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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
Current Report Pursuant to Section 13 or 15(d) of
The Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): December 3, 1997
CONCENTRA CORPORATION
(Exact name of registrant as specified in its charter)
<TABLE>
<S> <C> <C>
Delaware 0-25498 04-2827026
(State or other jurisdiction (Commission file number) (I.R.S. employer
of incorporation) identification number)
</TABLE>
21 North Avenue
Burlington, MA 01803-3301
(Address of principal executive offices)
(617) 229-4600
(Registrant's telephone number)
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Item 5. Other Events.
On December 3, 1997, Concentra Corporation (the "Company") completed a
private placement of 470,589 shares of its common stock, $.00001 par value per
share ("Common Stock"), at a purchase price of $4.25 per share, providing gross
proceeds of $2 million in a transaction led by Special Situations Fund. After
this transaction, the funds managed by Special Situations Fund hold
approximately fifteen percent (15%) of the Company's outstanding Common Stock.
The Company intends to use the net proceeds of this financing for working
capital purposes and general corporate purposes. This financing increases the
number of outstanding shares of the Company's Common Stock to 6,058,170. A copy
of the Stock Purchase Agreement, pursuant to which this financing was
transacted, is attached hereto as Exhibit 4.08.
Item 7. Exhibits.
+4.08 Stock Purchase Agreement dated as of December 3, 1997 by and
between Concentra Corporation and the Purchasers named on the
signature page thereto.
--------------------
+Filed herewith.
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SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by the
undersigned, hereunto duly authorized.
CONCENTRA CORPORATION
Date: December 5, 1997 By: /s/ Alex N. Braverman
-------------------------------
Name: Alex N. Braverman
Title: Chief Financial Officer
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EXHIBIT INDEX
Pursuant to Item 601 of Regulation S-K
EXHIBIT TITLE PAGE NUMBER IN
NUMBER SEQUENTIALLY
NUMBERED REPORT
4.08 Stock Purchase Agreement dated as of December 3, 5
1997 by and between Concentra Corporation and the
Purchasers named on the signature page thereto.
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Exhibit 4.08
STOCK PURCHASE AGREEMENT
This Stock Purchase Agreement (the "Agreement"), dated as of December
3, 1997, is entered into by and between Concentra Corporation, a Delaware
corporation (the "Company") and the Purchasers named on the signature page
hereto (each, a "Purchaser" and collectively, the "Purchasers").
The Company has offered for sale, pursuant to Regulation D promulgated
under the Securities Act of 1933, as amended (the "Securities Act"), to the
Purchasers shares of the Common Stock, par value $0.00001 per share (the "Common
Stock") of the Company.
The parties hereto agree as follows:
1. Purchase and Sale of Shares. On the basis of the
representations and warranties, and subject to the terms and conditions, set
forth in this Agreement, the Company covenants and agrees to issue and sell to
the Purchasers on the Closing Date (as hereinafter defined), 470,589 shares, in
the aggregate, of Common Stock (the "Shares") at a price of $4.25 per share (the
"Purchase Price"), and on the basis of the representations and warranties, and
subject to the terms and conditions, set forth in this Agreement, each Purchaser
covenants and agrees to purchase from the Company on the Closing Date the number
of Shares set forth on the signature page hereof at the Purchase Price.
2. Closing. The settlement of the purchase and sale of the Shares
hereunder (the "Closing") shall take place on the second business day after the
date hereof (the "Closing Date"), or such other date as the parties hereto shall
mutually agree. At the Closing, a certificate or certificates in definitive form
representing the Shares and registered in the name of each of the Purchasers (or
as the Purchasers may direct) shall be delivered by the Company to the
Purchasers at the offices of the Purchasers in New York City, or at such other
place as the Purchasers may direct) and the Purchasers shall deliver payment of
the Purchase Price therefor in the aggregate amount of $2,000,003.25 in
immediately available funds to the account of the Company in accordance with the
Company's written instructions.
