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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE 13D
(Rule 13d-101)
INFORMATION TO BE INCLUDED IN STATEMENTS FILED PURSUANT TO
13d-1(a) AND AMENDMENTS THERETO FILED PURSUANT TO 13d-2(a)
Medical Resources, Inc.
---------------------------------------------------------------
(Name of Issuer)
Common Stock, $.01 Par Value
---------------------------------------------------------------
(Title of Class of Securities)
58461Q102
---------------------------------------------------------------
(CUSIP Number)
James C. Kennedy, Esq.
One East Fourth Street
Cincinnati, Ohio 45202
(513) 579-2538
---------------------------------------------------------------
(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)
March 6, 2001
---------------------------------------------------------------
(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 [ ].
Page 1 of 85 Pages
CUSIP NO. 58461Q102 13D Page 2 of 85 Pages
1 NAME OF REPORTING PERSONS
S.S. OR I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS
American Financial Group, Inc. 31-1422526
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [X]
(b) [ ]
3 SEC USE ONLY
4 SOURCE OF FUNDS*
See Item 3
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS
IS REQUIRED PURSUANT TO ITEM 2(d) or 2(e) [ ]
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Ohio corporation
7 NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON
WITH:
SOLE VOTING POWER
- - -
8 SHARED VOTING POWER
407,168 (See Item 5)
9 SOLE DISPOSITIVE POWER
- - -
10 SHARED DISPOSITIVE POWER
407,168 (See Item 5)
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING
PERSON
407,168 (See Item 5)
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11)
EXCLUDES CERTAIN SHARES* [ ]
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
7.4% (See Item 5)
14 TYPE OF REPORTING PERSON*
HC
CUSIP NO. 58461Q102 13D Page 3 of 85 Pages
1 NAME OF REPORTING PERSONS
S.S. OR I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS
Carl H. Lindner
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [X]
(b) [ ]
3 SEC USE ONLY
4 SOURCE OF FUNDS*
See Item 3
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS
IS REQUIRED PURSUANT TO ITEM 2(d) or 2(e) [ ]
6 CITIZENSHIP OR PLACE OF ORGANIZATION
United States Citizen
7 NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON
WITH:
SOLE VOTING POWER
- - -
8 SHARED VOTING POWER
407,168 (See Item 5)
9 SOLE DISPOSITIVE POWER
- - -
10 SHARED DISPOSITIVE POWER
407,168 (See Item 5)
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING
PERSON
407,168 (See Item 5)
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11)
EXCLUDES CERTAIN SHARES* [ ]
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
7.4% (See Item 5)
14 TYPE OF REPORTING PERSON*
IN
CUSIP NO. 58461Q102 13D Page 4 of 85 Pages
1 NAME OF REPORTING PERSONS
S.S. OR I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS
Carl H. Lindner III
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [X]
(b) [ ]
3 SEC USE ONLY
4 SOURCE OF FUNDS*
See Item 3
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS
IS REQUIRED PURSUANT TO ITEM 2(d) or 2(e) [ ]
6 CITIZENSHIP OR PLACE OF ORGANIZATION
United States Citizen
7 NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON
WITH:
SOLE VOTING POWER
- - -
8 SHARED VOTING POWER
407,168 (See Item 5)
9 SOLE DISPOSITIVE POWER
- - -
10 SHARED DISPOSITIVE POWER
407,168 (See Item 5)
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING
PERSON
407,168 (See Item 5)
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11)
EXCLUDES CERTAIN SHARES* [ ]
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
7.4% (See Item 5)
14 TYPE OF REPORTING PERSON*
IN
CUSIP NO. 58461Q102 13D Page 5 of 85 Pages
1 NAME OF REPORTING PERSONS
S.S. OR I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS
S. Craig Lindner
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [X]
(b) [ ]
3 SEC USE ONLY
4 SOURCE OF FUNDS*
See Item 3
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS
IS REQUIRED PURSUANT TO ITEM 2(d) or 2(e) [ ]
6 CITIZENSHIP OR PLACE OF ORGANIZATION
United States Citizen
7 NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON
WITH:
SOLE VOTING POWER
- - -
8 SHARED VOTING POWER
407,168 (See Item 5)
9 SOLE DISPOSITIVE POWER
- - -
10 SHARED DISPOSITIVE POWER
407,168 (See Item 5)
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING
PERSON
407,168 (See Item 5)
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11)
EXCLUDES CERTAIN SHARES* [ ]
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
7.4% (See Item 5)
14 TYPE OF REPORTING PERSON*
IN
CUSIP NO. 58461Q102 13D Page 6 of 85 Pages
1 NAME OF REPORTING PERSONS
S.S. OR I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS
Keith E. Lindner
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [X]
(b) [ ]
3 SEC USE ONLY
4 SOURCE OF FUNDS*
See Item 3
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS
IS REQUIRED PURSUANT TO ITEM 2(d) or 2(e) [ ]
6 CITIZENSHIP OR PLACE OF ORGANIZATION
United States Citizen
7 NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON
WITH:
SOLE VOTING POWER
- - -
8 SHARED VOTING POWER
407,168 (See Item 5)
9 SOLE DISPOSITIVE POWER
- - -
10 SHARED DISPOSITIVE POWER
407,168 (See Item 5)
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING
PERSON
407,168 (See Item 5)
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11)
EXCLUDES CERTAIN SHARES* [ ]
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
7.4% (See Item 5)
14 TYPE OF REPORTING PERSON*
IN
This Schedule 13D is filed on behalf of American Financial Group, Inc.
("American Financial" or "AFG"), and Carl H. Lindner, Carl H. Lindner III, S.
Craig Lindner and Keith E. Lindner (collectively, the "Lindner Family") (AFG and
the Lindner Family are collectively referred to as the "Reporting Persons").
As of December 31, 2000, the Lindner Family beneficially owned
approximately 36% of the outstanding common stock of AFG. Through their
ownership of common stock of AFG and their positions as directors and executive
officers of AFG, the members of the Lindner Family may be deemed to be
controlling persons with respect to AFG.
Item 1. Security and Issuer.
The class of equity securities to which this statement relates is the
Common Stock, $.01 par value ("Shares"), of Medical Resources, Inc., a Delaware
corporation ("MRI"), with principal executive offices at 155 State Street,
Hackensack, NJ 07601.
Item 2. Identity and Background.
See the schedule attached hereto as Exhibit 1 which contains additional
information concerning the Reporting Persons.
Item 3. Source and amount of funds or other consideration.
The transaction reported herein is the cancellation of $6,250,000
principal amount of senior notes beneficially owned by the Reporting Persons in
exchange for Shares as a result of the consummation of MRI's Third Amended Joint
Plan of Reorganization dated November 6, 2000 and confirmed by the Bankruptcy
Court of the Southern District of New York (the "Plan") The senior notes held by
the Reporting Persons were a part of a class of $75,000,000 in aggregate
principal amount of senior notes (the "Senior Notes") all of which were
cancelled under the Plan in exchange for Shares.
Item 4. Purpose of transaction.
The transaction requiring the filing of this statement is described in
Item 3 above.
The Reporting Persons currently intend to seek to dispose of the Shares
beneficially owned in one or more privately negotiated sales or through a
corporate merger or reorganization. Given MRI's business, prospects and
financial condition and the market for Shares, an acceptable offer may not be
received by the Reporting Persons, in which event the Reporting Persons may
continue to hold such Shares for investment. The Reporting Persons may be
compelled, pursuant to the Stockholders Agreement described in Item 6, to vote
the Shares in favor of and/or to dispose of the Shares beneficially owned in a
sale or corporate transaction in certain circumstances. The Reporting Persons
have not received a currently acceptable offer for such Shares nor are the
Reporting Persons aware of any proposed transaction which would require disposal
of such Shares pursuant to the Stockholders Agreement.
- 7 -
Upon consummation of the Plan the Board of Directors of MRI was
reconstituted with seven members, six of whom were selected by the holders of
the Senior Notes as a class (collectively with the Reporting Persons, the
"Former Holders") and one of whom was selected by DVI Financial Services, Inc.
("DVI"), another creditor of MRI. Pursuant to the Stockholders Agreement and the
Voting Agreement, also described in Item 6, the Reporting Persons agreed to vote
the Shares beneficially owned to maintain such Board composition. The Reporting
Persons have been made aware that Richard Teller and Mark Dunn, two of the
directors selected by the Former Holders, have resigned from the Board and that
the Board has voted to fill one of the resulting vacancies with Jeffrey Pollock,
a person nominated by the remaining members of the Board originally nominated by
the Former Holders.
The Reporting Persons have been advised that as a result of the
consummation of the Plan, MRI has filed a Form 15 to deregister the Shares. If
such deresgistration is effective, the Reporting Persons do not intend to file
any amendments to update any of the information contained in this Schedule 13D.
Except as set forth in this Item 4, the Reporting Persons do not have
any plans or proposals which would relate to or result in:
(a) The acquisition by any person of additional securities of MRI, or
the disposition of securities of MRI;
(b) An extraordinary corporate transaction, such as a merger,
reorganization or liquidation, involving MRI or any of its
subsidiaries;
(c) A sale or transfer of a material amount of assets of MRI or any of
its subsidiaries;
(d) Any change in the present board of directors or management of MRI,
including any plans or proposals to change the number or terms of
directors or to fill any existing vacancies on the board;
(e) Any material change in the present capitalization or dividend
policy of MRI;
(f) Any other material change in MRI's business or corporate
structure;
(e) Changes in MRI's charter, bylaws or instruments corresponding
thereto or other actions which may impede the acquisition of
control of MRI by any person;
(f) Causing a class of securities of MRI 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 MRI becoming eligible for
termination of registration pursuant to Section 12(g)(4) of the
Securities Exchange Act of 1934; or
- 8 -
(j) Any action similar to any of those enumerated above.
Item 5. Interest in securities of the issuer.
(a) The Reporting Persons have beneficial ownership of 407,168 Shares.
Based upon the 5,491,961 Shares the Reporting Persons understand to be presently
outstanding, this beneficial ownership would constitute approximately 7.4% of
the Shares. The 407,168 Shares are held by Great American Life Insurance
Company, a wholly-owned subsidiary of Great American Financial Resources, Inc.
("GAFRI"). AFG owns 83% of the outstanding common stock of GAFRI. The Reporting
Persons share the power to vote or to direct the disposition of the Shares.
As a result of the Stockholders Agreement and the Voting Agreement, the
Reporting Persons may be deemed to be the beneficial owner of an additional
4,969,861 Shares owned or receivable by the other parties to the Voting
Agreement and the Stockholders Agreement. The Reporting Persons disclaim
beneficial ownership of these other Shares.
(b) Other than as may be described in Item 3, no transactions in Shares have
been effected during the past sixty days by the Reporting Persons.
Item 6. Contracts, arrangements, understandings or relationships with
respect to securities of the issuer.
In connection with the transactions described in Item 3, the Reporting
Persons entered into a Voting Agreement with MRI, the other Former Holders and
DVI and a Stockholders Agreement with MRI, the other Former Holders, DVI and
Geoffrey Whynot ("Whynot") and Christopher Joyce ("Joyce"), the current Co-Chief
Executives of MRI. The descriptions below of these agreements are qualified in
their entirety by reference to the agreements, which are filed as Exhibits 2 and
3 to this Schedule and which are incorporated herein by reference.
The Voting Agreement provides that until the occurrence of certain
events the Former Holders and DVI will vote to elect from time to time one
nominee selected by DVI to MRI's Board of Directors and six nominees selected by
a majority of the Former Holders. Pursuant to the Voting Agreement MRI has
agreed to provide the Former Holders and DVI with certain rights, including the
right to receive certain information relating to MRI and preemptive rights on
future securities issuances.
The Stockholders Agreement provides that until the occurrence of
certain events each of Joyce and Whynot will also vote their Shares from time to
time in favor of six nominees to MRI's Board of Directors selected by a majority
of the Former Holders and that each of the Former Holders, Joyce and Whynot will
vote their Shares as directed from time to time by a majority of the Former
Holders on a number of significant corporate issues. The Stockholder Agreement
also provides that each of Joyce, Whynot and the Former Holders will be entitled
to participate in any sale of Shares entered into by Former Holders owning at
least 40% of the issued and outstanding Shares and if such sale is of at least
50% of the issued and outstanding Shares, such holders will participate in such
sale if so requested and certain conditions are met. Pursuant to the
Stockholders Agreement MRI granted to the Former
- 9 -
Holders two demand registration rights and granted to DVI, Joyce, Whynot and the
Former Holders the right to piggyback on registrations of securities effected by
MRI on its own behalf or for other holders of securities.
Item 7. Material to be filed as Exhibits.
(1) Schedule referred to in Item 2.
