request, one
person shall be designated by such transferees as their agent for purposes of
their rights
hereunder and the provision of a notice by the Company to such agent in
accordance with the provisions hereof shall be deemed compliance with such
provisions for all such beneficial owners, partners and employees, and following
such request by the Company, the Company shall have no obligation under said
provisions with respect to such transferees until it shall have been notified of
the name and address of such agent.
(b) Each Holder agrees that it will provide notice to the
Company of any transfer or assignment of its rights or interests hereunder. Any
failure by the Company to fulfill a covenant or obligation hereunder which is
the direct result of a failure by a Holder to provide such notice shall not be
deemed to be a breach of any covenant or obligation hereunder.
Nothing in this Agreement shall be construed to create any rights or
obligations except among the parties hereto and their respective and permitted
successors and assigns, and no person or entity shall be regarded as a
third-party beneficiary of this Agreement.
Except as provided in Section 13(a) above, all notices, requests,
consents and other communications hereunder shall be in writing, shall be
addressed to the receiving party's address set forth below or to such other
address as a party may designate by notice hereunder, and shall be either (i)
delivered by hand, (ii) sent by overnight courier, with a receipt obtained or
(iii) sent by registered or certified mail, return receipt requested, postage
prepaid.
If to the Company: Occupational Health + Rehabilitation Inc.
175 Derby Street, Suite 36
Hingham, MA 02043-5048
Attn: Chief Executive Officer
If to an Investor: To such Investor at the address of such Investor
set forth in Schedule I to the Series A Purchase
Agreement
All notices, requests, consents and other communications hereunder
shall be deemed to have been given (i) if by hand, at the time of the delivery
thereof to the receiving party at the address of such party set forth above,
(ii) if sent by overnight courier, on the next business day following the day
such notice is delivered to the courier service, or (iii) if sent by registered
or certified mail, on the 5th business day following the day such mailing is
made.
(c) This Agreement shall be governed and construed in
accordance with the law of the Commonwealth of Massachusetts, without giving
effect to the conflict of laws principles thereof.
(d) This Agreement may be amended or modified, and any
provision hereof may be waived in whole or in part, but only by the written
consent of the Company and the holders of a majority of the aggregate number of
outstanding shares of Restricted Stock held of record by the Holders or their
permitted successors and assigns. This Agreement may be terminated by written
agreement of the Company and the holders of at least a majority of the aggregate
number of outstanding shares of Restricted Stock held of record by the Holders
or their permitted successors and assigns.
(e) This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
(f) Except as otherwise expressly provided herein, the
obligations of the Company to register shares of Restricted Stock under Section
4, 5 or 6 as provided herein shall terminate on November 6, 2001.
(g) If requested by the underwriter or underwriters for an
underwritten public offering of securities of the Company which offering is by
the Company, each Holder of Restricted Stock who is a party to this Agreement
(including, without limitation, a successor or permitted assignee of a party)
shall agree not to sell, make any short sale of, loan, grant any option for the
purchase of, or otherwise dispose of any shares of Restricted Stock or any other
shares of Common Stock (other than shares being registered in such offering),
without the consent of such underwriter or underwriters, for a period of not
more than 90 days following the effective date of the registration statement
relating to such offering (unless in any event such underwriter or underwriters
shall, based on then current market conditions, agree to a shorter period),
provided, with respect to each such offering, that all persons entitled to
registration rights in such offering who are not parties to this Agreement, all
other persons selling shares of Common Stock in such offering and all executive
officers of the Company shall also have agreed to be bound by provisions
pertaining to the sale of their shares of Common Stock following such offering
which provisions are substantially similar to the provisions binding upon the
Holders of Restricted Stock obligated under this Agreement with respect to the
sale of their shares following such offering.
(h) The Company shall be permitted to require any Holders
requesting registration under Section 4, 5 or 6 to delay any request for
registration or to cease sales under any effective registration statement if the
Company is then contemplating a transaction that could reasonably be expected to
be adversely affected or the Company would be required to make public disclosure
of information, the disclosure of which at such time could reasonably be
expected to cause a material adverse effect upon the Company's business.
In addition, if at the time of any request to register Registrable
Shares pursuant to Section 4 or Section 6 hereof, the Company is engaged or has
fixed plans to engage within ninety (90) days of the time of the request in a
registered public offering as to which such Holders may include Registrable
Shares pursuant to Section 5 hereof, then the Company may at its option direct
that such request be delayed.
(i) If any provision of this Agreement shall be held to be
illegal, invalid or unenforceable, such illegality, invalidity or
unenforceability shall attach only to such provision and shall not in any manner
affect or render illegal, invalid or unenforceable any other provision of this
Agreement, and this Agreement shall be carried out as if any such illegal,
invalid or unenforceable provision were not contained herein.
