SHARE EXCHANGE AGREEMENT
THIS SHARE EXCHANGE AGREEMENT (this "Agreement") is made and entered into as
of the 21st day of July, 1994, by and between MOMED HOLDING CO., a Missouri corporation
("MOMED"), and MISSOURI STATE MEDICAL ASSOCIATION, a Missouri not-for-profit
corporation ("MSMA").
In consideration of the premises and the mutual terms and provisions set forth in this
Agreement, the parties hereto agree as follows:
ARTICLE ONE
ACQUISITION AND EXCHANGE OF SHARES
Section 1.1. Acquisition of the MSMA Shares. Subject to the terms and conditions hereof,
on the Closing Dale (as hereinafter defined), MSMA agrees to assign, transfer, deliver and convey
unto MOMED, and MOMED agrees to acquire from MSMA for retirement, all of MSMA's right,
title and interest in and to the 24,185 shares of MOMED's authorized and
outstanding Class B Common Stock now owned by MSMA (the "MSMA Shares").
Section 1.2. Exchange of Shares: Nomination and Endorsement Agreement
(a) In exchange for the transfer of the MSMA Shares, on the Closing Dale, MOMED
agrees to issue to MSMA, subject to the terms and conditions hereof, 24,185 shares of MOMEDs
Class A Common Stock and 24,185 shares of its Class C Common Stock When exchanged, the
shares issued to MSMA hereunder shall be duly authorized and validly issued, filly paid and non-
assessable, and not issued in violation of any preemptive rights.
(b) The shares of MOMED's Class A Common Stock issued to MSMA in connection
herewith (the "Class A Shares") shall, once issued, have the same dividend rights, conversion
rights, voting powers, preferences, priorities and other special rights and powers as all other issued
and outstanding shares of MOMED's Class A Common Stock
(c) The shares of MOMED's Class C Common Stock issued to MSMA in connection
herewith (the "Class C Shares") shall be non-voting. MSMA shall have an option to sell (i.e. "put")
the Class C Shares to MOMED, and MOMED shall be required to purchase such shares, at any
time from and after the Closing Date, in the maximum quantities set forth on Schedule attached
hereto and incorporated herein by this reference and for the per share cash consideration hereinafter
described. On the second and third anniversaries of the Closing Date, MOMED shall have an
option to purchase (i.e. "call") those Class C Shares not yet put to MOMED in the maximum
quantities set forth on Schedule A and for the per share cash consideration hereinafter described.
The put or call cash consideration payable for the Class C Shares pursuant to this Section 1.2(c)
shall be $24.81 per share (for an aggregate cash consideration not to exceed $600,000) plus an
interest factor which shall accrue from the Closing Date through the date of sale or purchase
pursuant to a put or call provided for in this Section 1.2(c). The interest shall be a fixed annual rate
equal to the prime rate announced by The Boatmen's National Bank of St. Louis on the Closing
Date plus one percent (1%). Any party exercising its rights to a put or call hereunder shall give
written notice thereof to the other party in accordance with the provisions of Section 7.1 hereof.
The notice shall specify the number of shares covered, the purchase price of such shares (including
the interest factor to the date of payment and delivery) as well as the date of payment and delivery
which shall be a date not less than seven (7) nor more than thirty (30) days following the date such
notice shall be deemed to have been given or made as in Section 7.1 provided. On the delivery date,
MSMA shall surrender to MOMED, or its duly authorized designee, possession of all certificates
representing the Class C shares covered by the put or call notice, endorsed in blank or accompanied
by duly executed stock powers, and such Class C shares shall be free and clear of any claims, liens,
charges, encumbrances or other restrictions or commitments of any nature whatsoever(d) In the event of any voluntary or involuntary liquidation, dissolution or winding up of
MOMED, the holders of the Class C Shares shall be entitled to receive out of the assets of
MOMED available for distribution to the stockholders, before any distribution of assets shall be
made to the holders of other shares of MOMED capital stock, an amount equal to the value of any
unexercised put or call rights provided for in Section 1.2(c) above. Except for this preference
payment, the holders of the Class C Shares shall have no other rights to share in the assets of
MOMED upon the liquidation, dissolution or winding up of MOMED.
(e) Concurrently with the exchange of the MSMA Shares far the Class C Shares, (i)
MSMA and MOMED shall enter into a five (5) year nomination agreement substantially in the
form of Exhibit A attached hereto (the "Nomination Agreement"), and (ii) MOMED and the Select
Stockholders (as hereinafter defined) shall enter into a five (5) year voting agreement substantially
in the form of Exhibit B attached hereto (the "Voting Agreement").
Section 1.3. Exchange Procedures: Surrender of Certificates.
On the Closing Date, MSMA shall surrender to MOMED, or its duly authorized designee,
possession of all certificates representing the MSMA Shares, endorsed in blank or accompanied by
duly executed stock powers effectively transferring the MSMA Shares to MOMED, together with a
duly executed letter indicating MSMA's intent to have the surrendered shares canceled
(substantially in the form of Exhibit C attached hereto). Once the certificates representing the
MSMA Shares have been surrendered to MOMED, those certificates shall be marked "canceled"
and, together with all other authorized but unissued shares of MOMED Class B Common Stock,
shall be deemed retired. Thereupon. MOMED shall issue, in the name of MSMA, certificates
representing the Class A Shares and the Class C Shares.
Section 1.4. The Closing. The closing of the transactions contemplated hereunder (the
"Closing") shall take place at MOMEDs principal executive office, 8630 Delmar Blvd., Suite 100,
St. Louis, Missouri 63124, at 2:00 p.m. St. Louis time on Tuesday; August 16,1994, or at such
other date, time or place upon which the parties may mutually agree (the "Closing Date").