3. Representations, Warranties and Certain Covenants of the
Purchasers. Each Purchaser represents and warrants to the Company as follows:
(a) The Purchaser has been duly organized and is validly
existing in good standing under the laws of its jurisdiction of
organization.
(b) This Agreement has been duly authorized, executed and
delivered by the Purchaser and, assuming due authorization, execution
and delivery by the Company, is a valid and binding agreement
enforceable against the Purchaser in accordance with its terms; and the
Purchaser has full corporate power and authority necessary to enter
into this Agreement and to perform its obligations hereunder.
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(c) No consent, approval, authorization, or order of any
court, governmental agency or body, or arbitrator having jurisdiction
over the Purchaser is required for execution of this Agreement,
including, without limitation, the purchase of the Shares, or the
performance of the Purchaser's obligations hereunder.
(d) The Purchaser understands that no Federal or state agency
has passed on or made any recommendation or endorsement of the Shares.
(e) The Purchaser acknowledges that, in making the decision to
purchase the Shares, it has relied solely upon independent
investigations made by it and not upon any representations made by the
Company with respect to the Company or the Shares, except for the
representations and warranties of the Company with respect to the
Company and/or the Shares contained in this Agreement.
(f) The Purchaser understands that the Shares are being
offered and sold to it in reliance on specific exemptions from the
registration requirements of Federal and state securities laws and that
the Company is relying, in part, upon the truth and accuracy of the
representations, warranties, agreements, acknowledgements, and
understandings of the Purchaser set forth herein in order to determine
the applicability of such exemptions and the suitability of the
Purchaser to acquire the Shares.
(g) The Purchaser is an "accredited investor" within the
meaning of Rule 501 of Regulation D under the Securities Act and was
not organized for the specific purpose of acquiring the Shares.
(h) The Purchaser has sufficient knowledge and experience in
investing in companies similar to the Company 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.
(i) The Purchaser has had an opportunity to discuss the
Company's business, management and financial affairs with the Company's
management and to make inquiries of the Company's management concerning
all matters which the Purchaser deems relevant to its decision to
purchase the Shares, and the Purchaser has received satisfactory
answers to all such inquiries.
(j) The Shares are being acquired by the Purchaser for its own
account for the purpose of investment and not with a view to or for
sale in connection with any distribution thereof.
(k) The purchase of the Shares is consistent with the general
investment objectives of the Purchaser.
(l) The Purchaser is aware that the Shares have not been
registered under the Securities Act and may only be offered or sold by
the Purchaser pursuant to
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registration under the Securities Act or an available exemption
therefrom.
5. Representations, Warranties and Certain Covenants of the
Company. The Company represents and warrants to, and agrees with, the Purchasers
as follows:
(a) The Shares:
(i) when issued as contemplated in this
Agreement, will be duly and validly authorized and issued,
fully paid and non-assessable;
(ii) when issued as contemplated in this
Agreement, will not have been issued or sold in violation of
any pre-emptive or other similar rights of the holders of any
securities of the Company; and
(iii) will not subject the holders thereof to
personal liability by reason of being such holders.
(b) The Company has full legal right, capacity and
authority to enter into this Agreement, to issue and sell the Shares
and to perform its other obligations hereunder and to consummate the
transactions contemplated hereby. This Agreement has been duly executed
and delivered by the Company and is a valid and binding obligation of
the Company, enforceable against the Company in accordance with its
terms.
(c) There is no pending or, to the best knowledge of the
Company, threatened action, suit, proceeding, or investigation before
any court, governmental agency or body, or arbitrator having
jurisdiction over the Company that would materially affect the
execution by the Company of, or the performance by the Company of its
obligations under, this Agreement.
(d) The Common Stock is a class of securities registered
under the provisions of the Securities Exchange Act of 1934, as amended
(the "Exchange Act").