(2) Voting Agreement.
(3) Stockholders Agreement.
(4) Agreement required pursuant to Regulation Section 240.13d-1(f)(1)
promulgated under the Securities Exchange Act of 1934, as amended.
(5) Powers of Attorney executed in connection with filings under the
Securities Exchange Act of 1934, as amended.
After reasonable inquiry and to the best knowledge and belief of the
undersigned, it is hereby certified that the information set forth in this
statement is true, complete and correct.
Dated: March 7, 2001
AMERICAN FINANCIAL GROUP, INC.
By: James C. Kennedy
-------------------------------------------
James C. Kennedy, Deputy General
Counsel and Secretary
AMERICAN FINANCIAL CORPORATION
By: James C. Kennedy
-------------------------------------------
James C. Kennedy, Deputy General
Counsel and Secretary
Carl H. Lindner*
-------------------------------------------
Carl H. Lindner
Carl H. Lindner III*
-------------------------------------------
Carl H. Lindner III
S. Craig Lindner*
-------------------------------------------
S. Craig Lindner
Keith E. Lindner*
-------------------------------------------
Keith E. Lindner
James C. Kennedy
- ------------------------------------
*By James C. Kennedy, Attorney-in-Fact
- 10 -
Exhibit 1
Item 2. Identity and Background.
------------------------
AFG is engaged primarily in specialty and multi-line property and
casualty insurance businesses and in the sale of tax-deferred annuities and
certain life and health insurance products.
Carl H. Lindner's principal occupation is as Chairman of the Board of
Directors and Chief Executive Officer of AFG.
Carl H. Lindner III's principal occupation is as Co-President of AFG.
S. Craig Lindner's principal occupations are as Co-President of
American Financial and President of Great American Financial Resources, Inc., an
affiliate of AFG.
Keith E. Lindner's principal occupations are as Co-President of
American Financial and Vice Chairman of the Board of Directors of Chiquita
Brands International, Inc., an affiliate of AFG.
The identity and background of the executive officers, directors and
controlling persons of AFG (other than the Lindner Family, which is set forth
above) are as follows:
1. Theodore H. Emmerich is a retired managing partner of Ernst & Young,
certified public accountants, Cincinnati, Ohio. He is presently a director of
AFG. Mr. Emmerich's address is 1201 Edgecliff Place, Cincinnati, Ohio, 45206.
2. James E. Evans' principal occupation is as Senior Vice President and
General Counsel of AFG.
3. Thomas M. Hunt's principal occupation is as President of Hunt
Petroleum Corporation, an oil and gas production company. He is presently a
director of AFG. Mr. Hunt's business address is 5000 Thanksgiving Tower, 1601
Elm Street, Dallas, Texas, 75201.
4. William R. Martin's principal occupation is as Chairman of the Board
of MB Computing, Inc., a privately held computer software development company.
He is presently a director of AFG. Mr. Martin's business address is 245 46th
Avenue, St. Petersburg Beach, Florida 33706.
- 11 -
5. Fred J. Runk's principal occupation is as Senior Vice President and
Treasurer of AFG.
6. Thomas E. Mischell's principal occupation is as Senior Vice
President - Taxes of AFG.
7. Keith A. Jensen's principal occupation is as Senior Vice President
of AFG.
Unless otherwise noted, the business address of AFG and each of the
persons listed above is One East Fourth Street, Cincinnati, Ohio, 45202, and all
of the individuals are citizens of the United States.
None of the persons listed above have during the last five years (i)
been convicted in a criminal proceeding (excluding traffic violations or similar
misdemeanors) or (ii) been a party to a civil proceeding of a judicial or
administrative body of competent jurisdiction and as a result of such proceeding
was or is subject to a judgment, decree or final order enjoining future
violations of, or prohibiting or mandating activities subject to, federal or
state securities laws or finding any violation with respect to such laws.
- 12 -
Exhibit 2
VOTING AGREEMENT
This AGREEMENT made as of the 26th day of February, 2001 is by and
among those entities identified on Schedule A hereto (collectively, with any of
their Affiliate Transferees, the "Former Senior Noteholders" and singularly a
"Former Senior Noteholder"), DVI Financial Services, Inc., a Delaware
corporation (collectively with any of its Affiliate Transferees, "DVI"), and
Medical Resources, Inc., a Delaware corporation (the "Corporation"). Each of the
Former Senior Noteholders, DVI and any Transferee of a Former Senior Noteholder
or DVI is hereinafter sometimes collectively referred to as the "Stockholders"
or individually as a "Stockholder"). Pursuant to the Plan (as defined below) the
Former Senior Noteholders have been issued shares of Common Stock representing
in the aggregate 83.96% of the issued and outstanding Common Stock as of the
date hereof and DVI has been issued shares of Common Stock representing 5.86% of
the issued and outstanding Common Stock as of the date hereof. The Stockholders
desire to set forth certain agreements among themselves and the Corporation as
to the management of the Corporation and the ownership of their shares of Common
Stock.
NOW THEREFORE, in consideration of the mutual promises contained herein
and other good and valuable consideration, receipt and sufficiency of which is
hereby acknowledged, the parties hereby agree as follows.
ARTICLE 1. DEFINITIONS.
1.1 All capitalized terms used herein and otherwise undefined shall
have the meaning ascribed to them in the Plan.
1.2 "Affiliate" means, as to any entity or person, any other entity or
person that such entity or person controls, or by which it is controlled, or
with which it is under common control and in the case of any natural person,
such person's spouse or issue or any trust for the benefit of such person and
such person's spouse or issue. As used in this definition the term "control"
means the possession, directly or indirectly, of the power to direct or cause
the direction of the management and policies of an entry or person, whether
through the ownership of voting securities, by contract or otherwise.
1.3 "Affiliate Transferee" means any Affiliate of a Former Senior
Noteholder or DVI to which such Former Senior Noteholder or DVI shall have
transferred any of its Shares.
1.4 "Change of Control" means (i) any merger, consolidation,
amalgamation or other similar corporate transaction in which the holders of
Common Stock of the Corporation, in the aggregate, immediately prior to such
transaction will hold, immediately after such transaction, less than fifty (50%)
percent of the aggregate voting power of the outstanding stock of the surviving
corporation or (ii) the Former Senior Noteholders and their Affiliate
Transferees sell in a single transaction or a series of related transactions,
Shares representing 90% or more of the original number of shares of Common Stock
issued in the aggregate to the Former Senior
- 13 -
Noteholders under the Plan (as such number may be adjusted to reflect any
subsequent stock split, combination or reclassification of the Common Stock) to
a party who is not a Former Senior Noteholder or who will not be an Affiliate
Transferee of a Former Senior Noteholder after such sale.
1.5 "Common Stock" means the Corporation's authorized common stock,
$.01 par value per share of which there are _______ shares authorized.
1.6 "Corporation Notice" has the meaning given therefor in Section 4.2.
1.7 "Equity Securities" has the meaning given therefor in Section 4.1.
1.8 "Excluded Securities" means Equity Securities excluded from the
operation of Section 4.1 by Section 4.5.
1.9 "Exchange Act" means the United States Securities Exchange Act of
1934, as amended, and the rules and regulations promulgated thereunder.
1.10 "Initial Post-Effective Public Offering" means the Corporation's
first firm commitment underwritten public offering of any of its Equity
Securities registered under the Securities Act after the effective date of the
Plan.
1.11 "Plan" means the Third Amended Joint Plan of Reorganization dated
November 6, 2000 as filed by the Corporation in the United States Bankruptcy
Court of the Southern District of New York.
1.12 "Pro Rata Share" has the meaning given therefor in Section 4.2.
1.13 "Requisite Former Senior Noteholders" means at the time in
question Former Senior Noteholders owning at least 50% of the Shares then owned
by all Former Senior Noteholders in the aggregate.
1.14 "SEC" means the United States Securities and Exchange Commission.
1.15 "Securities Act" means the United States Securities Act of 1933,
as amended, and the rules and regulations promulgated thereunder.
1.16 "Shares" means and includes all shares of Common Stock registered
in the stock records books of the Corporation in the name of any Stockholder or
a nominee of such Stockholder and any other shares of capital stock of the
Corporation which may be issued in exchange for or in respect of such shares of
Common Stock (whether by way of stock split, stock dividend, combination,
reclassification, reorganization or any other means).
1.17 "Transferee" means any person to whom Shares are transferred or
assigned by a Stockholder and any heirs or successors in interest of any
Stockholder, whether by operation of law or otherwise.
- 14 -
ARTICLE 2. VOTING AGREEMENT FOR ELECTION OF DIRECTORS, ETC.
2.1 Agreement to Vote. Until as provided in Section 2.2, each
Stockholder agrees to vote all of his Shares in favor of, and otherwise take all
actions as a the holder of such Shares required for:
(a) the election to the Board of Directors of the Corporation of the
nominees of the Stockholders selected pursuant to Section 2.2,
(b) the removal from the Board of Directors of any director, at the
request of the Stockholder(s )which nominated such director
pursuant to Section 2.2, and the election to the Board of
Directors of a substitute nominated by such Stockholder(s).
2.2 Selection of Nominees.
---------------------
(a) The Requisite Former Senior Noteholders shall have the right to
designate six (6) nominees and DVI shall have the right to designate one (1)
nominee for election to the Board of Directors of the Corporation provided the
nominee of DVI shall be reasonably satisfactory to the Requisite Former Senior
Noteholders. The rights of the Requisite Former Senior Noteholders under this
Section 2.2 (and the obligations of the other Stockholders pursuant to Section
2.1) shall terminate at the earlier of (i) the effective date of the
Corporation's Initial Post-Effective Public Offering or (ii) such time as the
number of Shares owned by the Former Senior Noteholders is less than forty
percent (40%) of the then issued and outstanding shares of Common Stock
(excluding Excluded Securities) or (iii) a Change of Control. The rights of DVI
under this Section 2.2 (and the obligations of the other Stockholders pursuant
to Section 2.1 in respect of any nominee to the Board of Directors of DVI) shall
terminate the earlier of (i) the effective date of the Corporation's Initial
Post-Effective Public Offering or (ii) such time as the number of Shares owned
by DVI shall be less than eighty percent (80%) of the original number of shares
of Common Stock issued to DVI under the Plan (as such number may be adjusted to
reflect any subsequent stock split, combination or reclassification of the
Common Stock) or (iii) a Change of Control.
(b) For so long as DVI has the right to designate one (1) nominee to
the Board, the Board shall have regular meetings to be held at least quarterly.
(c) The Corporation shall use its reasonable best efforts to maintain
at all times liability insurance for its officers and directors in connection
with their service to the Corporation or to any other person or enterprise or
employee benefit plan which such officer or director serves at the request of
the Corporation. Upon the request of any director nominated by the Former Senior
Noteholders or DVI pursuant to this Section 2.2, the Corporation will enter into
an indemnification agreement with such director in the form attached as Exhibit
A.
- 15 -
ARTICLE 3. GENERAL COVENANTS OF THE CORPORATION
3.1 Inspection and Information Rights. Each Stockholder owning Shares
representing at least 4% of the then issued and outstanding Common Stock shall
have the right (at it own expense) to visit and inspect any of the properties of
the Corporation (including books of account, reports and other papers), to make
extracts therefrom, and to discuss the affairs, finances and accounts of the
Corporation with its officers, employees and accountants (and by this provision
the Corporation authorizes its accountants to discuss such affairs, finances and
accounts with such Stockholder's representatives), and to review such
information as is reasonably requested all at such reasonable times and as often
as may be reasonably requested; provided, however, that the Corporation shall
not be obligated under this Section 3.1 unless such Stockholder and its
representatives shall have executed and delivered to the Corporation their
written agreement in form and substance satisfactory to the Corporation to
maintain such information in confidence and in no event shall the Corporation be
obligated to afford rights under this sentence to any competitor. The
Corporation will also furnish to each Stockholder, within five (5) business days
after the date of filing or delivery thereof, copies of all materials of
whatsoever nature filed or delivered by the Corporation with the SEC.
3.2 Rule 144 Reporting. With a view to making available to the
Stockholders the benefits of certain rules and regulations of the SEC which may
permit the sale of Shares to the public without registration, the Corporation
agrees to use its best efforts to:
(a) Make and keep public information available, as those terms are
understood and defined in SEC Rule 144 or any similar or analogous
rule promulgated under the Securities Act, at all times after the
effective date of the Initial Post-Effective Registration
Statement;
(b) File with the SEC, in a timely manner, all reports and other
documents required of the Corporation under the Exchange Act; and
(c) So long as a Stockholder owns any Shares, furnish to such
Stockholder forthwith upon request: a written statement by the
Corporation as to its compliance with the reporting requirements
of said Rule 144 of the Securities Act, and of the Exchange Act
(at any time after it has become subject to such reporting
requirements); a copy of the most recent annual or quarterly
report of the Corporation; and such other reports and documents as
a Stockholder may reasonably request in availing itself of any
rule or regulation of the SEC allowing it to sell any such
securities without registration.