Section 1.5. Actions At Closing.
At the Closing, the following deliveries shall be made, each to be deemed concurrent with
all others:
(a) MOMED shall deliver the following documents to MSMA: (1) A certificate signed by an authorized officer of MOMED stating that
each of the representations and warranties contained in Article Two is true and
correct in all material respects at the time of Closing with the same force and effect
as if such representations and warranties had been made at Closing;
(2) A copy of the resolutions duly adopted by the Board of Directors and
stockholders of MOMED authorizing the execution and delivery of this Agreement
and the consummation of the transactions contemplated hereby, duly certified, as of
the Closing Date, by the secretary of MOMED;
(3) Certificates representing the Class A Shares and the Class C Shares
registered in the name of MSMA; and
(4) The Nomination Agreement duly executed by MOMED and the Voting
Agreement duly executed by MOMED and Richard V. Bradley M.D., Kriete H.
Hollrah and Leonard L. Davis, Jr., M.D. (collectively referred to as the "Select
Stockholders"); and
(5) The opinion of MOMED's counsel substantially in the form of Exhibit D
attached hereto.
(b) MSMA shall deliver the following documents to MOMED: (1) A certificate signed by an authorized officer of MSMA stating that each
of the representations and warranties contained in Article Three is true and correct in
all material respects at the time of Closing with the same force and effect as if such
representations and warranties had been made at Closing;
(2) A copy of the resolutions duly adopted by the Executive Committee of
MSMA authorizing the execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby, duly certified, as of the
Closing Date, by the secretary of MSMA;
(3) The certificates representing the MSMA Shares, endorsed in blank or
accompanied by duly executed stock powers effectively transferring the MSMA
Shares to MOMED for retirement, together with a duly executed letter indicating
MSMA's intent to have the surrendered shares canceled (substantially in the form of
Exhibit C attached hereto); and (4) The Nomination Agreement and the Voting Agreement, each duly
executed by MSMA.
ARTICLE TWO
REPRESENTATIONS AND WARRANTIES OF MOMED
Section 2.1. Corporate Organization and Capital Stock.
(a) MOMED is a corporation duly organized, validly existing and in good standing
under the law of the State Missouri with full power and authority to carry on its business as now
being conducted.
(b) The authorized capital stock of MOMED, consists of (i) 500,000 shares of Class A
Common Stock, of which, as of the date hereof, 219,881 shares are issued and outstanding, and (ii)
125,000 shares of Class B Common Stock, of which, as of the date hereof, 24,185 shares are issued
and outstanding. All of the issued and outstanding shares of MOMED's capital stock are duly and
validly issued and outstanding and are fully paid and non-assessable. None of the outstanding
shares of MOMED's capital stock has been issued in violation of any preemptive rights of the
current or past stockholders of MOMED.
(c) The Class A Shares and the Class C Shares that are to be issued to MSMA
hereunder, when so issued in accordance with the terms of this Agreement, will be validly issued
and outstanding, fully paid and non-assessable.
Section 2.2. Authorization. On the Closing Date, (i) there will be no provision in MOMED's
Restated Articles of incorporation or in its By-Laws, as amended, which prohibits or limits
MOMED's ability to consummate the transactions contemplated hereby, (ii) MOMED shall have
the right, power and authority to enter into this Agreement and to consummate all of the
transactions and fulfill all of the obligations contemplated hereby and (iii) the execution and
delivery of this Agreement and the due consummation by MOMED of the transactions
contemplated hereby will have been duly authorized by all necessary corporate action of the Board
of Directors and stockholders of MOMED. This Agreement constitutes a legal, valid and binding
agreement of MOMED enforceable against MOMED in accordance with its terms.
Section 2.3. No Conflict or Violation. Subject to the fulfillment of all of the conditions set
forth in Article Five hereof, neither the execution and delivery of this Agreement, nor the
consummation of the transactions contemplated hereby in accordance herewith, nor compliance by
MOMED with any of the provisions hereof will result in, as of the Closing Date: (i) a violation of
or a conflict with any provision of MOMED's Restated Articles of Incorporation or By-Laws, as
amended, (ii) a breach of or default under any term, condition or provision of any obligation,
agreement or undertaking, whether oral or written to which MOMED is a party, or an event which,
with the giving of notice, lapse of time, or both, would result in any such breach, (iii) a violation of
any applicable law, rule, regulation, order, decree or other requirement having the force of law, or
order, judgment, writ, injunction, decree or award, or an event which, with the giving of notice,
lapse of time, or both, would result in any such violation, or (iv) any person having the right to
enjoin, rescind or otherwise prevent or impede the transactions contemplated hereby or to obtain
damages from MSMA or to obtain any other judicial or administrative relief as a result of any
transaction carried out in accordance with the provisions of this Agreement.Section 2.4. Litigation and Proceedings. There is no action, suit, proceeding or investigation
pending or, to the knowledge of MOMED, threatened which challenges the validity of this
Agreement or the transactions contemplated hereby, or otherwise seeks to prevent, directly or
indirectly the consummation of such transactions.
ARTICLE THREE
REPRESENTATIONS AND WARRANTIES OF MSMA
Section 3.1. Corporate Organization. MSMA is a not-for-profit corporation duly organized,
validly existing and in good standing under the laws of the State Missouri with full power and
authority to carry on its business as it is now being conducted.
Section 3.2. Authorization. MSMA has full right, power and authority to enter into this
Agreement and to consummate or cause to be consummated all of the transactions and to fulfill all
of the obligations contemplated hereby The execution and delivery of this Agreement and the due
consummation by MSMA of the transactions contemplated hereby have been duly authorized by all
necessary corporate action of the Executive Committee of MSMA. This Agreement constitutes a
legal, valid and binding agreement of MSMA enforceable against MSMA in accordance with its
terms.