In the event that any court of competent jurisdiction shall determine
that any provision, or any portion thereof, contained in this Agreement shall be
unreasonable or unenforceable in any respect, then such provision shall be
deemed limited to the extent that such court deems it reasonable and
enforceable, and as so limited shall remain in full force and effect.
(j) The headings and captions of the various subdivisions of
this Agreement are for convenience of reference only and shall in no way modify,
or affect the meaning or construction of any of the terms or provisions hereof.
14. Entire Agreement.
This Agreement embodies the entire agreement and understanding among
the parties hereto with respect to the subject matter hereof and supersedes all
prior oral or written agreements and understandings related to the subject
matter hereof; except that certain Holders are also parties to the Registration
Rights Agreement of the Company dated as of June 6, 1996, as amended on the date
hereof.
IN WITNESS WHEREOF, the undersigned have executed this Registration
Rights Agreement as a sealed instrument as of the day and year first written
above.
THE COMPANY: INVESTORS:
OCCUPATIONAL HEALTH + CAHILL, WARNOCK STRATEGIC
REHABILITATION INC. PARTNERS FUND, L.P.
By: Cahill, Warnock Strategic Partners, L.P.
By: /s/ John C. Garbarino By: /s/Edward L. Cahill
----------------------- -----------------------------------
Title: Title: General Partner
----------------------- -----------------------------------
STRATEGIC ASSOCIATES, L.P.
By: Cahill, Warnock & Company, LLC
By: /s/ Edward L. Cahill
----------------------------------
Title: Managing Member
----------------------------------
AXA U.S. GROWTH FUND, LLC
By: /s/ Thomas G. McKinley
----------------------------------
Title: Managing Member
----------------------------------
U.S. GROWTH FUND PARTNERS, C.V.
By: /s/ Thomas G. McKinley
----------------------------------
Title: General Partner
----------------------------------
DOUBLE BLACK DIAMOND II, LLC
By: /s/ Thomas G. McKinley
----------------------------------
Title: Managing Member
----------------------------------
ALMANORI LIMITED
By: /s/ Thomas G. McKinley
----------------------------------
Title: Attorney-in-Fact
----------------------------------
THE VENTURE CAPITAL FUND OF
NEW ENGLAND III, L.P.
By: FH & Co. III, L.P., Its General Partner
By: /s/ Kevin J. Dougherty
----------------------------------
BANCBOSTON VENTURES, INC.
By: /s/ Marcia T. Bates
----------------------------------
VENROCK ASSOCIATES
By: /s/ Anthony Evnin
----------------------------------
VENROCK ASSOCIATES II, L.P.
By: /s/ Anthony Evnin
----------------------------------
ASSET MANAGEMENT ASSOCIATES,
1989, L.P.
By: AMC Partners 89, L.P., General Partner
By: /s/ Craig C. Taylor
----------------------------------
SCHEDULE A
INVESTORS
Cahill, Warnock Strategic Partners Fund, L.P.
10 North Calvert Street
Suite 735
Baltimore, Maryland 21202
Attn: Mr. Edward L. Cahill
Strategic Associates, L.P.
10 North Calvert Street
Suite 735
Baltimore, Maryland 21202
Attn: Mr. Edward L. Cahill
Axa U.S. Growth Fund, LLC
c/o Partech International
50 California Street
Suite 3200
San Francisco, CA 94111
Attn: Mr. Thomas G. McKinley
U.S. Growth Fund Partners, C.V.
c/o Partech International
50 California Street
Suite 3200
San Francisco, CA 94111
Attn: Mr. Thomas G. McKinley
Double Black Diamond II, LLC
c/o Partech International
50 California Street
Suite 3200
San Francisco, CA 94111
Attn: Mr. Thomas G. McKinley
Almanori Limited
c/o Partech International
50 California Street
Suite 3200
San Francisco, CA 94111
Attn: Mr. Thomas G. McKinley
Asset Management Associates, 1989, L.P.
2275 East Bayshore Road
Palo Alto, CA 94303
Attn: Mr. Craig C. Taylor
Venrock Associates
Room 5508, 30 Rockefeller Plaza
New York, NY 10112
Attn: Messrs. Anthony Evnin and Patrick F. Latterell
Venrock Associates II, L.P.
Room 5508, 30 Rockefeller Plaza
New York, NY 10112
Attn: Messrs. Anthony Evnin and Patrick F. Latterell
The Venture Capital Fund of New England, III, L.P.
160 Federal Street, 23rd Floor
Boston, MA 02110
Attn: Mr. Kevin J. Dougherty
BancBoston Ventures, Inc.
100 Federal Street
Boston, MA 02110
Attn: Ms. Marcia T. Bates