- 16 -
Restrictive Agreements. For so long as any Stockholder shall have any
rights under this Agreement, the Corporation shall not enter into or become
obligated under any agreement or contract, including without limitation, any
loan agreement, promissory note (or other evidence of indebtedness), mortgage,
security agreement or lease, which by its terms specifically prevents or
restricts to the Corporation from performing its obligations under the
Agreement.
ARTICLE 4. ISSUANCES BY THE CORPORATION
4.1 Right of First Refusal on Primary Offerings. Until such right is
terminated pursuant to Section 4.4, each Stockholder shall have a right of first
refusal to purchase its Pro Rata Share (as defined below) of all Equity
Securities (as defined below) that the Corporation may, from time to time,
propose to sell and issue after the date of this Agreement, other than Excluded
Securities. The term "Equity Securities" shall mean (i) Common Stock or other
capital stock of the Corporation, (ii) any security convertible, with or without
consideration, into Common Stock or other capital stock of the Corporation
(including any option to purchase such a convertible security), (iii) any
security carrying any warrant or right to subscribe to or purchase Common Stock
or other capital stock of the Corporation or (iv) any such warrant or right.
4.2 Exercise of Rights. If the Corporation proposes to issue any Equity
Securities, it shall give each Stockholder written notice (a "Corporation
Notice") of its intention, describing the Equity Securities and the price and
the terms and conditions upon which the Corporation proposes to issue the same.
Each Stockholder shall have twenty (20) days from the receipt of a Corporation
Notice to agree to purchase up to its Pro Rata Share (as defined below) of such
Equity Securities for the price and upon the terms and conditions specified in
such Corporation Notice by giving written notice to the Corporation and stating
therein the quantity (up to its Pro Rata Share) of Equity Securities it agrees
to purchase. Notwithstanding the foregoing, the Corporation shall not be
required to offer or sell such Equity Securities to any Stockholder if such
offer or sale would cause the Corporation to be in violation of any applicable
federal or state securities or "blue sky" laws. The Corporation will use
reasonable best efforts to comply with all federal and applicable state
securities or "blue sky" laws provided in no event shall the Corporation be
required to (i) file a registration statement or qualification statement under
any such laws; (ii) qualify to do business in any jurisdiction; (iii) subject
itself to taxation in any jurisdiction or (iv) consent to general service of
process in any jurisdiction.
Each Stockholder's "Pro Rata Share" is equal to the ratio of (a) the
number of Shares (including all Shares issuable upon conversion or exercise of
any Equity Securities convertible or exercisable into shares of Common Stock but
in all cases excluding any Excluded Securities) of which such Stockholder is
deemed to be a holder immediately prior to the issuance of such Equity
Securities to (b) the total number of shares of the Corporation's outstanding
Common Stock (including all shares of Common Stock
- 17 -
issued or issuable upon conversion or exercise of any Equity Securities
convertible or exercisable into shares of Common Stock but in all cases
excluding any Excluded Securities) immediately prior to the issuance of such
Equity Securities.
4.3 Issuance of Equity Securities to Other Persons. If not all of the
Stockholders elect to purchase their entire Pro Rata Share of the Equity
Securities proposed to be issued, then the Corporation shall have ninety (90)
days thereafter to sell the Equity Securities in respect of which the
Stockholders' rights were not exercised to any other person(s), at a price and
upon general terms and conditions no more favorable to the purchasers thereof
than specified in the applicable Corporation Notice. If the Corporation has not
sold such Equity Securities within such ninety (90) days, the Corporation shall
not thereafter issue or sell any Equity Securities without first offering such
Equity Securities to the Stockholders in the manner provided in Section 4.2.
4.4 Termination and Waiver of Right of First Refusal. The right of
first refusal established by this Article 4 shall terminate upon the earlier of
(a) the effective date of the registration statement pertaining to the
Corporation's Initial Post-Effective Public Offering or (b) a Change of Control.
4.5 Excluded Securities. The rights of first refusal established by
this Article 4 shall not apply to:
(a) Equity Securities issued in the Corporation's Initial
Post-Effective Public Offering;
(b) shares of Common Stock (and any options, warrants or other Common
Stock purchase rights for such shares of Common Stock) issued or
to be issued to employees, officers or directors of, or
consultants or advisors to the Corporation or any subsidiary,
pursuant to compensation plans, or other similar arrangements that
are approved by the Corporation's Board of Directors;
(c) Equity Securities issued pursuant to exercise of warrants, options
or other rights, or conversion of convertible Equity Securities
outstanding as of the date of this Agreement or with respect to
which the Stockholders were given rights under this Article 4 on
the initial issuance thereof;
(d) any Equity Securities issued pursuant to a merger, consolidation,
acquisition or similar business combination;
(e) shares of Common Stock issued in connection with any stock split,
stock dividend or recapitalization by the Corporation; and
- 18 -
(f) Equity Securities issued in connection with the extension of
credit or other financing (including leasing arrangements) to the
Corporation or a subsidiary of the Corporation by any party who is
not a Stockholder, an Affiliate of any Stockholder or an Affiliate
of the Corporation.
4.6 Rights to Other Parties. Nothing in this Article 4 shall be deemed
to prohibit the Corporation from extending the rights set forth in this Article
4 to any other holders of Common Stock.
ARTICLE 5. MISCELLANEOUS.
5.1 Successors and Assigns. This Agreement shall be binding upon the
parties hereto and their Transferees; provided, no Transferee shall be entitled
to any benefits under this Agreement unless such Transferee shall have executed
and delivered to the Corporation its written agreement to be bound by the terms
of this Agreement to the same extent as its transferor in form and substance
satisfactory to the Requisite Former Senior Noteholders and (a) such Transferee
is already a Stockholder or is an Affiliate Transferee or (b) the transfer to
such Transferee is of Shares representing at least 5% of the then issued and
outstanding Common Stock or (c) the transfer to such Transferee is of the
original number of shares of Common Stock issued to the transferring Stockholder
under the Plan (as such number may be adjusted to reflect any subsequent stock
split, combination or reclassification of the Common Stock).
5.2 Term and Termination. Unless the rights granted hereby are sooner
terminated by the express provisions herein, this Agreement shall terminate upon
mutual written agreement of all of the Stockholders.
5.3 Amendments. This Agreement may be amended or modified in whole or
in part only by an instrument in writing signed by all Stockholders
and the Corporation.
5.4 Entire Agreement. This Agreement constitutes the entire agreement
between the parties, and all premises, representations, understandings,
warranties and agreements with reference to the subject matter hereof have been
expressed herein or in the documents incorporated herein by reference.
5.5 Applicable Law. This Agreement shall be governed by and construed
and enforced in accordance with the laws of the State of
Delaware.
5.6 Disputes. All disputes arising in connection with this Agreement
and/or the transactions contemplated hereby shall be submitted to arbitration in
New York, New York before a single arbiter selected by the Corporation. The
parties specifically agree that the arbitrator shall have the power to issue
preliminary and permanent injunctive relief and to grant prejudgment security.
- 19 -
Counterparts. This Agreement may be executed in multiple counterparts,
each of which shall be deemed an original but all of which together shall
constitute one and the same instrument.
5.7 Effect of Headings. Any title of an article or section heading
herein contained is for convenience or reference only and shall not affect the
meaning or construction of any of the provisions hereof.
5.8 Injunctive Relief. It is acknowledged that it will be impossible to
measure the damages that would be suffered by a party if any other party fails
to comply with the provisions of this Agreement and that in the event of any
such failure, the non-defaulting parties will not have an adequate remedy at
law. The non-defaulting parties shall, therefore, be entitled to obtain specific
performance of the defaulting party's obligations hereunder and to obtain
immediate injunctive relief. The defaulting party shall not argue, as a defense
to any proceeding for such specific performance or injunctive relief, that the
non-defaulting parties have an adequate remedy at law.
5.9 Severability. In case any provision of the Agreement shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
5.10 Delays or Omissions. It is agreed that no delay or omission to
exercise any right, power or remedy accruing to any party, upon any breach,
default or noncompliance of any other party under this Agreement shall impair
any such right, power or remedy, nor shall it be construed to be a waiver of or
in any such breach, default or noncompliance, or any acquiescence therein, or of
or in any similar breach, default or noncompliance thereafter occurring. It is
further agreed that any waiver, permit, consent or approval of any kind or
character on the part of any party of any breach, default or noncompliance under
the Agreement or any waiver on the part of any party of any provisions or
conditions of this Agreement must be in writing and shall be effective only to
the extent specifically set forth in such writing.
5.11 Notices and Consents. Notices. All notices and other written
communications provided for hereunder shall be given in writing and sent by
overnight delivery service (with charges prepaid) or by facsimile transmission
with the original of such transmission being sent by overnight delivery service
(with charges prepaid) by the next succeeding Business Day and (i) if to a
Stockholder addressed to such Stockholder at such address or fax number as is
specified for such Stockholder after its signature to this Agreement; and (ii)
if to the Corporation, addressed to it at 155 State Street, Hackensack, New
Jersey 07602, Attention: General Counsel, Fax No. (201) 488-8230 or at such
other address or fax number as such Stockholder or the Corporation shall have
specified to other party hereto in writing given in accordance with this Section
5.11. Notice given in accordance with this Section 5.11 shall be effective upon
the earlier of the date of delivery or the second Business Day at the place of
delivery after dispatch.
- 20 -
5.12 Pronouns. All pronouns contained herein, and any variations
thereof, shall be deemed to refer to the masculine, feminine or neutral,
singular or plural, as to the identity of the parties hereto may require.
5.13 Legend. Each certificate evidencing any of the Shares shall bear a
legend substantially as follows:
"The shares represented by this certificate are subject to
certain voting agreements and may be entitled to certain
benefits in accordance with and subject to all the terms and
conditions of a certain Voting Agreement dated as of
__________, 2000, a copy of which the Corporation will furnish
to the holder of this certificate upon request and without
charge."
- 21 -
IN WITNESS WHEREOF, this Agreement has been executed under seal as of
the date and year first written above.
COMPANY: MEDICAL RESOURCES, INC.
By: /s/ Christopher J. Joyce
---------------------------------------
Name: Christopher J. Joyce
Title: Co-Chief Executive Officer
STOCKHOLDERS: [NAME]
By:
---------------------------------------
Name:
Title:
Address for Notices:
---------------------------------------
---------------------------------------
---------------------------------------
- 22 -
FORMER SENIOR
NOTEHOLDERS: JOHN HANCOCK LIFE INSURANCE COMPANY
By: /s/ Stephen J. Blewitt
----------------------------------------
Name: Stephen J. Blewitt
Title: Managing Director
Address for Notices:
200 Clarendon Street
Boston, MA 02117
Attention: Bond & Corporate Finance
Group, T-57
- 23 -
JOHN HANCOCK VARIABLE LIFE INSURANCE
COMPANY
By: /s/ Stephen J. Blewitt
----------------------------------------
Name: Stephen J. Blewitt
Title: Authorized Signatory
Address for Notices:
200 Clarendon Street
Boston, MA 02117
Attention: Bond & Corporate Finance
Group, T-57
- 24 -
INVESTORS PARTNER LIFE INSURANCE
COMPANY
By: /s/ Stephen J. Blewitt
-----------------------------------------
Name: Stephen J. Blewitt
Title: Authorized Signatory
Address for Notices:
200 Clarendon Street
Boston, MA 02117
Attention: Bond & Corporate Finance
Group, T-57
- 25 -
MELLON BANK, N.A., solely in its capacity
as Trustee for The Long Term Investment
Trust, (as directed by John Hancock Financial
Services, Inc.), and not in its individual
capacity
By: /s/ Carole Bruno
-----------------------------------------
Name: Carole Bruno
Title: Authorized Signatory
Address for Notices:
200 Clarendon Street
Boston, MA 02117
Attention: Bond & Corporate Finance
Group, T-57
The decision to participate in the investment, any representations made
herein by the participant, and any actions taken hereunder by the
participant has/have been made solely at the direction of the
investment fiduciary who has sole investment discretion with respect to
this investment.
- 26 -
THE NORTHERN TRUST COMPANY, AS TRUSTEE
OF THE LUCENT TECHNOLOGIES INC. MASTER
PENSION TRUST
By: JOHN HANCOCK LIFE INSURANCE
COMPANY, as Investment Manager
By: /s/ Stephen J. Blewitt
----------------------------------------
Name: Stephen J. Blewitt
Title: Managing Director
Address for Notices:
200 Clarendon Street
Boston, MA 02117
Attention: Bond & Corporate Finance
Group, T-57
- 27 -
AUSA LIFE INSURANCE COMPANY, INC.
