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As filed with the Securities and Exchange Commission on July 2, 2014

Registration No. 333-                


UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549

FORM S-1
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933

DIPLOMAT PHARMACY, INC.
(Exact Name of Registrant as Specified in Its Charter)

Michigan
(State or Other Jurisdiction of
Incorporation or Organization)
  5122
(Primary Standard Industrial
Classification Code Number)
  38-2063100
(I.R.S. Employer
Identification Number)

4100 S. Saginaw St.
Flint, MI 48507
(888) 720-4450
(Address, Including Zip Code, and Telephone Number, Including Area Code, of Registrant's Principal Executive Offices)

Sean Whelan
Chief Financial Officer
Diplomat Pharmacy, Inc.
4100 S. Saginaw St.
Flint, MI 48507
(888) 720-4450
(Name, Address, Including Zip Code, and Telephone Number, Including Area Code, of Agent For Service)

Copies to:

Michael S. Ben, Esq.
Honigman Miller Schwartz and Cohn LLP
2290 First National Building
660 Woodward Avenue
Detroit, MI 48226-3506
Telephone: (313) 465-7000
Fax: (313) 465-8000

 

William J. Whelan, III, Esq.
Cravath, Swaine & Moore LLP
Worldwide Plaza
825 Eighth Avenue
New York, NY 10019-7475
Telephone: (212) 474-1000
Fax: (212) 474-3700

Approximate date of commencement of proposed sale to the public: As soon as practicable after the effective date of this Registration Statement.

          If any of the securities being registered on this form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, check the following box.     o

          If this form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering.     o

          If this form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering.     o

          If this form is a post-effective amendment filed pursuant to Rule 462(d) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering.     o

          Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions of "large accelerated filer," "accelerated filer" and "smaller reporting company" in Rule 12b-2 of the Exchange Act.

Large accelerated filer  o   Accelerated filer  o   Non-accelerated filer  ý
(Do not check if a
smaller reporting company)
  Smaller reporting company  o

CALCULATION OF REGISTRATION FEE

       
 
Title of Each Class of Securities
to be Registered

  Proposed Maximum
Aggregate Offering
Price(1)(2)

  Amount of
Registration Fee(3)

 

Common Stock, no par value per share

  $100,000,000   $12,880

 

(1)
Includes shares that the underwriters have the option to purchase to cover overallotments, if any.

(2)
Estimated solely for the purpose of computing the amount of the registration fee pursuant to Rule 457(o) under the Securities Act of 1933, as amended.

(3)
Calculated pursuant to Rule 457(o) under the Securities Act of 1933, as amended.

           The Registrant hereby amends this Registration Statement on such date or dates as may be necessary to delay its effective date until the Registrant shall file a further amendment which specifically states that this Registration Statement shall thereafter become effective in accordance with Section 8(a) of the Securities Act of 1933, as amended, or until the Registration Statement shall become effective on such date as the Securities and Exchange Commission, acting pursuant to said Section 8(a), may determine.

   


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The information in this preliminary prospectus is not complete and may be changed. We and the selling shareholders may not sell these securities until the registration statement filed with the Securities and Exchange Commission is effective. This preliminary prospectus is not an offer to sell these securities and it is not soliciting an offer to buy these securities in any state where the offer or sale is not permitted.

SUBJECT TO COMPLETION, DATED JULY 2, 2014

             Shares

GRAPHIC

Diplomat Pharmacy, Inc.

Common Stock

        This is the initial public offering of shares of common stock of Diplomat Pharmacy, Inc.

        We are selling             shares of common stock, and the selling shareholders identified in this prospectus are selling             shares of common stock. We will not receive any proceeds from the sale of shares by the selling shareholders.

        Prior to this offering, there has been no public market for our common stock. The initial public offering price of the common stock is expected to be between $             and $             per share. We intend to apply to list our common stock on the             under the symbol "         ".

        The underwriters have an option to purchase a maximum of             additional shares from the selling shareholders to cover overallotments of shares, if any.

         Investing in our common stock involves risks. See "Risk Factors" beginning on page 17.

 
  Price to
Public
  Underwriting
Discounts and
Commissions
  Proceeds to
Diplomat
Pharmacy, Inc.
  Proceeds to
the Selling
Shareholders
 
Per Share   $     $     $     $    
Total   $     $     $     $    

        Delivery of the shares of common stock will be made on or about             , 2014.