Section 3.3. No Conflict or Violation. Neither the execution and delivery of this Agreement,
nor the consummation of the transactions contemplated hereby nor compliance by MSMA with any
of the provisions hereof will result in: (i) a violation of or a conflict with any provision of the
Articles of Incorporation or By-Laws of MSMA, (ii) a breach of or default under any term,
condition or provision of any obligation, agreement or undertaking, whether oral or written to
which MSMA is a party, or an event which, with the giving of notice, lapse of time, or both, would
result in any such breach, (iii) a violation of any applicable law, rule, regulation, order, decree or
other requirement having the force of law, or order, judgment, writ, injunction, decree or award, or
an event which, with the giving of notice, lapse of time, or both, would result in any such violation,
or (iv) any person having the right to enjoin, rescind or otherwise prevent or impede the
transactions contemplated hereby or to obtain damages from MOMED or to obtain any other
judicial or administrative relief as a result of any transaction carried out in accordance with the
provisions of this Agreement.
Section 3.4. Litigation and Proceedings. There is no action, suit, proceeding or investigation
pending or, to the knowledge of MSMA, threatened which challenges the validity of this
Agreement or the transactions contemplated hereby, or otherwise seeks to prevent, directly or
indirectly, the consummation of such transactions.
Section 3.5. Title to MSMA Shares. MSMA possesses good and marketable title to the
MSMA Shares and has full right to transfer the same as contemplated herein. The MSMA Shares
are, and will be as of the Closing Date, free and clear of any claims, lien, charges, encumbrances or
other restrictions or commitments of any nature whatsoever.
Section 3.6 Sale of Substantially All Assets. The MSMA Shares do not constitute all or
substantially all of the assets of MSMA.
ARTICLE FOUR
AGREEMENTS OF PARTIES
Section 4.1. Agreements of MOMED.
(a) MOMED shall, in the event it has knowledge of the occurrence, or impending or
threatened occurrence, of any event or condition which would cause or constitute a breach (or
would have caused or constituted a breach had such event occurred or been known prior to the date
hereof) of any of its representations, warranties or agreements contained or referred to herein, give
prompt written notice thereof to MSMA and use reasonable efforts to prevent or promptly remedy
the same.
(b) MOMED shall submit the following matters for the approval of the MOMED
stockholders at the next annual meeting of such stockholders, or at any adjournment or
adjournments thereof: (I) This Agreement, (ii) The Nomination Agreement; (iii) An amendment to
MOMED's Restated Articles of incorporation authorizing the issuance of a new class of non-voting
common stock to be designated "Class C Common Stock" with the rights and preferences set forth
in Section 1.2 above, and (r,) Such other amendments to MOMED's Restated Articles of
Incorporation and By-Laws, as amended, as may be required to effect this Agreement and the
transactions contemplated hereby The Board of Directors of MOMED shall (subject to compliance
with its fiduciary duties as advised by counsel) recommend to its stockholders the approval of such
matters and shall use reasonable efforts to obtain such stockholder approval
(c) MOMED shall use reasonable efforts to perform and fulfill all conditions and
obligations on its part to be performed or fulfilled under this Agreement and to effect the exchange
contemplated hereby in accordance with the terms and conditions hereof. Section 4.2. Agreements of MSMA.
(a) MSMA shall, in the event it has knowledge of the occurrence, or impending or
threatened occurrence, of any event or condition which would cause or constitute a breach (or
would have caused or constituted a breach had such event occurred or been known prior to the date
hereof) of any of its representations, warranties or agreements contained or referred to herein, give
prompt written notice thereof to MOMED and use reasonable efforts to prevent or promptly
remedy the same.
(b) At the next annual meeting of MOMED stockholders, or at any adjournment or
adjournments thereof, MSMA shall, as record holder of all 24,185 shares of the issued and
outstanding MOMED Class B Common Stock, vote all such shares of MOMED Class B Common
Stock in favor of this Agreement, the Nomination Agreement, an amendment to MOMED's
Restated Articles of Incorporation authorizing the issuance of a new class of non-voting common
stock to be designated `Class C Common Stock" with the rights and preferences set forth in Section
1.2 above, and such other amendments to MOMED's Restated Articles of Incorporation and By-
laws, as amended, as may be required to effect this Agreement and the transactions contemplated
hereby
(c) MSMA shall use reasonable efforts to perform and fulfill all conditions and obligations
on its part to be performed or fulfilled under this Agreement and to effect the exchange
contemplated hereby in accordance with the terms and conditions hereof.
ARTICLE FIVE
CONDITIONS PRECEDENT TO THE EXCHANGE
Section 5.1. Conditions to the Obligations of MOMED. MOMED's obligations to effect the
exchange shall be subject to the satisfaction (or waiver by MOMED) of the following conditions
prior to or on the Closing Date:
(a) The representations and warranties made by MSMA in this Agreement shall be true in
all material respects on and as of the Closing Date with the same effect as though such
representations and warranties had been made or given on and as of the Closing Date;
(b) MSMA shall have performed and complied in all material respects with all of its
obligations and agreements required to be performed prior to the Closing Date under this
Agreement;
(c) No temporary restraining order, preliminary or permanent injunction or other order
issued by any court of competent jurisdiction or other legal restraint or prohibition preventing the
consummation of the exchange contemplated herein shall be in effect, nor shall any proceeding by
any authority or other person seeking any of the foregoing be pending. There shall not be any
action taken, or any statute, rule, regulation or order enacted, entered, enforced or deemed
applicable to the exchange which makes the consummation of the exchange illegal; and
(d) All necessary approvals, consents and authorizations required by law for consummation
of the exchange including, without limitation, (i) approval by the MOMED stockholders of this
Agreement, all other agreements required to be submitted to such stockholders in connection
herewith, and those amendments to MOMED's Restated Articles of Incorporation as are required to
effect the transactions herein contemplated, and (II) approval by the MSMA Executive Committee
of this Agreement on or before August 1,1994, shall have been obtained.