(e) The Company is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware
and has full corporate power and authority to own and lease all of the
properties and assets it now owns and leases and to carry on its
business as now being conducted. The Company has heretofore delivered
to the Purchasers complete and correct copies of the Company's Restated
Certificate of Incorporation and Bylaws, each as currently in effect.
(f) Except as disclosed in the SEC Reports (as
hereinafter defined), there are no options, warrants or other
commitments of any kind by the Company to issue or sell any shares of
capital stock or any securities or obligations convertible into or
exchangeable for, or giving any person any right to acquire from the
Company, any
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shares of its capital stock.
(g) The Company has timely filed all reports with the
Securities and Exchange Commission (the "Commission") required to be
filed by it under the Exchange Act (collectively, the "SEC Reports").
Such SEC Reports, at the time filed, complied as to form in all
material respects with the requirements of the Exchange Act. None of
the SEC Reports, including, without limitation, any financial
statements or schedules included therein, when filed, contained any
untrue statement or material fact or omitted to state a material fact
necessary in order to make the statements made, when and in light of
the circumstances under which they were made, not misleading. There
have been no material adverse changes in the Company's business,
properties, results of operations, condition (financial or otherwise)
or prospects since the date of the Company's most recently filed SEC
Report which have not been disclosed to the Purchasers in writing. The
consolidated balance sheet of the Company contained in the most
recently filed Form 10-Q comprising a part of the SEC Reports, and the
related consolidated statements of income, changes in stockholders'
equity and changes in cash flows for the periods then ended (such
consolidated balance sheet of the Company is hereinafter referred to as
the "Balance Sheet"), except as indicated therein, have been prepared
in accordance with generally accepted accounting principles
consistently followed throughout the periods indicated, except that
such financial statements do not contain notes and may be subject to
normal audits adjustments and normal annual adjustments. The Balance
Sheet fairly presents the financial condition of the Company and its
subsidiaries at the date thereof and, except as indicated therein,
reflects all claims against and all debts and liabilities the Company
and its subsidiaries, fixed or contingent, as of the date thereof and
the related statements of income, stockholders' equity and changes in
cash flows fairly present the results of the operations of the Company
and its subsidiaries and the changes in their financial position for
the period indicated. Since the date of the Balance Sheet, except as
disclosed in the SEC Reports or as otherwise disclosed in writing by
the Company to the Purchasers, there has been (x) no material adverse
change in the assets or liabilities, or the business or condition,
financial or otherwise, or the results of operations or prospects, of
the Company and its subsidiaries, whether as a result of any
legislative or regulatory change, revocation of any license or rights
to do business, fire, explosion, accident, casualty, labor trouble,
flood, drought, riot, storm, condemnation, act of God, public force or
otherwise and (y) no change in the assets or liabilities, or in the
business or condition, financial or otherwise, or in the results of
operations or prospects, of the Company except in the ordinary course
of business; and no fact or condition exists or is contemplated or
threatened which might cause such a change in the future.
(h) All of the information provided to the Purchasers by the
Company regarding the Company was and remains true, correct and
complete in all material respects and no representation, warranty or
statement made by the Company in or pursuant to this Agreement contains
any untrue statement of a material fact or omits or
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will omit to state any material fact necessary in order to make such
information, representation, warranty or statement not misleading.
6. Registration of the Shares under the Securities Act. The
Company covenants and agrees with the Purchasers as follows:
(a) The Company shall, as promptly as practicable, after the
Closing Date file with the Commission a registration statement for an offering
to be made on a continuous basis pursuant to Rule 415 covering all of the Shares
(the "Shelf Registration"). The Company shall use its best efforts to file with
the Commission the Shelf Registration within 45 days of Closing Date and shall
use its best efforts to cause such Shelf Registration to be declared effective
under the Securities Act as promptly as practicable thereafter. The Shelf
Registration shall be on Form S-3 or another appropriate form permitting
registration of such Shares for resales by the Purchasers in the manner or
manners designated by them (including, without limitation, one or more
underwritten offerings). The Company shall not permit any securities other than
the Shares to be included in the Shelf Registration without the consent of the
holders of the Shares. The Company shall use its best efforts to keep the Shelf
Registration continuously effective under the Securities Act of 1933, as amended
(the "Securities Act") until the date which is 36 months from the date of filing
(the "Effectiveness Period") or such shorter period ending when (i) all Shares
covered by the Shelf Registration have been sold in the manner set forth and as
contemplated in the Shelf Registration or (ii) the Purchasers have elected to
sell Shares pursuant to Rule 144(k) under the Securities Act.