        Neither the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or passed upon the adequacy or accuracy of this prospectus. Any representation to the contrary is a criminal offense.

Credit Suisse   Morgan Stanley

J.P. Morgan

 

Wells Fargo Securities

William Blair

 

Leerink Partners

   

The date of this prospectus is                           , 2014.


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TABLE OF CONTENTS

TRADEMARKS AND TRADE NAMES

    i  

INDUSTRY AND MARKET DATA

    ii  

PROSPECTUS SUMMARY

    1  

RISK FACTORS

    17  

SPECIAL NOTE REGARDING FORWARD-LOOKING STATEMENTS

    36  

USE OF PROCEEDS

    38  

DIVIDEND POLICY

    39  

CAPITALIZATION

    40  

DILUTION

    43  

SELECTED CONSOLIDATED FINANCIAL DATA

    45  

MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS

    50  

BUSINESS

    69  

MANAGEMENT

    93  

EXECUTIVE COMPENSATION

    98  

CERTAIN RELATIONSHIPS AND RELATED-PARTY TRANSACTIONS

    112  

PRINCIPAL AND SELLING SHAREHOLDERS

    116  

DESCRIPTION OF CAPITAL STOCK

    118  

DESCRIPTION OF INDEBTEDNESS

    122  

SHARES ELIGIBLE FOR FUTURE SALE

    124  

MATERIAL U.S. FEDERAL INCOME AND ESTATE TAX CONSIDERATIONS FOR NON-U.S. HOLDERS OF COMMON STOCK

    126  

UNDERWRITING

    130  

LEGAL MATTERS

    135  

EXPERTS

    135  

WHERE YOU CAN FIND MORE INFORMATION

    136  

INDEX TO THE CONSOLIDATED FINANCIAL STATEMENTS

    F-1  

         You should rely only on the information contained in this prospectus or to which we have referred you. None of us, the selling shareholders or the underwriters have authorized anyone to provide you with information that is different from that contained in this prospectus or any free-writing prospectus prepared by us or on our behalf. We do not, and the selling shareholders and the underwriters do not, take any responsibility for, and can provide no assurances as to, the reliability of any information that others provide to you. We and the selling shareholders are offering to sell, and seeking offers to buy, shares of common stock only in jurisdictions where offers and sales are permitted. The information contained in this prospectus is accurate only as of the date of this prospectus, regardless of the time of delivery of this prospectus or of any sale of the common stock.

         Until                        , 2014 (25 days after the commencement of this offering), all dealers that buy, sell or trade shares of our common stock, whether or not participating in this offering, may be required to deliver a prospectus. This delivery requirement is in addition to the obligation of dealers to deliver a prospectus when acting as underwriters and with respect to their unsold allotments or subscriptions.

        For investors outside the United States: none of we, the selling shareholders or any of the underwriters have done anything that would permit this offering or possession or distribution of this prospectus in any jurisdiction where action for that purpose is required, other than in the United States. You are required to inform yourselves about and to observe any restrictions related to this offering and the distribution of this prospectus outside of the United States.


TRADEMARKS AND TRADE NAMES

        This prospectus includes our trademarks and trade names, such as DIPLOMAT® and DIPLOMAT SPECIALTY PHARMACY®, which are protected under applicable intellectual property laws and are our property. This prospectus also contains trademarks, trade names and service marks of other companies, which are the property of their respective owners. Solely for convenience, trademarks and trade names referred to in this prospectus may appear without the ®, TM or SM symbols, but such references are not intended to indicate, in any way, that we will not assert, to the fullest extent under applicable law, our rights or the right of the applicable licensor to these trademarks, trade names and service marks. We do not intend our use or display of other parties' trademarks, trade names or service marks to imply, and such use or display should not be construed to imply, endorsement or sponsorship of us by these other parties.