(e) MOMED shall have received all executed documents required to be received from
MSMA on or prior to the Closing Date; all in form and substance reasonably satisfactory to
MOMED, including, without limitation, the Nomination Agreement duly executed by MSMA and
the Voting Agreement duly executed by MSMA and the Select Stockholders.
Section 5.2. Conditions to the Obligations of MSMA. MSMA's obligations to effect the
exchange shall be subject to the satisfaction (or waiver by MSMA) of the following conditions
prior to or on August 1, 1994:
(a) The representatives and warranties made by MOMED in this Agreement shall be true in
all material respects on and as of the Closing Date with the same effect as though such
representations and warranties had been made or given on and as of the Closing Date;
(b) MOMED shall have performed and complied in all material respects with all of its
obligations and agreements required to be performed prior to the Closing Date under this
Agreement;
(c) No temporary restraining order, preliminary or permanent injunction or other order
issued by any court of competent jurisdiction or other legal restraint or prohibition preventing the
consummation of the exchange contemplated herein shall be in effect, nor shall any proceeding by
any authority or other person seeking any of the foregoing be pending. There shall not be any
action taken, or any statute, rule, regulation or order enacted, entered, enforced or deemed
applicable to the exchange which makes the consummation of the exchange illegal; and
(d) All necessary approvals, consents and authorizations required by law for consummation
of the exchange including, without limitation, approval by the MSMA Executive Committee of this
Agreement on or before August 1, 1994, shall have been obtained.
(e) MSMA shall have received the opinion of MOMED's counsel substantially in the form
of Exhibit D attached hereto.
(f) MSMA shall have received all executed documents required to be received from
MOMED on or prior to the Closing Date; all in form and substance reasonably satisfactory to MSMA.
ARTICLE SIX
TERMINATION OR ABANDONMENT
Section 6.1. Mutual Agreement. This Agreement may be terminated by the mutual written
consent of the parties at any time prior to the Closing Date, regardless of whether stockholder
approval of this Agreement and the transactions contemplated hereby shall have been previously
obtained.
Section 6.2. Breach of Agreements. In the event there is a material breach in any of the
representations and warranties or agreements of MSMA or MOMED, which breach is not cured
within thirty (30) days after notice to cure such breach is given by the non-breaching party, then the
non-breaching party, regardless of whether stockholder approval of this Agreement and the
transactions contemplated hereby shall have been previous obtained, may terminate and cancel this
Agreement by providing written notice of such action to the other party hereto.
Section 6.3. Failure of Conditions. In the event any of the conditions to the obligations of
either party are not satisfied or waived as specified in Article Five hereof, and if any applicable
cure period provided in Section 6.2 hereof has lapsed, then the party for whose benefit such
conditions were imposed may, regardless of whether stockholder approval of this Agreement and
the transactions contemplated hereby shall have been previously obtained, terminate and cancel this
Agreement by delivery of written notice of such action to the other party on such date.
Section 6.4. Authorization of MOMED Class C Common Stock. In the event that the
MOMED stockholders are unable or fail to take such action as may be required to authorize the
transactions herein provided, then MSMA may terminate this Agreement by giving written notice
to MOMED. The Board of Directors of MOMED, by its approval of the execution and delivery
hereof, agrees to use all reasonable efforts to cause the stockholders of MOMED to vote in favor of
the transactions herein contemplated.
ARTICLE SEVEN
MISCELLANEOUS PROVISIONS
Section 7.1. Notices. Any notice or other communication shall be in writing and shall be
deemed to have been given or made on the date of delivery in the case of hand delivery, or three (3)
business days after deposit in the United States Registered Mail, postage prepaid, or upon receipt if
transmitted by facsimile telecopy or any other means, addressed (in any case) as follows:
(a) if to MOMED:
MOMED Holding Co.
8630 Delmar Boulevard
Suite 100
St Louis, Missouri 63124
Attention: President and Chief Executive Officer
with a copy to:
Lewis, Rice & Fingersh
500 N. Broadway, Suite 2000
St Louis, Missouri 63102
Attention: Mr. John K Pruellage, Esq.
and
(b) if to MSMA:
Missouri State Medical Association
113 Madison Street
P.O. Box 1028
Jefferson City, Missouri 65102
Attention: President
with copies to:
Bryan Cave
One Metropolitan Square, Suite 3600
St. Louis, Missouri 63102
Attention: ME Mark H. Goran, Esq.
or to such other address as any party may from time to time designate by notice to the others.Section 7.2. Liabilities. In the event that this Agreement is terminated pursuant to the
provisions of Section 6.2 or Section 6.3 hereof on account of a breach of any of the representations
and warranties set forth herein or any breach of any of the agreements set forth herein or any failure
of conditions precedent to the exchange herein contained, then the non-breaching party or the party
for whose benefit such conditions were imposed shall be entitled to recover appropriate damages
from the breaching party; provided, however, that notwithstanding the foregoing. in the event this
Agreement is terminated by reason of a failure of a condition precedent set forth in Sections 5.1(c)
or (d), or Sections 5.2(c) or Cd), no party hereto shall have any liability to any other party for costs,
expenses, damages or otherwise.