By: /s/ Mark E. Dunn
-----------------------------------------
Name: Mark E. Dunn
Title: Vice President
Address for Notices:
AEGON USA Investment Management
4333 Edgewood Road, N.E.
Cedar Rapids, IA 52499
Attention: Mark Dunn
- 28 -
LIFE INVESTORS INSURANCE COMPANY OF
AMERICA
By: /s/ Mark E. Dunn
-------------------------------------
Name: Mark E. Dunn
Title: Vice President
Address for Notices:
AEGON USA Investment Management
4333 Edgewood Road, N.E.
Cedar Rapids, IA 52499
Attention: Mark Dunn
- 29 -
GREAT AMERICAN LIFE INSURANCE
COMPANY
By: /s/ Mark F. Muething
-----------------------------------------
Name: Mark F. Muething
Title: Executive Vice President
Address for Notices:
American Financial Group
1 East 4th Street, 3rd Floor
Cincinnati, OH 45202
Attention: Joanne Schubert
- 30 -
SALKELD & CO., (as nominee of General Electric
Capital Assurance Company (f/k/a Great Northern
Insured Annuity Corporation)
By: /s/ Kristina Clohesy
-----------------------------------------
Name: Kristina Clohesy
Title: Reorganization Administrator
Address for Notices:
GE Capital Assurance Co.
601 Union Street, Suite 1300
Seattle, WA 98101
Attention: Morian Mooers
- 31 -
COVA FINANCIAL SERVICES LIFE
INSURANCE COMPANY
By: /s/ Jacqueline D. Jenkins
--------------------------------------
Name: Jacqueline D. Jenkins
Title: Authorized Signatory
Address for Notices:
MetLife
334 Madison Avenue
Convent Station, NJ 07961
Attention: Mike Cazayoux
- 32 -
HARE & CO (as nominee of Lincoln National Life
Insurance Company)
By: /s/ Patrick M. Dodd
-----------------------------------------
Name: Patrick M. Dodd
Title: Authorized Officer
Address for Notices:
Liberty Capital
2000 Wade Hampton Boulevard
Greenville, SC 29615
Attention: Pete Dodd
- 33 -
AMERICAN BANKERS INSURANCE
COMPANY OF FLORIDA
By: /s/ Robert C. Lindberg
---------------------------------------
Name: Robert C. Lindberg
Title: Vice President
Address for Notices:
Fortis Corporation
1 Chase Manhattan Plaza, 41st Floor
New York, NY 10005
Attention: Robert Lindberg
- 34 -
OCCIDENTAL LIFE INSURANCE COMPANY
OF NORTH CAROLINA
By: /s/ J. Joseph Veranth
-----------------------------------------
Name: J. Joseph Veranth
Title: Executive Vice President
Address for Notices:
Dana Investment Advisors, Inc.
P.O. Box 1067
Brookfield, WI 53008-1067
Attn: J. Joseph Veranth
- 35 -
PENINSULAR LIFE INSURANCE COMPANY CO.
By: /s/ Susan D. Royles
-----------------------------------------
Name: Susan D. Royles
Title: Vice President
Address for Notices:
Conning Asset Management
185 Asylum Street
City Place II
Hartford, CT 06103
Attention: Susan Royles
- 36 -
EXECUTIVE RISK INDEMNITY INC.
By: /s/ Marjorie D. Raines
------------------------------------------
Name: Marjorie D. Raines
Title: Senior Vice President
Address for Notices:
Chubb Financial Group
15 Mountain View Road
Warren, NJ 07060
Attention: Bill Clarkson
- 37 -
DVI: DVI FINANCIAL SERVICES, INC.
By: /s/ Sara Lee Keller
-----------------------------------------
Name: Sara Lee Keller
Title: Deputy General Counsel
Address for Notices:
DVI Financial Services, Inc.
2500 York Road
Jamison, PA 18929
Attn: Richard E. Miller, President
- 38 -
EXHIBIT 3
STOCKHOLDERS AGREEMENT
This AGREEMENT made as of the 26th day of February, 2001 is by and
among those entities identified on the signature page hereto as the Former
Senior Noteholders (collectively with any of their Affiliate Transferees, the
"Former Senior Noteholders" and singularly a "Former Senior Noteholder") and
Christopher Joyce and Geoffrey Whynot (collectively with any of their Affiliate
Transferees, "Executive Management") and Medical Resources, Inc., a Delaware
corporation (the "Corporation") and DVI Financial Services, Inc., a Delaware
corporation (collectively, with any of its Affiliate Transferees, "DVI"). Each
of the Former Senior Noteholders, Executive Management and any Transferee of a
Former Senior Noteholder or Executive Management is hereinafter sometimes
collectively referred to as the "Stockholders" or individually as a
"Stockholder"). Pursuant to the Plan (as defined below) the Former Senior
Noteholders are to be issued shares of Common Stock representing in the
aggregate 83.96% of the issued and outstanding Common Stock as of the effective
date of the Plan, Executive Management are to be issued shares of Common Stock
representing 2% of the issued and outstanding Common Stock as of the effective
date of the Plan and DVI is to be issued shares of Common Stock representing
5.86% of the issued and outstanding Common Stock as of the effective date of the
Plan. The Stockholders desire to set forth certain agreements among themselves
and the Corporation as to the management of the Corporation and the ownership of
their shares of Common Stock. DVI is a party to this Agreement as a holder of
Registrable Securities solely for the purposes of accepting and agreeing to the
provisions of Articles 4 and 5 and the defined terms used therein.
NOW THEREFORE, in consideration of the mutual promises contained herein
and other good and valuable consideration, receipt and sufficiency of which is
hereby acknowledged, the parties hereby agree as follows.
ARTICLE 1. DEFINITIONS.
1.1 All capitalized terms used herein and otherwise undefined shall
have the meaning ascribed to them in the Plan.
1.2 "Affiliate" means, as to any entity or person, any other entity or
person that such entity or person controls, or by which it is controlled, or
with which it is under common control and in the case of any natural person,
such person's spouse or issue or any trust for the benefit of such person and
such person's spouse or issue. As used in this definition the term "control"
means the possession, directly or indirectly, of the power to direct or cause
the direction of the management and policies of an entry or person, whether
through the ownership of voting securities, by contract or otherwise.
1.3 "Affiliate Transferee" means any Affiliate of a Former Senior
Noteholder or Executive Management to which such Former Senior Noteholder or
Executive Management shall have transferred any of its Shares or any Affiliate
of DVI to which DVI shall have transferred any of its Registrable Securities.
- 39 -
1.4 "Common Stock" means the Corporation's authorized common stock,
$.01 par value per share.
1.5 "Demand Registration" has the meaning given therefor in Section
4.1.
1.6 "Demand Request" has the meaning given therefor in Section 4.1.
1.7 "Exchange Act" means the United States Securities Exchange Act of
1934, as amended, and the rules and regulations promulgated thereunder.
1.8 "indemnified party" has the meaning given therefor in Section 4.7.
1.9 "indemnifying party" has the meaning given therefor in Section 4.7.
1.10 "Initial Post-Effective Public Offering" means the Corporation's
first firm commitment underwritten public offering of any of its equity
securities registered under the Securities Act after the effective date of the
Plan.
1.11 "Piggyback Registration" has the meaning given therefor in Section
4.2.
1.12 "Plan" means the Third Amended Joint Plan of Reorganization dated
November 6, 2000 as filed by the Corporation in the United States Bankruptcy
Court of the Southern District of New York.
1.13 "Plan Value" means $10 per share of Common Stock as appropriately
adjusted from time to time to reflect any stock splits, combinations or similar
transactions in respect of the Common Stock or dividends paid on the Common
Stock after the effective date of the Plan.
1.14 "Register," registered," and "registration" refer to a
registration effected by preparing and filing a registration statement in
compliance with the Securities Act, and the declaration or ordering of
effectiveness of such registration statement.
1.15 "Registrable Securities" means all shares of Common Stock issued
to the Former Senior Noteholders, Executive Management or DVI pursuant to the
Plan and any other shares of capital stock of the Corporation which may be
issued in exchange for or in respect of such shares of Common Stock (whether by
way of stock split, stock dividend, combination, reclassification,
reorganization or any other means) provided any such shares of Common Stock (or
other capital stock) which have been sold after the date hereof pursuant to a
registration statement or to the public through a broker, dealer or market maker
or in compliance with Rule 144 or Rule 144A (or any similar rule then in force)
under the Securities Act or repurchased by the Corporation or any subsidiary of
the Corporation shall cease to be Registrable Securities.
- 40 -
1.16 "Registration Expense" has the meaning given therefor in Section
4.6.
1.17 "Requisite Former Senior Noteholders" means at the time in
question Former Senior Noteholders owning at least 50% of the Shares then owned
by all Former Senior Noteholders in the aggregate.
1.18 "SEC" means the United States Securities and Exchange Commission.
1.19 "Securities Act" means the United States Securities Act of 1933,
as
amended, and the rules and regulations promulgated thereunder.
1.20 "Selling Former Senior Noteholders" has the meaning given therefor
in Section 3.1.
1.21 "Shares" means and includes all shares of Common Stock registered
in the stock records books of the Corporation in the name of any Stockholder or
a nominee of such Stockholder and any other shares of capital stock of the
Corporation which may be issued in exchange for or in respect of such shares of
Common Stock (whether by way of stock split, stock dividend, combination,
reclassification, reorganization or any other means).
1.22 "Transferee" means any person to whom Shares are transferred or
assigned by a Stockholder and any heirs or successors in interest of any
Stockholder, whether by operation of law or otherwise and, in the case of DVI,
any person to whom any of DVI's Registrable Securities are transferred or
assigned by DVI and any successor in interest, whether by operation of law or
otherwise.
ARTICLE 2. VOTING AGREEMENTS
2.1 Board of Directors. Each Stockholder agrees to vote all of his
Shares in favor of, and otherwise take all actions as the holder of such Shares
required for:
(a) the election to the Board of Directors of the Corporation of up to
six nominees selected by the Requisite Former Senior Noteholders;
and
(b) the removal from the Board of Directors of any director nominated
by the Requisite Former Senior Noteholders, at the request of the
Requisite Former Senior Noteholders, and the election to the Board
of Directors of any substitute therefor nominated by the Requisite
Former Senior Noteholders.
2.2 Modification of Charter Documents; Other Voting Agreement. Each
Stockholder covenants and agrees that he will:
- 41 -
(a) not vote any of his Shares, and to the extent he has the power to
do so and otherwise may lawfully exercise such power, will not to
permit any director elected by the Stockholders pursuant to
Section 2.1 to vote, in favor of:
(i) the adoption of any amendment to or waiver of any provision
of the Corporation's Certificate of Incorporation or Bylaws
as in effect as of the date hereof pursuant to the Plan
(other than in connection with the Initial Post-Effective
Public Offering if such amendments have been recommended by
the underwriters in connection therewith);
(ii) any alteration or change to the designation or the powers,
preferences or rights or the qualifications, limitations or
restrictions of the Common Stock (other than in connection
with the Initial Post-Effective Public Offering if such
amendments have been recommended by the underwriters in
connection therewith);
(iii) any (A) authorization or creation of or amendment to any
class or series of stock ranking, either as to payment of
dividends, distribution of assets or redemption, prior to
the Common Stock, or (B) authorization or creation of or
amendment to any shares of any class or series or any bonds,
debentures, notes or other obligations convertible into or
exchangeable for, or having optional rights to purchase, any
stock having any such ranking prior to the Common Stock;
(iv) any increase in the authorized number of shares of Common
Stock (other than in connection with the Initial
Post-Effective Public Offering if such amendments have been
recommended by the underwriters in connection therewith);
(v) the liquidation, dissolution, winding-up or similar
transaction of the Corporation or sale of all or
substantially all of the assets of the Corporation or any
subsidiary thereof;
(vi) the redemption or repurchase of any shares of Common Stock
(except for shares of Common Stock issued to employees,
officers, directors or consultants which is redeemed in
connection with the termination of such person's employment
with the Corporation);
(vii) the authorization of a dividend on any shares of capital
stock; or
- 42 -
(viii)any merger, consolidation, sale of stock or other
transaction in which the holders of Common Stock of the
Corporation, in the aggregate, immediately prior to such
transaction will hold, immediately after such transaction,
less than fifty percent (50%) of the aggregate voting power
of outstanding stock of the surviving Corporation;
unlessotherwise consented to by the Requisite Former Senior
Noteholders; and
(b) if requested by Former Senior Noteholders owning Shares
representing more than fifty (50%) percent of the then issued and
outstanding shares of Common Stock, vote all his Shares and, to
the extent he has the power to do so and otherwise may lawfully
exercise such power, will instruct any director elected by the
Stockholders pursuant to Section 2.1 to vote, in favor (A) of any
transaction identified in clauses (a)(i) through (a)(vii) above;
and (B) of any transaction identified in clause (a)(viii) if the
consideration to be received by the holders of shares of Common
Stock in such transaction is not less than the then current Plan
Value.