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INDUSTRY AND MARKET DATA

        Certain information contained in this prospectus concerning our industry and the markets in which we operate is based on information from publicly available independent industry and research organizations and other third-party sources, and management estimates. Management estimates are derived from publicly available information released by independent industry and research analysts and third-party sources, as well as data from our internal research, and are based on assumptions made by us upon reviewing such data and our knowledge of such industry and markets, which we believe to be reasonable. We have also included information derived from Diplomat patient and physician satisfaction surveys that were conducted by a third-party research organization commissioned by us. We believe the data from these third-party sources is reliable, but we have not independently verified any third-party information. In addition, projections, assumptions and estimates of the future performance of the industry in which we operate and our future performance are necessarily subject to uncertainty and risk due to a variety of factors, including those described under "Risk Factors" and "Special Note Regarding Forward-Looking Statements." These and other factors could cause results to differ materially from those expressed in the estimates made by these third-party sources.

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PROSPECTUS SUMMARY

         This summary highlights information appearing elsewhere in this prospectus and does not contain all of the information that you should consider in making your investment decision. Before investing in our common stock, you should read the entire prospectus carefully, including the sections titled "Risk Factors" and "Management's Discussion and Analysis of Financial Condition and Results of Operations" and our consolidated financial statements and related notes included elsewhere in this prospectus. Unless the context suggests otherwise, references in this prospectus to "Diplomat," "the Company," "we," "us" and "our" refer to Diplomat and its consolidated subsidiaries.

Business Overview

        We are the nation's largest independent specialty pharmacy and are focused on improving the lives of patients with complex chronic diseases. We believe we have a unique patient-centric approach that positions us at the center of the healthcare continuum for the treatment of these diseases and enables us to drive superior care coordination through partnerships with patients, payors, pharmaceutical manufacturers and physicians. We offer a broad range of innovative solutions to address the dispensing, delivery, dosing and reimbursement of clinically intensive, high-cost specialty drugs. We believe that we are a chosen partner for leading biotechnology and pharmaceutical companies based on our ability to deliver customized support services and dispense new drugs to complex chronic disease patient populations. As a result, we believe we are well positioned to continue expanding our market share in the high-growth $63 billion specialty pharmacy industry.

        Diplomat has a long track record of growth and innovation. We were founded in 1975 by our Chief Executive Officer, Philip Hagerman, and his father, Dale, both trained pharmacists who transformed our business from a traditional pharmacy into a leading specialty pharmacy. In 2005, we began to expand the scope of our specialty pharmacy business from a small, regional operation to a large national enterprise, allowing us to capitalize on the growth of the specialty pharmacy market from approximately $20 billion in sales in 2005 to $63 billion in sales in 2013, representing a compounded annual growth rate of approximately 15%. As a result, we have grown our revenues organically to over $1.5 billion in 2013, achieving a compounded annual growth rate of over 65% since 2005, and we are now the fourth largest overall specialty pharmacy in the United States. To achieve this growth, we have consistently strengthened our clinical expertise in key therapeutic categories, such as oncology and immunology, broadened the scope of our services to retailers, hospitals and health systems and strengthened our relationships with patients, payors, pharmaceutical manufacturers and physicians.

        We focus on specialty drugs that are typically administered on a recurring basis to treat patients with complex chronic diseases that require specialized handling and administration as part of their distribution process. We have expertise across a broad range of high-growth specialty therapeutic categories, including oncology, immunology, hepatitis, multiple sclerosis, HIV and infusion therapy. Our comprehensive, patient-focused services ensure that patients receive a superior standard of care including assistance with complicated medication therapies, refill processing, third-party funding support programs, side effect management and adherence monitoring. We customize solutions for each patient based on the patient's overall health, disease and family history, lifestyle and financial means. We believe we reduce long-term costs for patients and payors by improving patient care, enhancing clinical outcomes, managing high risk members, monitoring patient adherence, and optimizing the utilization of specialty drugs, many of which can cost well over $100,000 per patient, per year. This value proposition to payors and patients has helped us expand our managed lives under contract from approximately five million in 2009 to approximately 13 million in 2013.

        Collectively, our unique ability to enhance patient adherence to complex drug regimens, to collect and report data, and to ensure effective dispensing of complex specialty medications supports the clinical and commercial needs of pharmaceutical manufacturers. Furthermore, our patient and provider

 

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support services ensure appropriate drug initiation, facilitate patient compliance and persistence, and capture important information regarding safety and effectiveness of the specialty medications that we dispense. Our services, together with our proactive engagement with pharmaceutical manufacturers early in the drug development process, have contributed to our current and growing access to limited distribution drugs, which we define as drugs that are only available for distribution by a select network of specialty pharmacies. Our inclusion in limited distribution networks provides critical sources of revenue growth and provides a catalyst for our future growth.