(b) When the Company is required by the provisions of Section 6(a)
to use its best efforts to effect the registration of the Shares under the
Securities Act, the Company will, as expeditiously as practicable:
(i) prepare and file with the Commission a registration
statement on Form S-3 or any successor with respect to the Shares and use its
best efforts to cause such registration statement to become effective as soon as
reasonably practicable, and to remain effective throughout the Period of
Distribution (as such term is hereinafter defined).
(ii) 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 of Distribution and comply with the provisions of the
Securities Act with respect to the disposition of all Shares covered by such
registration statement in accordance with the Purchasers' intended method of
disposition set forth in such registration statement for such Period of
Distribution;
(iii) furnish to the Purchasers such number of copies of
the registration statement and the prospectus included therein (including each
preliminary prospectus) as the Purchasers reasonably may request in order to
facilitate the public sale or other disposition of the Shares covered by such
registration statement;
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(iv) use its best efforts to register or qualify the
Shares covered by such registration statement under the securities or "blue sky"
laws of such jurisdictions as the Purchasers reasonably may 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;
(v) use its best efforts to list the Shares covered by
such registration statement with any securities exchange or quotation service on
which the Common Stock of the Company is then traded; and
(vi) immediately notify the Purchasers, 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.
(c) In connection with the registration of the Shares hereunder,
the Purchasers shall provide to the Company such information as the Company may
reasonably request and complete and execute all questionnaires, powers of
attorney, indemnities, underwriting agreements and other documents reasonably
requested by the Company.
(d) The Company will pay all Registration Expenses (as such term
is hereinafter defined) in connection with the registration statement under
Section 6(a). All Selling Expenses (as such term is hereinafter defined) in
connection with such registration statement shall be borne by the Purchasers.
For purposes of this Section 6, the term "Registration Expenses" shall mean all
registration and filing fees, printing expenses, fees and disbursements of
counsel and independent public accountants for the Company, fees and expenses
incurred in connection with applying for listing and quotation on any securities
exchange or quotation service, 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,
and fees of transfer agents and registrars; and the term "Selling Expenses"
shall mean all fees and disbursements of one (1) counsel for the Purchasers and
all underwriting discounts and selling commissions applicable to the sale of the
Shares.
(e) (i) In the event of a registration of any of the Shares under the
Securities Act pursuant to Section 6(a), the Company will indemnify and hold the
Purchasers harmless against any losses, claims, damages or liabilities, joint or
several, to which the Purchasers 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 of any
material fact contained in any registration statement under which such
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Shares were registered under the Securities Act pursuant to Section 6(a), any
preliminary prospectus or final prospectus contained therein, or any amendment
or supplement thereof, or arise out of or are based upon the omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading or any violation by the Company of the
Securities Act, the Exchange Act, any state securities law or any rule or
regulation promulgated under the Securities Act, the Exchange Act or any state
securities law, and will pay the legal fees and other expenses of the Seller 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 omission so made
in reliance upon and in conformity with information furnished by or on behalf of
the Purchasers in writing specifically for use in such registration statement or
prospectus or such untrue statement or omission was contained in a preliminary
prospectus and corrected in a final or amended prospectus, copies of which were
delivered to the Purchasers (or to an underwriter retained by the Purchasers to
engage in a distribution of the Shares on behalf of the Purchasers) on a timely
basis and the Purchasers or such underwriter thereafter failed to deliver a copy
of such final or amended prospectus at or prior to the confirmation of the sale
of Shares to the person asserting any such loss, claim, damage or liability in
any case where such delivery is required by the Securities Act.