ARTICLE 3. RIGHTS OF CO-SALE; REQUIRED CO-SALE.
3.1 Tag-Along/Drag-Along. If one or more Former Senior Noteholders
("Selling Former Senior Noteholders") propose to sell, in a single transaction
or series of related transactions, Shares representing more than 40% of the
Common Stock at the time outstanding to a party who is not a Former Senior
Noteholder or who will not be an Affiliate Transferee of a Former Senior
Noteholder after such sale, the other Stockholders have the right to participate
in such sale to the extent provided in Section 3.2. Further, if such sale of
Shares by the Selling Former Noteholders represents more than 50% of the Common
Stock at the time outstanding and is at a price per share not less than the
current Plan Value, the other Stockholders shall, if requested by the Selling
Former Senior Noteholders, sell to the purchaser of such Selling Former Senior
Noteholders' Shares all of their Shares on the same terms and conditions as such
Selling Former Senior Noteholders; provided, the other Stockholders shall not be
obligated to sell their Shares pursuant to this sentence unless the Selling
Former Senior Noteholders propose to sell all of their Shares in such
transaction. Not less than thirty (30) days prior to any proposed sale of Shares
by Selling Former Senior Noteholders, the Selling Former Senior Noteholders
shall give the other Stockholders written notice of the proposed sale (a "Sale
Notice") which shall specify the terms and conditions of such sale and whether
or not the Selling Former Senior Noteholders are exercising their rights under
clause (b) of this Section 3.1 to require to other Stockholders to sell their
Shares on the same terms and conditions.
- 43 -
3.2 Participation Procedures. If the other Stockholders are not
required, but are entitled and wish, to participate in such sale (each a
"Participating Stockholder"), each Participating Stockholder shall give the
Selling Former Senior Noteholders written notice (a "Participation Notice") of
its election to participate not later than fifteen (15) days after the date of
the delivery of the Sale Notice and specifying the number of Shares which it
wishes to sell. If the Selling Former Senior Noteholders receive any
Participation Notices, they shall not sell any Shares in such transaction unless
the purchaser thereof at the same time purchases from each Participating
Stockholder on the same terms and conditions, that number of Shares at least
equal to the lesser of:
(a) the total number of Shares which such Participating Stockholder
specified in its Participation Notice that it wished to sell; or
(b) the number of Shares derived by multiplying the total number of
Shares then owned by such Participating Stockholder by a fraction,
the numerator of which is equal to the number of Shares that are
to be purchased by the proposed purchaser from the Selling Former
Senior Noteholders and the denominator of which is the aggregate
number of Shares owned by the Selling Former Senior Noteholders
prior to such sale;
provided, the number of Shares to be included by each Participating Stockholder
and each Selling Former Senior Noteholders in such sale shall be reduced pro
rata based on the number of Shares proposed to be included by each in such sale
until the aggregate number of Shares to be sold is equal to the number of Shares
that the proposed purchaser desires to purchase.
ARTICLE 4. REGISTRATION RIGHTS
4.1 Demand Registration.
(a) Requests for Registration. At any time following the first
anniversary of the effective date of the Plan, Former Senior
Noteholders owning Registrable Securities representing at least
15% of the then issued and outstanding shares of Common Stock
shall be entitled to request registration (a "Demand Request")
under the Securities Act of all or any portion of their
Registrable Securities. A registration requested pursuant to this
Section 4.1(a) is referred to in this Agreement as a "Demand
Registration". The Demand Request shall specify the approximate
number of Registrable Securities requested to be registered and
the intended method of distribution thereof. Within ten days after
receipt of a Demand Request, the Corporation shall give written
notice of such requested registration to each other holder of
Registrable
- 44 -
Securities and shall include in such registration all Registrable
Securities with respect to which the Corporation has received
written requests for inclusion therein, including without
limitation, but subject to Section 4.1(c), all Registrable
Securities requested for inclusion pursuant to Section 4.2, and
the intended method of distribution thereof within 30 days after
the receipt of the Corporation's notice.
(b) Number of Demand Registrations. The Former Senior Noteholders as a
group shall be entitled to request two Demand Registrations. The
Corporation shall pay all Registration Expenses in connection with
the Demand Registration and shall pay all Registration Expenses in
connection with a registration initiated as a Demand Registration
whether or not it becomes effective or is not otherwise counted as
a Demand Registration. A registration shall not count as a Demand
Registration until it has become effective under the Securities
Act and any blue sky laws of any applicable state and remains so
effective until the earlier of the date all Registrable Securities
included therein have been sold pursuant thereto or the time
periods for which such registration statement is required to be
maintained as effective under Section 4.4(a) have expired (unless
such registration statement is withdrawn at the request of the
holders of not less than a majority of the Registrable Securities
included therein (other than a withdrawal in the case described in
the next following sentence or in the case described in Section
4.1(d)). If so requested in the Demand Request and if the market
value of the Registrable Securities to be included in such
registration shall have current market value of not less than
$5,000,000, the Corporation shall use its best efforts to effect
such Demand Registration as an underwritten offering on a firm
commitment basis, provided if the Corporation is unable to effect
the registration as an underwritten offering on a firm commitment
basis, the Corporation will continue to effect such registration
if requested to do so by holders of not less than a majority of
the Registrable Securities to be included therein in accordance
with the method of distribution as is specified by such holders
and in such case the registration statement shall count as a
Demand Registration; otherwise such Demand Request shall be deemed
not to have been made and shall not count as a Demand
Registration.
- 45 -
(c) Priority on Demand Registration. All Registrable Securities
requested to be included in the Demand Registration shall be
included unless the offering is to be underwritten and the
managing underwriters advise the Corporation in writing that all
of the Registrable Securities requested to be included may not be
sold without adversely affecting the marketability of the
offering. In such case, the number of such Registrable Securities
included in the offering, if any, shall be allocated first, pro
rata among the Former Senior Noteholders on the basis of the total
number of Registrable Securities requested by each such holder to
be included and second, pro rata among the other holders of
Registrable Securities requested to be included pursuant to
Section 4.2 on the basis of the total number of Registrable
Securities requested to be included pursuant to Section 4.2. If
all Registrable Securities requested to be included in the Demand
Registration are so included, the Corporation may include in the
Demand Registration other securities to be sold by the Corporation
for its own account or to be sold by other Persons, unless the
managing underwriters advise the Corporation in writing that in
their opinion the inclusion of such other securities will cause
the number of Registrable Securities and other securities
requested to be included in the offering to exceed the number
which may be sold without adversely affecting the marketability of
the offering.
(d) Restrictions on Demand Registration. The Corporation shall not be
obligated to effect a Demand Registration within 120 days after
the effective date of a previous registration of securities by the
Corporation under the Securities Act if the holders of Registrable
Securities were given piggyback rights in such previous
registration pursuant to Section 4.2 and all Registrable
Securities requested to be included in such registration pursuant
to Section 4.2 were included therein. The Corporation shall be
entitled to postpone, for up to 90 days (or for up to 120 days if
the Demand Request relating to the registration statement is
received during the month of December or the first quarter of any
calendar year) the filing of any registration statement otherwise
required to be prepared and filed by it pursuant hereto if, at the
time it receives a Demand Request, the Corporation would be
required to prepare for inclusion or incorporation into the
registration statement any financial statements other than those
that it customarily prepares or the Corporation determines in its
reasonable business judgment that such registration and offering
would materially interfere with any financing, refinancing,
acquisition, disposition, corporate reorganization or other
material corporate
- 46 -
transactions or development involving the Corporation or any of
its subsidiaries and promptly gives the holders of the Registrable
Securities making the Demand Request written notice of such
determination; provided, that if the Corporation shall so postpone
the filing of a registration statement, the holders of a majority
of the Registrable Securities making the Demand Request shall have
the right to withdraw the Demand Request by giving written notice
to the Corporation within 30 days after the receipt of notice of
postponement and, in the event of such withdrawal, the withdrawn
Demand Request shall be deemed not to have been made and shall not
count as a Demand Registration.
(e) Selection of Underwriters. The Corporation shall have the right to
select the investment banker(s) and manager(s) to administer the
Demand Registration, subject to the approval of the holders of a
majority of the Registrable Securities to be included therein,
which approval shall not be unreasonably withheld.
(f) Grant of Other Demand Registration Rights. From and after the date
hereof, the Corporation shall not grant to any Persons the right
to request the Corporation to register any equity securities of
the Corporation without the prior written consent of Former Senior
Noteholders owning Registrable Securities representing a majority
of Registrable Securities owned by all Former Senior Noteholders
at the time provided, that the -------- Corporation may without
the consent of such Former Senior Noteholders, grant rights to
other Persons to (i) participate in Piggyback Registrations so
long as such rights are subordinate to the rights of the holders
of Registrable Securities with respect to such registrations; and
(ii) request registrations so long as the holders of Registrable
Securities are entitled to participate in any such registrations
pari passu with such Persons.
4.2 Piggyback Registrations.
(a) Right to Piggyback. Whenever the Corporation proposes to register
any of its equity securities under the Securities Act (including,
without limitation, in a Demand Registration) and the registration
form to be used may be used for the registration of Registrable
Securities, the Corporation shall give prompt written notice to
each holder of Registrable Securities of its intention to effect
such a registration and shall include in such registration (a
"Piggyback Registration") all Registrable Securities with respect
to which the Corporation has
- 47 -
(b) received written requests for inclusion therein (which request
shall state the intended method of distribution thereof) within 30
days after the receipt of the Corporation's notice on the same
terms and conditions as the other securities included therein.
(c) Piggyback Expenses. The Registration Expenses of the holders of
Registrable Securities shall be paid by the Corporation in all
Piggyback Registrations.
(d) Priority on Primary Registrations. If a Piggyback Registration is
an underwritten primary registration on behalf of the Corporation,
and the managing underwriters advise the Corporation in writing
that in their opinion the number of securities requested to be
included in such registration exceeds the number which can be sold
in such offering without adversely affecting the marketability of
the offering, the Corporation shall include in such registration
first, the securities the Corporation proposes to sell and second,
the Registrable Securities requested to be included therein and
then (and only then) any other securities requested to be included
in such registration. If less than all the Registrable Securities
requested to be included in the Piggyback Registration may be so
included, the number of Registrable Securities included in the
Piggyback Registration shall be allocated pro rata among the
holders of Registrable Securities on the basis of the number of
Registrable Securities requested by each such holder to be
included therein.
(e) Priority on Secondary Registrations. If a Piggyback Registration
is an underwritten secondary registration on behalf of other
holders of the Corporation's securities other than a Demand
Registration, and the managing underwriters advise the Corporation
in writing that in their opinion the number of securities
requested to be included in such registration exceeds the number
which can be sold in such offering without adversely affecting the
marketability of the offering, the Corporation shall include in
such registration the Registrable Securities and the other
securities on whose behalf the registration was initially being
made pro rata among the holders of the Registrable Securities and
the holders of such other securities on the basis of the number of
Registrable Securities and other securities requested by each such
holder to be included therein. If the Piggyback Registration is a
Demand Registration and the managing underwriters advise the
Corporation in writing that in their opinion the number of
securities requested to be included in such registration exceeds
the number which can be sold in such offering without adversely
affecting the marketability of the offering, the provisions of
Section 4.1(c) shall govern.
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(f) Continued Obligation for Demand Registration. No registration of
Registrable Securities effected under this Section 4.2 shall
relieve the Corporation of its obligation to effect registration
of the Registrable Securities upon any Demand Request made
pursuant to the provisions of Section 4.1.
(g) Withdrawal or Delay. If at any time after giving written notice of
its intention to register any securities and prior to the
effective date of the registration statement filed in connection
with such registration, the Corporation shall determine for any
reason not to register or to delay registration of such
securities, the Corporation may, at its election, give written
notice of such determination to each holder of Registrable
Securities requested to be included in such offering and (i) in
the case of a determination not to register, shall be relieved of
its obligation to register any Registrable Securities in
connection with such registration (but not from any obligation of
the Corporation to pay the Registration Expenses in connection
therewith), without prejudice, however, to the rights of any
holder of Registrable Securities to include Registrable Securities
in any future registrations pursuant to this Section 4.2 or to
cause a registration to be effected as a Demand Registration under
Section 4.1, and (ii) in the case of a determination to delay
registering, shall be permitted to delay registering any
Registrable Securities, for the same period as the delay in
registering such other securities.