        Our core revenues are derived from the customized care management programs we deliver to our patients, including the dispensing of their specialty medications. Because our core therapeutic categories generally require multi-year or life-long therapy, our singular focus on these complex chronic diseases helps drive recurring revenues and sustainable growth. Our revenues grow, in part, as we help more patients access the drugs they need in order to live longer and healthier lives. As a part of our mission to improve patient care, we provide specialty pharmacy support services to a national network of 8 retailers and independent pharmacy groups, representing approximately 4,500 stores and 48 hospitals and health systems. For many of our retail, hospital and health system partners, we earn revenue by providing clinical and administrative support services on a fee-for-service basis to help them dispense specialty medications. Thus, our patient-focused solutions benefit multiple partners across the healthcare continuum, which we believe drives the sustainability of our business model.

Market Opportunity

        Specialty pharmaceuticals represent a significant and growing total addressable market.     The specialty pharmaceutical market has experienced significant growth in recent years as complex chronic conditions, care coordination, technology-enabled patient care, biotechnology research and outcomes-based healthcare have increased in focus. The total specialty benefits represented approximately $92 billion in drug spend in 2012. Total specialty pharmaceutical drug spend covered under the pharmacy benefit was approximately $51 billion in 2012 and is estimated to grow to $118 billion by 2018. While our historic focus has been pharmacy benefit, a significant portion of the specialty drug market is funded through medical benefit. Specialty drugs reimbursed under the medical benefit have also expanded rapidly in recent years and were approximately $41 billion, or approximately 45%, of the total specialty drug spend in 2012. Increasingly, drugs that have historically been reimbursed under the medical benefit are being moved to the pharmacy benefit by health plans and pharmacy benefit managers to better manage care and control costs. We believe that the medical benefit represents a significant additional revenue opportunity for us and expect it to play a larger role in our business going forward. In addition, we believe that our track record and leadership in limited distribution drug programs will create opportunities for us to gain market share in this growing segment of the specialty pharmacy market.

        Growth in specialty drug spend is significantly outpacing the broader pharmaceutical market.     Specialty drugs are the fastest growing segment of the pharmaceutical market, and spend in this segment is estimated to grow at approximately 20% annually from 2012 to 2018, whereas traditional drug spend is expected to decline. Specialty pharmaceutical products are targeted towards high-cost complex medical conditions, have fewer direct substitutes than traditional pharmaceuticals and face limited near-term generic market entry. These factors limit competition and drive higher prices. Additionally, specialty drug approvals comprised over 50% of all Federal Drug Administration ("FDA") drug approvals in 2013 as pharmaceutical and biotechnology companies have continued to invest in specialty drug development. This trend is expected to continue, driven by a robust pipeline of specialty drugs, which represent approximately 45% of the total number of drugs currently in development.

        Oncology and immunology, therapeutic categories in which we believe we are a leader, are large and growing therapeutic categories within the specialty pharmaceuticals industry.     The oncology market represented 29% of specialty pharmaceutical sales in the U.S. in 2013. The immunology market,

 

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including the disease states rheumatoid arthritis, psoriasis and crohn's disease, also represents a large and growing specialty market. We believe these two therapeutic categories will continue to grow, given that there are over 400 oncology and immunology drugs currently in clinical development which represent over 40% of the biologics pipeline. Further, there are over 3,000 oncology and immunology drugs in global drug development. Given the chronic nature of these disease states, we provide recurring services to these patients over long periods of time. In 2013, we generated over 70% of our revenues in oncology and immunology, and our historical growth has largely been driven by our position as a leader in these categories.

Competitive Strengths

      We are the nation's largest independent and fourth largest overall specialty pharmacy, and we believe we are well positioned to continue to increase our market share based on the following competitive strengths.

        Adding value to all constituents.     The value we deliver to all constituents is centered upon our core focus on patients. We help patients adhere to complicated medication therapies, process refills and manage any side effects and insurance concerns to ensure they get the best standard of care. We also help identify third-party funding support programs to help cover expensive out-of-pocket costs. In 2013, we helped our patients successfully obtain $24 million of funding assistance to help cover out-of-pocket co-pay costs. Our focus on patients and our related patient-support programs have allowed us to achieve an overall patient satisfaction rate of approximately 99%.