(ii) In the event of a registration of any of the Shares
under the Securities Act pursuant to Section 6(a), the Purchasers 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 of any material fact contained in the
registration statement under which such Restricted Stock was registered under
the Securities Act pursuant to Section 6(a), any preliminary prospectus or final
prospectus contained therein, or any amendment or supplement thereof, or arise
out of or are based upon the omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not misleading,
and will pay the legal fees and other expenses of the Company and each such
officer, director, underwriter and controlling person incurred by them in
connection with investigating or defending any such loss, claim, damage,
liability or action, PROVIDED, HOWEVER, that the Purchasers 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
omission made in reliance upon and in conformity with information furnished in
writing to the Company by the Purchasers specifically for use in such
registration statement or prospectus.
(iii) 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
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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 that it may have to such indemnified
party other than under this Section 6(e) and shall only relieve it from any
liability that it may have to such indemnified party under this Section 6(e) 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 6(e) for any legal expenses subsequently incurred by such
indemnified party in connection with the defense thereof; PROVIDED, HOWEVER,
that, if the defendants in any such action include both the indemnified party
and the indemnifying party and the indemnified party shall have reasonably
concluded (based on the advice of counsel) that there may be reasonable defenses
available to it which are different from or additional to those available to the
indemnifying party or if the interests of the indemnified party reasonably may
be deemed to conflict with the interests of the indemnifying party, 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, it being understood, however, that the indemnifying party shall not,
in connection with any one such action or separate but substantially similar or
related actions in the same jurisdiction arising out of the same general
allegations or circumstances, be liable for the fees and expenses of more than
one separate firm of attorneys (together with appropriate local counsel as
required by the local rules of such jurisdiction) at any time for all such
indemnified parties.
(f) In the event the Purchasers shall not have sold all of the Shares
covered by the registration statement filed pursuant to Section 6(a) within 90
days after the effective date of such registration statement, then following
such 90-day period, the Purchasers shall not effect any further sales of Shares
in reliance upon such registration statement unless, no later than 5 business
days prior to the date on which the Purchasers propose to effect any such
further sale, the Purchasers give the Company written notice of its intention to
effect such further sale and if, within 3 business days after its receipt of
such notice, the Company advises the Purchasers that the 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,
the Purchasers will not effect any sale of Shares in reliance on such
registration statement until such time as the Company has filed a corrective
amendment thereto. The Company shall use its best efforts to file such
corrective amendment as soon as practicable after its receipt of the Purchasers'
notice, but in any event within 10 business days; provided, however, that the
Company shall have the right to defer the filing of such corrective amendment
for up to 30 days if, in the good faith judgment of the Company's Board of
Directors, it would be detrimental to the interests of the Company for such
corrective amendment to be filed at such
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time.
(g)(i) The Company may, by written notice to the Purchasers,
suspend use of the registration statement hereunder after effectiveness and
require that the Purchasers immediately cease sales of the Shares pursuant to
the registration statement during any period in which the Company is engaged in
any activity or transaction or preparations or negotiations for any activity or
transaction that the Company desires to keep confidential for business reasons,
if the Company determines in good faith that the public disclosure requirements
imposed on the Company under the Securities Act of 1933 in connection with the
registration statement would require disclosure of such activity, transaction,
preparations or negotiations.
(ii) If the Company delays or suspends the registration
statement or requires the Purchasers to cease sales of the Shares pursuant to
paragraph (g)(i) above, the Company shall, as promptly as practicable following
the termination of the circumstance which entitled the Company to do so, take
such actions as may be necessary to file or reinstate the effectiveness of the
registration statement and/or give written notice to the Purchasers authorizing
them to resume sales pursuant to the registration statement. If as a result
thereof, the prospectus included in the registration statement has been amended
to comply with the requirements of the Securities Act, the Company shall enclose
such revised prospectus with the notice to the Purchasers given pursuant to this
paragraph (g)(ii), and the Purchasers shall make no offers or sales of the
Shares pursuant to the registration statement other than by means of such
revised prospectus.