Section 7.3. Entire Agreement. This Agreement constitutes the entire agreement between
the parties and supersedes and cancels any and all prior discussions, negotiations, undertakings and
agreements between the parties relating to the subject matter hereof.
Section 7.5. Headings and Captions. The captions of Articles and Sections hereof are for
convenience only and shall not control or affect the meaning or construction of any of the
provisions of this Agreement.
Section 7.6. Waiver. Amendment or Modification. The conditions of this Agreement which
may be waived may only be waived by notice to the other party waiving such condition. The
failure of any party at any time or times to require performance of any provision hereof shall in no
manner affect the right at a later time to enforce the same. This Agreement may not be amended or
modified except by a written document duly executed by the parties hereto.
Section 7.7. Rules of Construction. Unless the context otherwise requires: (a) a term has the
meaning assigned to it; (b) an accounting term not otherwise defined has the meaning assigned to it
in accordance with generally accepted accounting principles; Cc) "or" is not exclusive; and (d)
words in the singular may include the plural and in the plural include the singular
Section 7.8. Counterparts. This Agreement may be executed in two or more counterparts,
each of which shall be deemed an original and all of which shall be deemed one and the same
instrument.
Section 7.9. Successors and Assigns. This Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective heirs, administrators, successors and assigns,
including any successor by merger, reorganization or acquisition of substantially all the assets of a
party hereto. There shall be no third part'. beneficiaries hereof.
Section 7.10. Governing Law; Assignment. This Agreement shall be governed by the law of
the State of Missouri. This Agreement may not be assigned by either of the parties hereto.
Section 7.11. Severability. Ant' provision of this Agreement which is prohibited,
unenforceable or not authorized in any jurisdiction is, as to such jurisdiction, ineffective to the
extent of any such prohibition, unenforceability or nonauthorization without invalidating the
remaining provisions hereof, or affecting the validity enforceability or legality of such provision in
any other jurisdiction, unless the ineffectiveness of such provision would result in such a material
change as to cause completion of the transactions contemplated hereby to be unreasonable.
IN WITNESS WHEREOF, the undersigned have set their hand on the date first above
written.
MOMED HOLDING CO.
By: _____________________________
Richard V. Bradley, M.D., President and
Chief Executive Officer
MISSOURI STATE MEDICAL ASSOCIATION
By:______________________________
H. Jerry Murrell, M.D., President
Schedule A
Maximum Maximum
Shares that
Time of Shares that
May be
Exercise May be put
Called
Closing through day prior to 1st 4,031 0
anniversary of closing
1st anniversary of Closing through 4,031 (up to 8,062 if no prior 0
day prior to 2nd anniversary of puts)
Closing
2nd anniversary of Closing through 8,062 (up to 16,124 if no prior 24,185 (if no prior
day prior to 3rd anniversary of puts) puts)
Closing
3rd anniversary of Closing and 8,061 (up to 24,185 if no prior 24,185 (if no prior
thereafter puts or call) Call or puts)
Exhibit ANOMINATION AGREEMENT
THIS NOMINATION AGREEMENT (this "Agreement") is made and entered into as of the
____ day of _______, 1994, by and between MOMED HOLDING CO, a Missouri corporation
("MOMED"), and MISSOURI STATE MEDICAL ASSOCIATION, a Missouri not-for-profit
corporation ("MSMA").
RECITALS
A. MOMED and MSMA entered into that certain Share Exchange Agreement dated July
21, 1994 (the "Share Exchange Agreement"), wherein MSMA has agreed to transfer to MOMED
the 24,185 shares of MOMED's Class B Common Stock owned by MSMA and MOMED has
agreed to issue to MSMA 24,185 shares of MOMED's Class A Common Stock and 24,185 shares
of its Class C Common Stock
B. In connection with the Share Exchange Agreement, MOMED desires to assist MSMA in
directly participating in the management of MOMED through the nomination of at least one (1)
MSMA representative at each annual election of Directors of MOMED.
C. The Board of Directors of MOMED has determined that it is in the best interests of
MOMED to include on the Board an otherwise qualified representative of MSMA, all on the terms
and conditions set forth in this Agreement.
In consideration of the prentises and the mutual terms and provisions set forth in this
Agreement, the parties hereto agree as follows:
1. Nomination Covenants. During the term of this Agreement, the MSMA Council shall
submit annually in writing, on or before December 1 of each year, the name of a candidate (the
"MSMA Candidate") to the MOMED Nominating Committee for election to the MOMED Board of
Directors. The MSMA Candidate must be, or must have been, an active officer or member of the
MSMA Council or other person reasonably acceptable to MOMED. Subject to the exercise in good
faith of its responsibilities to MOMED and its shareholders, giving due consideration to MOMED's
relationship with MSMA and the intent of this Agreement, the MOMED Nominating Committee
shall include the name of the MSMA Candidate so submitted as one of its nominees for election to
the MOMED Board of Directors that year, and shall, in each war, nominate only that number of
candidates for election to the MOMED Board of Directors as shall equal the total number of
Directors to be elected for such year. The MOMED Nominating Committee shall place no name in
opposition to the MSMA Candidate.
2. Proxy Materials. The name of the MSMA Candidate shall be included as a management
nominee in the Proxy Statement circulated in advance of the annual meeting of the MOMED
shareholders (the "Annual Meeting"). During the Term of this Agreement, all proxies relating to the
election of MOMED Directors that are distributed to MOMED shareholders in connection with
each Annual Meeting shall contain a statement notifying the MOMED shareholders that if a proxy
is returned without express directions from the shareholder to the contrary MOMED management
will vote the proxy cumulatively "For" all named nominees in such manner as MOMED
management shall determine. MOMED management shall vote such proxies cumulatively in such
manner as in the opinion of MOMED management will assure the election of the MSMA
Candidate.3. Composition of the MOMED Board. During the term of this Agreement, each member
of the MOMED Board of Directors shall serve a term of three (3) years. At least five (5) but no
more than six (6). Directors shall be elected to the MOMED Board of Directors at each Annual
Meeting, and the size of the MOMED Board of Directors shall not be permitted to exceed eighteen
(18) Directors.