4.3 Holdback Agreements.
(a) No holder of Registrable Securities shall effect any public sale
or distribution (which shall not include any sales pursuant to
Rule 144 or 144A) of equity securities of the Corporation, or any
securities convertible into or exchangeable or exercisable for
such securities, during the seven days prior to and the 120-day
period following the effective date of the registration statement
for a Demand Registration or any underwritten Piggyback
Registration in which Registrable Securities are or may be
included (except as part of the offering covered by such
registration statement) unless the underwriters managing the
registered public offering otherwise agree.
49 -
The Corporation shall not effect any public sale or distribution of
shares of Common Stock or any other equity securities of the Corporation, during
the seven days prior to and during the 90-day period following the effective
date of any underwritten Demand Registration or any underwritten Piggyback
Registration (except as part of such underwritten registration or pursuant to
registrations on Form S-8 or any successor form or pursuant to any shelf
registration statement then in effect for the benefit of any holders of the
Corporation's securities), unless the underwriters managing the registered
public offering otherwise agree.
4.4 Registration Procedures. Whenever any Registrable Securities are
required to be registered pursuant to this Agreement, the Corporation shall use
its reasonable best efforts to effect the registration and the sale of such
Registrable Securities in accordance with the intended method of disposition
thereof and pursuant thereto the Corporation shall as expeditiously as possible:
(a) prepare and file with the SEC a registration statement with
respect to such Registrable Securities on Form S-1 or such other
form of general applicability satisfactory to the managing
underwriter (or if the offering is not underwritten, the holders
of a majority of Registrable Securities included therein) and use
its reasonable best efforts to cause such registration statement
to become effective (provided that the Corporation may delay or
discontinue any registration statement effected under Section 4.1
in accordance with Section 4.1(d) or Section 4.2 in accordance
with Section 4.2(f)) and prepare and file with the SEC such
amendments and post-effective amendments to such registration
statement and supplements to the prospectus used in connection
therewith as may be necessary to keep such registration statement
effective under the Securities Act and the blue sky laws of any
applicable state for a period of not less than 90 days in the case
of an underwritten offering, and in any other offering, until the
disposition of all Registrable Securities covered by such
registration statement, but not longer than a period of six
months, unless at the expiration of such six month period, less
than 75% of the Registrable Securities covered by such
Registration Statement have been sold, then such period shall
automatically be extended for six additional months; provided that
at any time after the registration statement has been continuously
effective for six consecutive months, if the Corporation
determines in its reasonable business judgment that having such
registration statement remain in effect would materially interfere
with any financing, refinancing, acquisition, disposition,
corporate reorganization or other material corporate transaction
or development involving the Corporation or any of its
Subsidiaries or at any time after such registration statement has
been declared effective if the Corporation becomes the subject of
an unsolicited tender offer for at least a majority of its equity
securities,
- 50 -
the Corporation may, upon prior written notice to each holder of
Registrable Securities included therein, suspend such registration
statement for a period of not more than ninety (90) days, and in
no event shall the Corporation be entitled to exercise such right
more than once in any 12-month period;
(b) before filing a registration statement or prospectus or any
amendments or supplements thereto or incorporating any document by
reference therein, the Corporation shall furnish to the holders of
Registrable Securities included in such registration statement
copies of all such documents proposed to be filed or incorporated
therein, which documents shall be subject to the review and
comment of such holders and one counsel selected by such holders;
(c) notify in writing each holder of Registrable Securities included
in such registration statement of (i) the filing and effectiveness
of such registration statement or any amendment or post-effective
amendments thereto and the prospectus and any supplement thereto,
(ii) any request by the SEC for amendments or post-effective
amendments to the registration statement or supplements to the
prospectus or for additional information, (iii) the issuance by
the SEC of any stop order suspending the effectiveness of such
registration statement or the initiation or threatening of any
proceedings for that purpose, and (iv) the receipt by the
Corporation of any notification with respect to the suspension of
the qualification of the Registrable Securities for sale in any
jurisdiction or the initiation or threatening of any proceeding
for such purpose;
(d) comply with the provisions of the Securities Act with respect to
the disposition of all securities covered by such registration
statement during the period of, and in accordance with the
intended methods of, disposition by the sellers thereof as set
forth in such registration statement;
(e) furnish, without charge, to each holder of Registrable Securities
included in a registration statement such number of copies of such
registration statement, the prospectus included in such
registration statement (including each preliminary prospectus),
each amendment and supplement thereto, and such other documents as
such holder may reasonably request in order to facilitate the
disposition of the Registrable Securities included therein owned
by such holder and the Corporation hereby consents to the use of
each prospectus or any supplement thereto by each such holder and
the underwriters, if any, in connection with the offering and sale
of the Registrable Securities covered by such registration
statement or any amendment thereto;
- 51 -
(f) use its reasonable best efforts to register or qualify all
Registrable Securities included in a registration statement under
such other securities or blue sky laws of such jurisdictions as
any holder of such Registrable Securities reasonably requests and
do any and all other acts and things which may be reasonably
necessary or advisable to enable such holder to consummate the
disposition in such jurisdictions of such Registrable Securities
(provided that the Corporation shall not be required to (i)
qualify generally to do business in any jurisdiction where it
would not otherwise be required to qualify but for this
subparagraph (f), (ii) subject itself to taxation in any such
jurisdiction or (iii) consent to general service of process in any
such jurisdiction);
(g) immediately notify each holder of Registrable Securities included
in a 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 as a result of which the
prospectus included in such registration statement contains an
untrue statement of a material fact or omits any fact necessary to
make the statements therein not misleading, and shall prepare a
supplement or amendment to such prospectus so that, as thereafter
delivered to the purchasers of such Registrable Securities, such
prospectus shall not contain an untrue statement of a material
fact or omit to state any fact necessary to make the statements
therein not misleading;
(h) cause all Registrable Securities included in a registration
statement to be listed on each securities exchange on which
similar securities issued by the Corporation are then listed and,
if not so listed, but similar securities are then listed on the
NASD automated quotation system, to be listed on the NASD
automated quotation system and, if listed on the NASD automated
quotation system, use its reasonable best efforts to secure
designation of all such Registrable Securities as a NASDAQ
national market system security within the meaning of Rule 11Aa2-1
of the SEC or failing that, at such time as the Corporation
becomes eligible for such authorization, to secure NASDAQ
authorization for such Registrable Securities if available and,
without limiting the generality of the foregoing, to arrange for
at least two market makers to register as such with respect to
such Registrable Securities with the NASD;
- 52 -
(i) if the offering is underwritten, use its reasonable best efforts
to furnish on the date that Registrable Securities are delivered
to the underwriters for sale pursuant to such registration
statement, and to the extent required by any underwriting
agreement or from time to time upon request by any holder of
Registrable Securities in connection with its disposition of its
Registrable Securities under such registration statement: (i) an
opinion dated such date of counsel representing the Corporation
for the purposes of such registration, addressed to the
underwriters and to each such holder, stating that such
registration statement has become effective under the Securities
Act and that (A) to the best knowledge of such counsel, no stop
order suspending the effectiveness thereof has been issued and no
proceedings for that purpose have been instituted or are pending
or contemplated under the Securities Act, (B) the registration
statement, the related prospectus and each amendment or supplement
thereof appear on their face to be appropriately responsive in all
material respects with the requirements of the Securities Act
(except that such counsel need not express any opinion as to
financial statements or financial data contained therein) and (C)
to such other effect as may be reasonably requested by counsel for
the underwriters or by such holder or its counsel if such offering
is not underwritten and (ii) to the extent accounting standards
then permit, a letter dated such date from the independent public
accountants retained by the Corporation, addressed to the
underwriters and to each such holder, 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 Corporation 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, or such holder
if such offering is not underwritten, may reasonably request;
(j) provide a transfer agent and registrar for all Registrable
Securities included in a registration statement not later than the
effective date of such registration statement, and a CUSIP number
for all such Registrable Securities and provide the applicable
transfer agent with printed certificates or instruments for such
Registrable
- 53 -
Securities which are in a form eligible for deposit with
Depositary Trust Corporation and otherwise meeting the
requirements of any securities exchange on which such Registrable
Securities are then listed;
(k) cooperate with the holders of Registrable Securities included in a
registration statement and the underwriters, if any, to facilitate
the timely preparation and delivery of certificates representing
Registrable Securities to be sold not bearing any restrictive
legends; and to enable such Registrable Securities to be in such
denominations and registered in such names as the underwriters may
request at least two Business Days prior to any sale of such
Registrable Securities to the underwriters;
(l) enter into such customary agreements (including underwriting
agreements in customary form) as the underwriters of any
registration statement pursuant to an underwritten offering,
reasonably request in order to expedite or facilitate the
disposition of such Registrable Securities (including effecting a
stock split or a combination of shares);
(m) make available for inspection by any holder of Registrable
Securities included in a registration statement, any underwriter
participating in any disposition pursuant to such registration
statement and any attorney, accountant or other agent retained by
any such holder or underwriter, all financial and other records,
pertinent corporate documents and properties of the Corporation as
they deem necessary to conduct their due diligence review, and
cause the Corporation's officers, directors, employees and
independent accountants to supply all information reasonably
requested by any such holder, underwriter, attorney, accountant or
agent in connection with such registration statement;
(n) otherwise comply with the Securities Act, the Exchange Act, all
applicable rules and regulations of the SEC and all applicable
state blue sky and other securities laws, rules and regulations,
and make generally available to its security holders, earnings
statements satisfying the provisions of Section 11(a) of the
Securities Act, no later than 30 days after the end of any 12
month period (or 90 days if the end of such 12 month period
coincides with the end of a fiscal quarter or fiscal year,
respectively) of the Corporation (A) commencing at the end of any
month in which Registrable Securities are sold to underwriters in
an underwritten offering, or, (B) if not sold to underwriters in
such an offering, beginning within the first three months
commencing after the effective date of the registration statement,
which statements shall cover said 12 month periods;
- 54 -
(o) permit any holder of Registrable Securities which, in such
holder's sole and exclusive judgment, might be deemed to be an
underwriter or a controlling person of the Corporation, to
participate in the preparation of such registration or comparable
statement and to require the insertion therein of material,
furnished to the Corporation in writing, which in the reasonable
judgment of such holder and its counsel should be included; and
(p) if the offering is underwritten, promptly upon notification to the
Corporation from the managing underwriter of the price at which
the securities are to be sold under such registration statement,
and, in any event, prior to the effective date of the registration
statement filed in connection with such registration, the
Corporation shall advise each holder requesting inclusion of
Registrable Securities in such registration statement of such
price. If such price is below the price which is acceptable to a
holder of Registrable Securities requested to be included in such
offering, then such holder shall have the right, by written notice
to the Corporation given prior to the effectiveness of such
registration statement, to withdraw its request to have its
Registrable Securities included in such registration statement.
4.5 Conditions to Registration. Each holder's right to have its
Registrable Securities included in any registration statement filed by the
Corporation in accordance with the provisions of this Agreement shall be subject
to the following conditions:
(a) The holders of Registrable Securities to be included in such
registration statement shall furnish the Corporation in a timely
manner with all information requested by the Corporation in
writing and required by the applicable rules and regulations of
the SEC or otherwise reasonably required by the Corporation or its
counsel in order to enable them properly to prepare and file such
registration statement in accordance with applicable provisions of
the Securities Act and if the offering is underwritten such holder
shall (i) agree to sell its Registrable Securities on any
reasonable and customary basis provided in any underwriting
arrangements approved by (A) the holders of not less than a
majority of the Registrable Securities included therein in the
case of a Demand Registration, or (B) the Corporation or such
other holders of securities on whose account the registration is
initially being made in the case of a Piggyback Registration and
(ii) complete and execute all questionnaires, powers of attorney,
indemnities, underwriting agreements and other documents
reasonably required under the terms of such underwriting
arrangements on a timely basis; provided that in no case shall a
holder of Registrable Securities included in any
- 55 -
registration be required to make any representations or warranties
to the Corporation or the underwriters other than representations
and warranties regarding such holder, the Registrable Securities
held by such holder and such holder's intended method of
distribution;
(b) If any such holder desires to sell and distribute Registrable
Securities over a period of time, or from time to time, at then
prevailing market prices, then any such holder shall execute and
deliver to the Corporation such written undertakings as the
Corporation and its counsel may reasonably request in order to
assure full compliance with applicable provisions of the
Securities Act and the Exchange Act;
(c) Such holder shall agree that as of the date that a final
prospectus is made available to it for distribution to prospective
purchasers of Registrable Securities it shall cease to distribute
copies of any preliminary prospectus prepared in connection with
the offer and sale of such Registrable Securities and will deliver
or cause to be delivered a copy of such final prospectus to each
Person who received a copy of any preliminary prospectus prior to
sale of any of the Registrable Securities to such Persons; and
(d) Upon receipt of any notice from the Corporation of the existence
of any event of the nature described in Section 4.4(g), such
holder will forthwith discontinue disposition of Registrable
Securities until such holder receives copies of the supplemented
or amended prospectus contemplated by Section 4.4(g) or until it
is advised in writing by the Corporation that the use of the
prospectus may be resumed, and has received copies of any
additional or supplemental filings which are incorporated by
reference in the prospectus, and, if so directed by the
Corporation, such holder will deliver to the Corporation (at the
Corporation's expense) all copies, other than permanent file
copies then in such holder's possession, of the prospectus
covering such Registrable Securities current at the time of
receipt of such notice.