(iii) Notwithstanding any other provision of this
Agreement, the Company shall have the right to cause more than one suspension
pursuant to paragraph (g)(i), none of which may be for more than sixty (60) days
in length, and provided further, that the Company shall not cause any such
suspension of registration more than once in any six-month period and no more
than one hundred eighty days in any three-year period.
7. Conditions Precedent to the Purchasers' Obligations. The
obligations of the Purchasers hereunder are subject to the performance by the
Company of its obligations hereunder and to the satisfaction of the following
additional conditions precedent:
(a) The representations and warranties made by the
Company in this Agreement shall be true and correct as of the date
hereof and at the Closing Date, with the same force and effect as if
they had been made on and as of the Closing Date, and the Company shall
have delivered to the Purchasers a certificate, dated the Closing Date,
to that effect.
(b) After the date hereof until the Closing Date there
shall not have occurred:
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(i) any change, or any development involving a
prospective change, in either (a) the condition, financial or
otherwise, or in the earnings, business operations or
prospects or in or affecting the properties of the Company or
(b) the financial or market conditions or circumstances in the
United States, in either case which, in the Purchasers'
reasonable judgment, is material and adverse and makes it
impractical or inadvisable to proceed with the offering, sale,
or delivery of the Shares;
(ii) an imposition of a new legal or regulatory
restriction not in effect on the date hereof, or any change in
the interpretation of existing legal or regulatory
restrictions, that materially and adversely affects the
offering, sale, or delivery of the Shares; or
(iii) a suspension, or material limitation of,
trading (a) generally on or by Nasdaq or (b) of any securities
of the Company on any exchange or in any over-the-counter
market.
(c) All consents, approvals, or waivers, if any, required
in connection with the consummation of the transactions contemplated by
this Agreement, shall have been received. All of the consents,
approvals, authorizations, exemptions and waivers, if any, from
government agencies that shall be required in order to enable the
Company to consummate the transactions contemplated hereby shall have
been obtained.
(d) No action or proceeding shall have been instituted
or, to the knowledge of the Company, threatened before a court or other
government body or any public authority to restrain or prohibit any of
the transactions contemplated hereby, and the Company shall have
delivered to the Purchasers a certificate, dated the Closing Date, to
such effect.
8. Conditions Precedent to the Company's Obligations. The
obligations of the Company hereunder are subject to the performance by each
Purchaser of its obligations hereunder and to the satisfaction of the following
additional conditions precedent:
(a) The representation and warranties made by the
Purchaser in this Agreement shall, unless waived by the Company, be
true and correct at the Closing Date, with the same force and effect as
if they had been made on, and as of, the Closing Date and the Purchaser
shall have delivered to the Company a certificate, dated the Closing
Date, to that effect.
(b) All consents, approvals, or waivers, if any, required
in connection with the consummation of the transactions contemplated by
this Agreement shall have been received. All of the consents,
approvals, authorizations, exemptions and waivers, if any, from
government agencies that shall be required in order to enable the
Purchaser to consummate the transactions contemplated hereby shall have
been obtained.
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(c) No action or proceeding shall have been instituted
or, to the knowledge of the Purchaser, threatened before a court or
other government body or any public authority to restrain or prohibit
any of the transactions contemplated hereby, and the Purchaser shall
have delivered to the Company a certificate, dated the Closing Date, to
such effect.
9. Fees and Expenses. Each of the Purchasers and the Company
agrees to pay its own expenses incident to the performance of its obligations
hereunder, including, but not limited to, the fees, expenses, and disbursements
of such party's counsel.