4. Issuance of Additional Shares. MOMED may issue additional shares, warrants, rights or
options during the term of this Agreement, provided that the effect of such issuance, taking into
account the Voting Agreement of even date herewith (the "Voting Agreement") among MOMED,
MSMA and certain shareholders of MOMED, does not dilute MSMA's right to elect one (1)
Director to the MOMED Board of Directors each term. MOMED shall not issue additional shares,
warrants, rights or options which dilute the right of MSMA (taking into account the Voting
Agreement) to elect one (1) Director to the MOMED Board of Directors each term without the
prior written consent of the MSMA Executive Committee, which consent shall be timely and shall
not be unreasonably withheld, it being the intent and agreement of the parties that MSMAs right to
elect one (1) Director for each term, as provided herein, shall not be diluted.
5. Limitation of MSMA Ownership. During the term of this Agreement, including any
extensions or renewals hereof, MSMA shall not, without the consent of a majority of the MOMED
Board of Directors, directly or indirectly, acquire additional shares of the Class A Common Stock
of MOMED so as to increase its percentage ownership of the outstanding Class A Common Stock
of MOMED to more than fifteen percent (15%). In the event that MSMA's percentage ownership of
the MOMED Class A Common Stock should be increased on account of any redemption of
outstanding stock by MOMED, a reorganization of the capital structure of MOMED or any other
action of MOMED or its shareholders (other than MSMA), MSMA shall not be deemed in default
of this Paragraph 5.
6. Term. The term of this Agreement shall begin on the closing of the transactions
contemplated in the Share Exchange Agreement and shall expire sixty (60) months thereafter, but
may be renewed or extended by agreement of MOMED and MSMA. Any renewal or extension of
this Agreement must be agreed upon, in writing, at least six (6) months prior to the end of the term
of this Agreement. Failure to renew or extend this Agreement as provided in this Paragraph 6 shall
cause this Agreement to automatically expire and to be of no further force or effect.
7. Shareholder Approval. This Agreement shall, with the full support of MOMED
management, be presented to the MOMED shareholders for approval at the 1994 Annual Meeting
of Shareholders.
8. Severability. Any provision of this Agreement which is prohibited, unenforceable or not
authorized in any jurisdiction is, as to such jurisdiction, ineffective to the extent of any such
prohibition, unenforceability or nonauthorization without invalidating the remaining provisions
hereof, or affecting the validity, enforceability or legality of such provision in any other
jurisdiction, unless the ineffectiveness of such provision would result in such a material change as
to cause completion of the transactions contemplated hereby to be unreasonable.
9. Entire Agreement. This Agreement constitutes the entire agreement between the parties
and supersedes and cancels any and all prior discussion, negotiations, undertakings and agreements
between the parties relating to the subject matter hereof.
10. Captions. The captions used herein are for convenience only and shall not control or
affect the meaning or construction of any of the provisions of this Agreement.
11. Waiver, Amendment or Modification. The conditions of this Agreement which may be
waived may only be waived by notice to the other party waiving such condition. The failure of any
party at any time or times to require performance of any provision hereof (other than by written
waiver) shall in no manner affect the right at a later time to enforce the same. This Agreement may
not be amended or modified except by a written document duly executed by all of the parties
hereto.
12. Rules of Construction. Unless the context otherwise requires: (a) a term has the
meaning assigned to it; (b) an accounting term not otherwise defined has the meaning assigned to it
in accordance with generally accepted accounting principles; (c) "or" is not exclusive; and (d)
words in the singular may include the plural and in the plural include the singular.
13. Counterparts. This Agreement may be executed in two or more counterparts, each of
which shall be deemed an original and all of which shall be deemed one and the same instrument.
14. Successors and Assigns. This Agreement shall be binding upon and inure to the benefit
of the parties hereto and their respective successors and assigns. There shall be no third party
beneficiaries hereof.
15. Governing Law; Assignment. This Agreement shall be governed by the laws of the
State of Missouri. This Agreement may not be assigned by any of the parties hereto.
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of the
date first above written.
MOMED HOLDING CO.
By______________________________
Richard V. Bradley M.D., President and
Chief Executive Officer
MISSOURI STATE MEDICAL ASSOCIATION
By:__________________________
H. Jerry Murrell, MD., President
Exhibit BVOTING AGREEMENT
THIS VOTING AGREEMENT is made and entered into as of the ___ day of _______,
1994, by and between MOMED HOLDING CO., a Missouri corporation ("MOMED") and
MISSOURI STATE MEDICAL ASSOCIATION, a Missouri not-for-profit corporation
("MSMA"), RICHARD V. BRADL.EY, M.D., KRIETE H. HOLLRAH and LEONARD L.
DAVIS, JR, MD. (hereinafter collectively referred to as the "Select Shareholders").
RECITALS
A. The Select Shareholders are the record and beneficial owners and have the power to
vote the respective number of shares of MOMED Class A Common Stock, $1.00 par value, (the
"MOMED Class A Common Stock") set forth on Schedule A hereto (collectively, the "Shares").
B. The Select Shareholders desire that MSMA and MOMED enter into a Share
Exchange Agreement (the "Share Exchange Agreement") and a Nomination Agreement (the
"Nomination Agreement").