4.6 Registration and Selling Expenses.
(a) All expenses incident to the Corporation's performance of or
compliance with this Agreement and the preparation, filing,
amendment or supplement of any registration statement in which
Registrable Securities are to be included, including without
limitation all registration and filing fees, fees and expenses
(including the Corporation's counsel fees) of compliance with
securities
- 56 -
or blue sky laws, printing and copying expenses, messenger and
delivery expenses, fees and disbursements of custodians, and fees
and disbursements of counsel for the Corporation and all
independent certified public accountants, underwriters (excluding
discounts and commissions and fees in lieu of discounts and
commissions) and other Persons retained by the Corporation, the
expenses and fees for listing the securities to be registered on
each securities exchange on which similar securities issued by the
Corporation are then listed or on the NASD automated quotation
system, transfer taxes, fees of transfer agents and registrars and
cost of insurance (all such expenses being called "Registration
Expenses") shall be borne by the Corporation, whether or not any
such registration statement becomes effective.
(b) In connection with each registration effected pursuant to Section
4.1 or 4.2, the Corporation shall reimburse the holders of
Registrable Securities included in such registration for the
reasonable fees and disbursements of one counsel chosen by the
holders of a majority of the Registrable Securities included in
such registration.
(c) All underwriting discounts and selling commissions applicable to
the sale of Registrable Securities and all fees and disbursements
of counsel for the holders of Registrable Securities, other than
fees and expenses referred to in Section 4.6(b), shall be paid by
the holders of Registrable Securities.
4.7 Indemnification.
(a) The Corporation agrees to indemnify, hold harmless and reimburse,
to the extent not prohibited by law, each holder of Registrable
Securities included in a registration statement, its directors,
officers, employees and each Person who controls such holder
(within the meaning of the Securities Act) against all losses,
claims, damages, liabilities and expenses, whether joint or
several (including legal expenses and any expenses incurred in
investigating any claims) caused by any untrue or alleged untrue
statement of material fact contained in such registration
statement, prospectus or preliminary prospectus or any amendment
thereof or supplement thereto or any omission or alleged omission
of a material fact required to be stated therein or necessary to
make the statements therein not misleading or any other violation
or breach of the Securities Act, the Exchange Act or any state
securities or blue sky law or any other law by the Corporation or
its officers or directors or any other Person acting or purporting
to act on the Corporation's
- 57 -
behalf, except insofar as the same are caused by or contained in
any information furnished in writing to the Corporation by such
holder specifically stating that it is to be used in the
preparation thereof or by such holder's failure to deliver a copy
of the registration statement or prospectus or any amendments or
supplements thereto after the Corporation has furnished such
holder with a sufficient number of copies of the same. In
connection with an underwritten offering, the Corporation shall
indemnify such underwriters, their officers and directors and each
Person who controls such underwriters (within the meaning of the
Securities Act) to the same extent as provided above with respect
to the indemnification of the holders of Registrable Securities.
(b) In connection with any registration statement in which a holder of
Registrable Securities is participating, each such holder shall
indemnify the Corporation, its managers, officers and employees
and each Person who controls the Corporation (within the meaning
of the Securities Act) against any losses, claims, damages,
liabilities and expenses (including legal expenses and any
expenses incurred in investigating any claims) resulting from any
untrue or alleged untrue statement of material fact contained in
the registration statement, prospectus or preliminary prospectus
or any amendment thereof or supplement thereto or any omission or
alleged omission of a material fact required to be stated therein
or necessary to make the statements therein not misleading, but
only to the extent that such untrue statement or omission is
contained in any information or affidavit so furnished in writing
by such holder specifically stating that it is to be used in the
preparation thereof; provided that the obligation to indemnify
shall be individual to each holder and in no event shall the
aggregate liability of a holder for indemnities pursuant to this
Section 4.7 exceed the net amount of proceeds received by such
holder from the sale of its Registrable Securities pursuant to
such registration statement.
(c) Any Person entitled to indemnification hereunder (an "indemnified
party") shall (i) give prompt written notice to any Person
obligated to make such indemnification (an "indemnifying party")
of any claim with respect to which it seeks indemnification
(provided that the failure to give prompt notice shall not impair
any Person's right to indemnification hereunder to the extent such
failure has not prejudiced the indemnifying party) and (ii) unless
in such indemnified party's reasonable judgment a conflict of
interest between such indemnified and indemnifying parties may
exist with respect to such claim, permit such indemnifying party
to assume the defense of such claim
- 58 -
with counsel reasonably satisfactory to the indemnified party. If
such defense is assumed, the indemnifying party shall not be
subject to any liability for any settlement made by the
indemnified party without its consent (but such consent shall not
be unreasonably withheld). An indemnifying party who is not
entitled to, or elects not to, assume the defense of a claim shall
not be obligated to pay the fees and expenses of more than one
counsel for all parties indemnified by such indemnifying party
with respect to such claim, unless in the reasonable judgment of
any indemnified party a conflict of interest may exist between
such indemnified party and any other of such indemnified parties
with respect to such claim or 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.
(d) In order to provide for just and equitable contribution to joint
liability in any case in which either (i) the indemnity provided
for in this Section 4.7 is unavailable to a party that would
otherwise have been an indemnified party, or (ii) contribution
under the Securities Act or any other applicable law may be
required on the part of any such holder of Registrable Securities
or any controlling Person of such a holder in circumstances for
which indemnification is provided under this Section 4.7; then,
and in each such case, the indemnifying and indemnified party will
contribute to the aggregate losses, claims, damages or liabilities
to which they may be subject (after contribution from others) in
such proportion as is appropriate to reflect the relative fault of
the indemnifying party on the one hand and such indemnified party
on the other in connection with the statement or omission or
circumstance which resulted in such loss, claims, damages,
liabilities or expenses, as well as any other relevant equitable
considerations. The relative fault shall be determined by
reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied
by the indemnifying party or such indemnified party and the
parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such
- 59 -
statement or omission; provided, however, that, in any such case,
(A) no such holder will be required to contribute any amount in
excess of the amounts received by it from the sale of its
Registrable Securities pursuant to such registration statement;
and (B) no Person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Securities Act) will be
entitled to contribution from any Person who was not guilty of
such fraudulent misrepresentation.
(e) The indemnification provided for under this Agreement shall remain
in full force and effect regardless of any investigation made by
or on behalf of the indemnified party or any officer, director or
controlling Person of such indemnified party and shall survive the
transfer of any Registrable Securities and any termination of this
Agreement.
ARTICLE 5. MISCELLANEOUS.
5.1 Successors and Assigns. This Agreement shall be binding upon the
parties hereto and their Transferees; provided:
(a) in no event shall Executive Management be permitted to sell, gift,
pledge, assign or otherwise transfer any of their Shares except to
an Affiliate Transferee;
(b) no Transferee shall be entitled to any benefits under this
Agreement unless such Transferee shall have executed and delivered
to the Corporation its written agreement to be bound by the terms
of this Agreement to the same extent as its transferor in form and
substance satisfactory to the Requisite Former Senior Noteholders;
and
(c) no Transferee shall be entitled to any benefits under Article 4
unless (x) such Transferee is already a Stockholder, DVI or an
Affiliate Transferee or (y) the transfer to such Transferee is of
Registrable Securities constituting at least 5% of the then issued
and outstanding Common Stock or (z) the transfer to such
Transferee is of the original number of shares of Common Stock
issued to such Transferee's transferor under the Plan (as such
number may be adjusted to reflect any subsequent stock split,
combination or reclassification of Common Stock).
5.2 Term and Termination. The rights and obligations of the parties:
- 60 -
(a) under Articles 2 and 3 hereunder shall terminate upon the earlier
of (i) the mutual written agreement of all of the Stockholders,
(ii) 18 months following the effective date of the Plan, (iii) the
effective date of the Corporation's Initial Post-Effective Public
Offering or (iv) such time as the number of Shares owned by the
Former Senior Noteholders is less than forty percent (40%) of the
then issued and outstanding shares of Common Stock;
(b) under Article 4 shall terminate upon the earlier of (i) the time
there are no more Registrable Securities or (ii) the consummation
of any merger, consolidation, sale of stock or other transaction
in which the holders of Common Stock of the Corporation, in the
aggregate, immediately prior to such transaction will hold,
immediately after such transaction, less than fifty percent (50%)
of the aggregate voting power of outstanding stock of the
surviving Corporation provided such transaction has been consented
to by Former Senior Noteholders owning at least two-thirds of
Shares then owned by Former Senior Noteholders or (iii) upon
mutual written agreement of all parties hereto.
5.3 Amendments. This Agreement may be amended or modified in whole or
in part only by an instrument in writing signed by all Stockholders and the
Corporation; provided, no amendment which amends any provision of Article 4,
this Article 5 or the defined terms as used herein or therein shall be effective
without the consent of DVI or any Transferee thereof entitled to the benefits of
Article 4 for so long as DVI or such Transferee owns any Registrable Securities.
5.4 Entire Agreement. This Agreement constitutes the entire agreement
between the parties, and all premises, representations, understandings,
warranties and agreements with reference to the subject matter hereof have been
expressed herein or in the documents incorporated herein by reference.
5.5 Applicable Law. This Agreement shall be governed by and construed
and enforced in accordance with the laws of the State of Delaware.
5.6 Counterparts. This Agreement may be executed in multiple
counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument.
5.7 Effect of Headings. Any title of an article or section heading
herein contained is for convenience or reference only and shall not affect the
meaning or construction of any of the provisions hereof.
- 61 -
5.8 Injunctive Relief. It is acknowledged that it will be impossible to
measure the damages that would be suffered by a party if any other party fails
to comply with the provisions of this Agreement and that in the event of any
such failure, the non-defaulting parties will not have an adequate remedy at
law. The non-defaulting parties shall, therefore, be entitled to obtain specific
performance of the defaulting party's obligations hereunder and to obtain
immediate injunctive relief. The defaulting party shall not argue, as a defense
to any proceeding for such specific performance or injunctive relief, that the
non-defaulting parties have an adequate remedy at law.
5.9 Severability. In case any provision of the Agreement shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
5.10 Delays or Omissions. It is agreed that no delay or omission to
exercise any right, power or remedy accruing to any party, upon any breach,
default or noncompliance of any other party under this Agreement shall impair
any such right, power or remedy, nor shall it be construed to be a waiver of or
in any such breach, default or noncompliance, or any acquiescence therein, or of
or in any similar breach, default or noncompliance thereafter occurring. It is
further agreed that any waiver, permit, consent or approval of any kind or
character on the part of any party of any breach, default or noncompliance under
the Agreement or any waiver on the part of any party of any provisions or
conditions of this Agreement must be in writing and shall be effective only to
the extent specifically set forth in such writing.
5.11 Notices and Consents; Notices. All notices and other written
communications provided for hereunder shall be given in writing and sent by
overnight delivery service (with charges prepaid) or by facsimile transmission
with the original of such transmission being sent by overnight delivery service
(with charges prepaid) by the next succeeding Business Day and (i) if to a
Stockholder or DVI addressed to such Stockholder or DVI at such address or fax
number as is specified for such Stockholder or DVI after its signature to this
Agreement; and (ii) if to the Corporation, addressed to it at 155 State Street,
Hackensack, New Jersey 07602, Attention: General Counsel, Fax No. (201) 488-8230
or at such other address or fax number as such Stockholder, DVI or the
Corporation shall have specified to other party hereto in writing given in
accordance with this Section 5.11. Notice given in accordance with this Section
5.11 shall be effective upon the earlier of the date of delivery or the second
Business Day at the place of delivery after dispatch.
5.12 Pronouns. All pronouns contained herein, and any variations
thereof, shall be deemed to refer to the masculine, feminine or neutral,
singular or plural, as to the identity of the parties hereto may require.