10. Survival of the Representations, Warranties, etc. The
respective agreements, representations, warranties, indemnities, and other
statements made by or on behalf of the Company and each Purchaser, respectively,
pursuant to this Agreement, shall remain in full force and effect and will
survive delivery of the Shares for a period of one year from the Closing Date.
11. Termination. This Agreement may be terminated at any time
prior to the Closing Date:
(a) By mutual consent of the Company and the Purchasers;
(b) By the Company if any representation or warranty of the
Purchasers, or by the Purchasers if any representation or warranty of
the Company, contained herein shall have been incorrect or breached in
any material respect, as to which notice shall have been given to such
party, and shall not have been cured or otherwise resolved to the
reasonable satisfaction of the other party on or before the Closing
Date;
(c) By either the Company or the Purchasers if any permanent
injunction or other order of a court or other competent authority
preventing the consummation of the transactions contemplated by this
Agreement shall have become final and non-appealable; or
(d) By the Company if the Closing has not occurred by December
31, 1997 consistent with the terms of Section 3 above.
12. Notices. All notices, requests, consents and other
communications hereunder shall be in writing and shall be deemed to be effective
(i) when delivered in person, (ii) three (3) business days after being mailed by
certified or registered mail, return receipt requested, (iii) the next business
day after being sent by a recognized overnight courier service, or (iv) when
sent by facsimile transmission, e-mail or other electronic means (provided
electronic confirmation is generated upon such transmission), in each case
addressed as follows:
if to the Purchasers, at:
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<PAGE> 12
Special Situations Fund
153 53rd Street
New York, NY 10022
Attn: David Greenhouse
if to the Company, at:
Concentra Corporation
21 North Avenue
Burlington, Massachusetts 01803
Attn: Chief Financial Officer
with copy to: William E. Kelly, Esq.
Peabody & Arnold
50 Rowes Wharf
Boston, Massachusetts 02110
or, in any case, to such other address as the addressee shall have indicated in
a written notice to the other party as provided herein.
13. Miscellaneous.
(a) This Agreement may be executed by facsimile signature and
in one or more counterparts and it is not necessary that signatures of
all parties appear on the same counterpart, but such counterparts
together shall constitute but one and the same agreement.
(b) This Agreement shall inure to the benefit of and be
binding upon the parties hereto, their respective successors and no
other person shall have any right or obligation hereunder.
(c) This Agreement shall be governed by, and construed in
accordance with, the laws of the State of New York.
(d) The headings of the sections of this document have been
inserted for convenience of reference only and shall not be deemed to
be a part of this Agreement.
(e) This Agreement may be amended by the parties hereto at any
time prior to the Closing Date; PROVIDED, HOWEVER, that any amendment
must be by an instrument or instruments in writing signed and delivered
on behalf of each of the parties hereto.
(f) Any provision hereof which is prohibited or unenforceable
in any jurisdiction shall, as to such jurisdiction, be ineffective to
the extent of such
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<PAGE> 13
prohibition or unenforceability without invalidating the remaining
provisions hereof and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such
provision in any other jurisdiction. To the extent permitted by
applicable law, the parties hereby waive any provision of law which may
render any provision hereof prohibited or unenforceable in any respect.
IN WITNESS WHEREOF, the parties hereto have duly executed and delivered
this Agreement, all as of the day and year first above written.
CONCENTRA CORPORATION
By: /s/ Lawrence W. Rosenfeld
-----------------------------------
SPECIAL SITUATIONS FUND III L.P. 145,000 Shares
By: /s/ David M. Greenhouse
-----------------------------------
SPECIAL SITUATIONS CAYMAN FUND L.P. 45,000 Shares
By: /s/ David M. Greenhouse
-----------------------------------
SPECIAL SITUATIONS PRIVATE EQUITY FUND L.P. 235,000 Shares
By: /s/ David M. Greenhouse
-----------------------------------
SPECIAL SITUATIONS TECHNOLOGY FUND L.P. 45,589 Shares
By: /s/ David M. Greenhouse
-----------------------------------
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