C. The Select Shareholders are executing this Voting Agreement as an inducement to
MSMA to enter into and execute the Share Exchange Agreement and the Nomination Agreement.
In consideration of the premises and the mutual terms and provisions set forth in this
Agreement, the parties hereto agree as follows:
1. Covenants of the Select Shareholders.
a. At any meeting of MOMED shareholders called to vote upon the Share Exchange
Agreement and the Nomination Agreement or at any adjournment thereof or in any other
circumstances in which a vote or other approval of the shareholders of MOMED of the Share
Exchange Agreement and the Nomination Agreement is sought, the Select Shareholders severally
shall vote (or cause to be voted) the Shares in favor of the Share Exchange Agreement and the
Nomination Agreement as well as in favor of such amendments to the Restated Articles of
incorporation of MOMED as may be necessary or appropriate to effectuate the terms of any
thereof.
b. At any meeting of MOMED shareholders or at any adjournment thereof or in any other
circumstances in which a vote or other approval of the shareholders of MOMED is sought, the
Select Shareholders severally shall vote (or cause to be voted) the Shares against any transaction or
proposal which would in any manner impede, frustrate, prevent, impair or nullify the Share
Exchange Agreement or the Nomination Agreement or any of the other transactions contemplated
by such agreements.
c. During the term of this Voting Agreement, at any meeting of MOMED shareholders
called to vote upon the election of Directors to the MOMED Board of Directors or at any
adjournment thereof, the Select Shareholders severally shall vote (or cause to be voted) all Shares
owned by them, as set forth opposite their respective names in Schedule A hereto, cumulatively in
such manner as shall be necessary to elect as a Director the MSMA nominee whose name shall
appear on the proxy materials distributed by or on behalf of MOMED.
d. During the term of this Voting Agreement, each of the Select Shareholders severally
agrees that this Voting Agreement and the obligations hereunder shall attach to the Shares and shall
be binding upon any person or entity to whom legal or beneficial ownership of the Shares shall
pass' whether by operation of law or otherwise, including without limitation its respective heirs,
guardians, administrators or successors and to notify such transferee or prospective transferee of the
existence of this Voting Agreement. In the event of any stock split, stock dividend, merger,
reorganization, recapitalization or other change in the capital structure of MOMED affecting the
MOMED Class A Common Stock, or acquisition of additional shares of MOMED Class A
Common Stock by any of the Select Shareholders, the number of Shares listed in Schedule A
beside the name of each such Select Shareholder shall be revised or adjusted appropriately and this
Voting Agreement and the obligations hereunder shall attach to any such additional shares of
MOMED Class A Common Stock.
2. Representations and Warranties. Each of the Select Shareholders severally represents
and warrants to MSMA that such Select Shareholder is the beneficial and record owner of, and has
full power and authority to dispose of and the unrestricted right to vote, the number of shares of
MOMED Class A Common Stock set forth opposite such Select Shareholder's name in Schedule A
hereto. 3. Legends. The Shares shall be legended to indicate that such Shares are subject to the
terms and conditions of this Voting Agreement.
4. Limitation of MSMA Ownership. During the term of this Voting Agreement, including
any extensions or renewals hereof, MSMA shall not, without the consent of a majority of the
MOMED Board of Directors, directly or indirectly, acquire additional shares of the Class A
Common Stock of MOMS) so as to increase its percentage ownership of the outstanding Class A
Common Stock of MOMED to more than fifteen percent (15%). In the event that MSMA's
percentage ownership of the MOMED Class A Common Stock should be increased on account of
any redemption of outstanding stock by MOMED, a reorganization of the capital structure of
MOMED or any other action of MOMED or its shareholders (other than MSMA), MSMA shall not
be deemed in default of this Paragraph 4.
5. Term. The term of this Voting Agreement shall begin on the closing of the transactions
contemplated in the Share Exchange Agreement and shall expire sixty (60) months thereafter, but
may be renewed or extended by agreement of the parties hereto. Any renewal or extension of this
Voting Agreement must be agreed upon, in writing, at least six (6) months prior to the end of the
term of this voting Agreement. Failure to renew or extend this Voting Agreement as provided in
this Paragraph 5 shall cause this Voting Agreement to automatically expire and to be of no further
force or effect.
6. Severability. Any provision of this Voting Agreement which is prohibited,
unenforceable or not authorized in any jurisdiction is, as to such jurisdiction, ineffective to the
extent of an',' such prohibition, unenforceability or nonauthorization without invalidating the
remaining provisions hereof, or affecting the validity, enforceability or legality of such provision in
any other jurisdiction, unless the ineffectiveness of such provision would result in such a material
change as to cause completion of the transactions contemplated hereby to be unreasonable.
7. Entire Agreement. This Voting Agreement constitutes the entire agreement between the
parties and supersedes and cancels any and all prior discussion, negotiations, undertakings and
agreements between the parties relating to the subject matter hereof.
8. Captions. The captions used herein are for convenience only and shall not control or
affect the meaning or construction of any of the provisions of this Voting Agreement.
9. Waiver. Amendment or Modification. The conditions of this Voting Agreement which
may be waived may only be waived by notice to the other party waiving such condition. The failure
of any party at any time or times to require performance of any provision hereof (other than by
written waiver) shall in no manner affect the right at a later time to enforce the same. This Voting
Agreement may not be amended or modified except by a written document duly executed by all of
the parties hereto.
10. Rules of Construction. Unless the context otherwise requires: (a) a term has the meaning
assigned to it; (b) an accounting term not otherwise defined has the meaning assigned to it in
accordance with generally accepted accounting principles; (c) "or" is not exclusive; and (d) words
in the singular may include the plural and in the plural include the singular.