5.13 Legend. Each certificate evidencing any of the Shares shall bear a
legend substantially as follows:
- 62 -
"The shares represented by this certificate are subject to
certain restrictions on transfer and voting agreements and may
be entitled to certain benefits in accordance with and subject
to all the terms and conditions of a certain Stockholders
Agreement dated as of February 26, 2001, a copy of which the
Corporation will furnish to the holder of this certificate
upon request and without charge."
- 63 -
IN WITNESS WHEREOF, this Agreement has been executed under seal as of
the date and year first written above.
COMPANY: MEDICAL RESOURCES, INC.
By: /s/ Christopher Joyce
-------------------------------------
Name: Christopher Joyce
Title: Co-Chief Executive Officer
EXECUTIVE MANAGEMENT: /s/ Christopher Joyce
-------------------------------------
Christopher Joyce
Address for Notices:
c/o Medical Resources, Inc.
155 State Street
Hackensack, NJ 07601
/s/ Geoffrey Whynot
-------------------------------------
Geoffrey Whynot
Address for Notices:
c/o Medical Resources, Inc.
155 State Street
Hackensack, NJ 07601
- 64 -
FORMER SENIOR
NOTEHOLDERS: JOHN HANCOCK LIFE INSURANCE COMPANY
By: /s/ Stephen J. Blewitt
-----------------------------------------
Name: Stephen J. Blewitt
Title: Managing Director
Address for Notices:
200 Clarendon Street
Boston, MA 02117
Attention: Bond & Corporate Finance
Group, T-57
- 65 -
JOHN HANCOCK VARIABLE LIFE INSURANCE
COMPANY
By: /s/ Stephen J. Blewitt
----------------------------------------
Name: Stephen J. Blewitt
Title: Authorized Signatory
Address for Notices:
200 Clarendon Street
Boston, MA 02117
Attention: Bond & Corporate Finance
Group, T-57
- 66 -
INVESTORS PARTNER LIFE INSURANCE
COMPANY
By: /s/ Stephen J. Blewitt
----------------------------------------
Name: Stephen J. Blewitt
Title: Authorized Signatory
Address for Notices:
200 Clarendon Street
Boston, MA 02117
Attention: Bond & Corporate Finance
Group, T-57
- 67 -
MELLON BANK, N.A., solely in its capacity
as Trustee for The Long Term Investment
Trust, (as directed by John Hancock Financial
Services, Inc.), and not in its individual
capacity
By: /s/ Carole Bruno
-----------------------------------------
Name: Carole Bruno
Title: Authorized Signatory
Address for Notices:
200 Clarendon Street
Boston, MA 02117
Attention: Bond & Corporate Finance
Group, T-57
The decision to participate in the investment, any representations made
herein by the participant, and any actions taken hereunder by the
participant has/have been made solely at the direction of the
investment fiduciary who has sole investment discretion with respect to
this investment.
- 68 -
THE NORTHERN TRUST COMPANY, AS TRUSTEE
OF THE LUCENT TECHNOLOGIES INC. MASTER
PENSION TRUST
By: JOHN HANCOCK LIFE INSURANCE
COMPANY, as Investment Manager
By: /s/ Stephen J. Blewitt
------------------------------------------
Name: Stephen J. Blewitt
Title: Managing Director
Address for Notices:
200 Clarendon Street
Boston, MA 02117
Attention: Bond & Corporate Finance
Group, T-57
- 69 -
AUSA LIFE INSURANCE COMPANY, INC.
By: /s/ Mark E. Dunn
----------------------------------
Name: Mark E. Dunn
Title: Vice President
Address for Notices:
AEGON USA Investment Management
4333 Edgewood Road, N.E.
Cedar Rapids, IA 52499
Attention: Mark Dunn
- 70 -
LIFE INVESTORS INSURANCE COMPANY OF
AMERICA
By: /s/ Mark E. Dunn
-------------------------------------
Name: Mark E. Dunn
Title: Vice President
Address for Notices:
AEGON USA Investment Management
4333 Edgewood Road, N.E.
Cedar Rapids, IA 52499
Attention: Mark Dunn
- 71 -
GREAT AMERICAN LIFE INSURANCE
COMPANY
By: /s/ Mark F. Muething
-----------------------------------------
Name: Mark F. Muething
Title: Executive Vice President
Address for Notices:
American Financial Group
1 East 4th Street, 3rd Floor
Cincinnati, OH 45202
Attention: Joanne Schubert
- 72 -
SALKELD & CO., (as nominee of General Electric
Capital Assurance Company (f/k/a Great Northern
Insured Annuity Corporation)
By: /s/ Kristina Clohesy
-----------------------------------------
Name: Kristina Clohesy
Title: Reorganization Administrator
Address for Notices:
GE Capital Assurance Co.
601 Union Street, Suite 1300
Seattle, WA 98101
Attention: Morian Mooers
- 73 -
COVA FINANCIAL SERVICES LIFE
INSURANCE COMPANY
By: /s/ Jacqueline D. Jenkins
-----------------------------------------
Name: Jacqueline D. Jenkins
Title: Authorized Signatory
Address for Notices:
MetLife
334 Madison Avenue
Convent Station, NJ 07961
Attention: Mike Cazayoux
- 74 -
HARE & CO (as nominee of Lincoln National Life
Insurance Company)
By: /s/ Patrick M. Dodd
-----------------------------------------
Name: Patrick M. Dodd
Title: Authorized Officer
Address for Notices:
Liberty Capital
2000 Wade Hampton Boulevard
Greenville, SC 29615
Attention: Pete Dodd
- 75 -
AMERICAN BANKERS INSURANCE
COMPANY OF FLORIDA
By: /s/ Robert C. Lindberg
----------------------------------------
Name: Robert C. Lindberg
Title: Vice President
Address for Notices:
Fortis Corporation
1 Chase Manhattan Plaza, 41st Floor
New York, NY 10005
Attention: Robert Lindberg
- 76 -
OCCIDENTAL LIFE INSURANCE COMPANY
OF NORTH CAROLINA
By: /s/ J. Joseph Veranth
-----------------------------------------
Name: J. Joseph Veranth
Title: Executive Vice President
Address for Notices:
Dana Investment Advisors, Inc.
P.O. Box 1067
Brookfield, WI 53008-1067
Attn: J. Joseph Veranth
- 77 -
PENINSULAR LIFE INSURANCE COMPANY CO.
By: /s/ Susan D. Royles
-----------------------------------------
Name: Susan D. Royles
Title: Vice President
Address for Notices:
Conning Asset Management
185 Asylum Street
City Place II
Hartford, CT 06103
Attention: Susan Royles
- 78 -
EXECUTIVE RISK INDEMNITY INC.
By: /s/ Marjorie D. Raines
-----------------------------------
Name: Marjorie D. Raines
Title: Vice President
Address for Notices:
Chubb Financial Group
15 Mountain View Road
Warren, NJ 07060
Attention: Bill Clarkson
- 79 -
DVI: DVI FINANCIAL SERVICES, INC.
By: /s/ Sara Lee Keller
-----------------------------------------
Name: Sara Lee Keller
Title: Deputy General Counsel
Address for Notices:
DVI Financial Services, Inc.
2500 York Road
Jamison, PA 18929
Attn: Richard E. Miller, President
- 80 -
Exhibit 4
AGREEMENT
This Agreement executed this 7th day of April, 1995, is by and among
American Premier Group, Inc. ("American Premier") and American Financial
Corporation ("AFC"), both Ohio corporations, located at One East Fourth Street,
Cincinnati, Ohio 45202, and Carl H. Lindner ("CHL"), Carl H. Lindner III (CHL
III), S. Craig Lindner ("SCL") and Keith E. Lindner ("KEL"), each an individual,
the business address of each is One East Fourth Street, Cincinnati, Ohio 45202.
CHL, CHL III, SCL and KEL are referred to herein collectively as the Lindner
Family.
WHEREAS, as of the date of this Agreement, American Premier owns 100%
of the common stock of AFC and the Lindner Family beneficially owns
approximately 49.9% of American Premier's outstanding Common Stock and each
member of the Lindner Family is a director and executive officer of American
Premier and AFC;
WHEREAS, the Lindner Family may be deemed to be the beneficial owner of
securities held by American Premier, AFC and their subsidiaries pursuant to
Regulation Section 240.13d-3 promulgated under the Securities Exchange Act of
1934, as amended;
WHEREAS, American Premier and AFC and their subsidiaries from time to
time must file statements pursuant to certain sections of the Securities
Exchange Act of 1934, as amended, concerning the ownership of equity securities
of public companies;
NOW THEREFORE BE IT RESOLVED, that American Premier, AFC and the
Lindner Family, do hereby agree to file jointly with the Securities and Exchange
Commission any schedules or other filings or amendments thereto made by or on
behalf of American Premier, AFC or any of their subsidiaries pursuant to Section
13(d), 13(f), 13(g), and 14(d) of the Securities Exchange Act of 1934, as
amended.
AMERICAN PREMIER GROUP, INC.
AMERICAN FINANCIAL CORPORATION
By: /s/ James E. Evans
---------------------------------
James E. Evans
Vice President & General Counsel
/s/ Carl H. Lindner
---------------------------------
Carl H. Lindner
/s/ Carl H. Lindner III
---------------------------------
Carl H. Lindner III
/s/ S. Craig Lindner
---------------------------------
S. Craig Lindner
/s/ Keith E. Lindner
---------------------------------
Keith E. Lindner
- 81 -
Exhibit 5
POWER OF ATTORNEY
I, Carl H. Lindner, do hereby appoint James C. Kennedy and Karl J.
Grafe, or either of them, as my true and lawful attorneys-in-fact to sign on my
behalf individually and as Chairman of the Board of Directors and Chief
Executive Officer of American Financial Group, Inc. or as a director or
executive officer of any of its subsidiaries and to file with the Securities and
Exchange Commission any schedules or other filings or amendments thereto made by
me or on behalf of American Financial Group, Inc. or any of its subsidiaries
pursuant to Sections 13(d), 13(f), 13(g), 14(d) or 16(a) of the Securities and
Exchange Act of 1934, as amended.
IN WITNESS WHEREOF, I have hereunto set my hand at Cincinnati, Ohio as
of the 5th day of November, 1997.
/s/ Carl H. Lindner
-------------------
Carl H. Lindner
- 82 -
POWER OF ATTORNEY
I, Carl H. Lindner III, do hereby appoint James C. Kennedy and Karl J.
Grafe, or either of them, as my true and lawful attorneys-in-fact to sign on my
behalf individually and as Chairman of the Board of Directors and Chief
Executive Officer of American Financial Group, Inc. or as a director or
executive officer of any of its subsidiaries and to file with the Securities and
Exchange Commission any schedules or other filings or amendments thereto made by
me or on behalf of American Financial Group, Inc. or any of its subsidiaries
pursuant to Sections 13(d), 13(f), 13(g), 14(d) or 16(a) of the Securities and
Exchange Act of 1934, as amended.
IN WITNESS WHEREOF, I have hereunto set my hand at Cincinnati, Ohio as
of the 5th day of November, 1997.
/s/ Carl H. Lindner III
-----------------------
Carl H. Lindner III
- 83 -
POWER OF ATTORNEY
I, S. Craig Lindner, do hereby appoint James C. Kennedy and Karl J.
Grafe, or either of them, as my true and lawful attorneys-in-fact to sign on my
behalf individually and as Chairman of the Board of Directors and Chief
Executive Officer of American Financial Group, Inc. or as a director or
executive officer of any of its subsidiaries and to file with the Securities and
Exchange Commission any schedules or other filings or amendments thereto made by
me or on behalf of American Financial Group, Inc. or any of its subsidiaries
pursuant to Sections 13(d), 13(f), 13(g), 14(d) or 16(a) of the Securities and
Exchange Act of 1934, as amended.
IN WITNESS WHEREOF, I have hereunto set my hand at Cincinnati, Ohio as
of the 5th day of November, 1997.
/s/ S. Craig Lindner
--------------------
S. Craig Lindner
- 84 -
POWER OF ATTORNEY
I, Keith E. Lindner, do hereby appoint James C. Kennedy and Karl J.
Grafe, or either of them, as my true and lawful attorneys-in-fact to sign on my
behalf individually and as Chairman of the Board of Directors and Chief
Executive Officer of American Financial Group, Inc. or as a director or
executive officer of any of its subsidiaries and to file with the Securities and
Exchange Commission any schedules or other filings or amendments thereto made by
me or on behalf of American Financial Group, Inc. or any of its subsidiaries
pursuant to Sections 13(d), 13(f), 13(g), 14(d) or 16(a) of the Securities and
Exchange Act of 1934, as amended.
IN WITNESS WHEREOF, I have hereunto set my hand at Cincinnati, Ohio as
of the 5th day of November, 1997.
/s/ Keith E. Lindner
--------------------
Keith E. Lindner
- 85 -