11. Counterparts. This Voting Agreement may be executed in two or more counterparts,
each of which shall be deemed an original and all of which shall be deemed one and the same
instrument
12. Successors and Assigns. This Voting Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective heirs, administrators, successors and assigns. There
shall be no third party beneficiaries hereof
13. Governing Law Assignment. This Voting Agreement shall be governed by the laws of
the State of Missouri. This Voting Agreement may not be assigned by any of the parties hereto.
IN WITNESS WHEREOF, the parties hereto have duly executed this Voting Agreement as
of the date first above written.
MOMED HOLDING CO.
Richard V Bradley M.D., President
and Chief Executive Officer
MISSOURI STATE MEDICAL ASSOCIATION
By
H. Jerry Murrell, M.D., President
RICHARD V.BRADLEY, MD.
KRIETE H. HOLLRAH
LEONARD L DAVIS, JR, M.D.
Schedule AShares of Common
Stock Owned with Percentage of Total
Shareholder Power to Vote Shares Outstanding
Richard V. Bradley, M.D. 12,025 5.4%
Kriete H. Hollrah 2,500 1.12%
Leonard L. Davis, Jr., M.D. 13,062 5.9%
Exhibit C
[Missouri State Medical Association Letterhead ]
August 16, 1994
MOMED Holding Co.
8630 Delmar Boulevard
Suite 100
St. Louis, Missouri 63124
Re: Share Exchange Agreement dated as of July 21, 1994 between MOMED Holding Co. and
Missouri State Medical Association
Ladies and Gentlemen:
In accordance with the requirements of that certain Share Exchange Agreement dated as of July
21,1994 (the Share Exchange Agreement") by and between MOMED Holding Co., a Missouri
corporation ("MOMED") and Missouri State Medical Association, a Missouri not-for-profit
corporation ("MSMA"), MSMA hereby surrenders to MOMED possession of the enclosed
certificates representing all 24,185 shares of the issued and outstanding MOMED Class B Common
Stock MSMA intends that these certificates, and the shares represented thereby be marked
"canceled".
MISSOURI STATE MEDICAL ASSOCIATION
By:
H. Jerry Murrell, M.D., President
Exhibit D
[Lewis, Rice & Fingersh Letterhead]
August 16, 1994
Missouri State Medical Association
113 Madison Street
P.O. Box 1028
Jefferson City; MO 65102
RE: Share Exchange Agreement dated as of July 21, 1994 between MOMED Holding Co. and the
Missouri State Medical Association and certain related documents
Ladies and Gentlemen:We have acted as counsel to MOMED Holding Co., a Missouri corporation ("MOMED")
and its wholly owned subsidiary Missouri Medical Insurance Co., a Missouri corporation
("MOMEDICO") in connection with the execution and delivery of, and consummation of the
transactions contemplated by (i) that certain Share Exchange Agreement dated as of July 21, 1994
(the "Share Exchange Agreement") by and between MOMED and Missouri State Medical
Association, a Missouri not-for-profit corporation ("MSMA") pursuant to which MOMED is
issuing and delivering to MSMA 24,185 shares of MOMED Class A Common Stock, par value
$1.00 per share, (the "Class A Shares") and 24,185 shares of MOMED's non-voting Class C
Common Stock, par value $1.00 per share, (the Class C Shares") in exchange for 24,185 shares of
MOMED Class B Common Stock, par value $25.00 per share, (the "Class B Shares") owned by
MSMA, (ii) that certain Nomination Agreement dated as of July ___, 1994 (the "Nomination
Agreement" and together with the Share Exchange Agreement the "MOMED Documents") by and
between MOMED and MSMA, (iii) that certain license Agreement dated as of July 21, 1994 (the
"license Agreement") by and between MOMEDICO and MSMA, and (iv) that certain Reciprocal
Assistance Agreement dated as of July 21, 1994 (the "Reciprocal Assistance Agreement" and
together with the License Agreement the "MOMEDICO Documents") by and between
MOMEDICO and MSMA.
As such counsel, we have examined executed copies of the MOMED Documents and the
MOMEDICO Documents, the Amended and Restated Articles of Incorporation of MOMED and
the By-Laws of MOMED, as amended, the Articles of Incorporation and By-laws of MOMEDICO
and such other laws, corporate records, documents and agreements as we deemed necessary to
render the opinions expressed herein. Based thereon, we are of the opinion that
1. MOMED and MOMEDICO are corporations duly organized, validly existing and in
good standing under the laws of the State of Missouri.
2. Each of MOMED and MOMEDICO has the requisite corporate power and authority to
execute, deliver and perform its obligations, in the case of MOMED, under the MOMED
Documents and, in the case of MOMEDICO, under the MOMEDICO Documents.
3. The MOMED shareholders and directors have taken all action necessary to authorize the
execution and delivery by MOMED of the MOMS) Documents and consummation of the
transactions contemplated thereby and the MOMED Documents have been duly authorized,
executed and delivered by MOMED and constitute the valid and legally binding obligations of MOMS).
4. The MOMEDICO shareholders and directors have taken all action necessary to
authorize the execution and delivery by MOMEDICO of the MOMEDICO Documents and
consummation of the transactions contemplated thereby and the MOMEDICO Documents have
been duly authorized, executed and delivered by MOMEDICO and constitute the valid and legally
binding obligations of MOMEDICO.
5. The Class A Shares and the Class C Shares, when delivered by MOMED to MSMA in
exchange for the Class B Shares owned by MSMA, will be duly authorized, validly issued and
outstanding, fully paid and non-assessable, with no personal liability attached to the ownership
thereof.
Very truly yours,
LEWIS, RICE & FINGERSH