GRAPHIC

      Supporting our core focus on patients, we also serve the following key constituents:

      (1) Payors:     We manage prescription regimens for chronically ill populations and help payors, which include insurance plans and pharmacy benefit managers, reduce costs through customized specialty pharmacy programs. Our high-touch electronic patient care platform, centered on our disease-specific technology solution, is customized for each payor's needs and is designed to improve efficiency and lower costs. For example, through our partial fill program, we promote

 

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      more frequent direct intervention and tracking of patients and their therapies by our highly trained clinical experts.

      (2) Biotechnology and Pharmaceutical Manufacturers:     We offer specialized and highly customized prescription programs for pharmaceutical companies to help them optimize and track patient adherence which helps drive the clinical and commercial success of specialty drugs. In addition, we partner with pharmaceutical manufacturers early by helping them develop specialty pharmaceutical channel strategies as part of their commercial launch preparation.

      (3) Physicians and Health Systems:     Our team works with physician offices to manage prior-authorization and other managed care organization requirements, such as denial and appeal process, to ensure that complicated administrative tasks do not impair the delivery of quality patient care. Additionally, we provide risk evaluation services, implement risk mitigation strategies and collect patient adherence data to provide physicians and health systems with enhanced visibility on patient outcomes. Our transparency and support has led to a physician satisfaction rate of approximately 97%.

      (4) Retailers and Hospitals:     We provide clinical and administrative support services for our retail and hospital partners on a fee-for-service basis. Based on our broad industry experience, infrastructure and treatment-tracking software, our retail specialty network solution provides customized clinical and administrative support services that help retailers and their specialty patients improve financial and clinical outcomes. We provide hospitals with unique solutions to maximize cost containment, improve efficiency and clinical outcomes from specialty pharmaceuticals. Our programs also support hospitals that are 340B covered entities through a contracted pharmacy strategy.

        Significant and longstanding payor relationships—approximately 13 million managed lives under contract.     We partner with 40 regional and mid-sized payors and independent pharmacy benefit managers to improve patient outcomes and lower costs by managing high risk members and implementing patient-focused specialty programs. We strive to improve the clinical outcomes for high-risk members through adherence monitoring, patient education and clinical intervention. We offer payors access to limited distribution drugs and unique cost containment programs, including partial refill programs, clinical management and motivational interviewing techniques for improving adherence. We believe that medication non-adherence (i.e., patients not following the instructions for their medication or failing to finish taking their medication) is the largest avoidable cost in specialty pharmacy, and we have achieved patient adherence rates of over 90% for the quarter ended March 31, 2014 with our patient training and education, compliance packaging, prophylactic starter kits and nurse adherence calls. We believe that our focus on high-touch patient care and our experience with high-risk populations makes us well-positioned for the anticipated growth in managed lives under the Affordable Care Act, particularly with respect to managed Medicaid coverage.

        Partner of choice for biotechnology and pharmaceutical manufacturers.     We believe that our role as the partner of choice for many biotechnology and pharmaceutical manufacturers is based on the following attributes:

    Expertise in managing limited distribution drugs.   We have historically earned access to many limited distribution drugs, both at the time of their launch and post-launch. We actively monitor the drug pipeline and we maintain dialogue with many of the major biotechnology and pharmaceutical manufacturers to identify opportunities in all pre-commercial stages of drug development. We believe that limited distribution is becoming the delivery system of choice for many drug manufacturers because it facilitates high patient engagement, clinical expertise and elevated focus on service. Furthermore, we believe that our innovative solutions and service-oriented culture set us apart from our competitors, have enabled us to win a large number of limited distribution contracts and is more appealing than our competitors' platforms to emerging

 

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      biotechnology firms and the boutique consulting firms that advise them. We believe that the trend toward limited distribution of specialty drugs will continue to expand in the future, making strong representation in this area essential. Accordingly, we believe our current portfolio of over 70 limited distribution drugs positions us for disproportionate growth as more limited distribution drugs come to market.

    Proven track record of adding value.   We believe we outperform our competitors in providing services that benefit specialty drug manufacturers. Our superior services are driven by our clinical expertise in oncology, immunology, hepatitis, multiple sclerosis, HIV and specialty infusion. We offer targeted pilot programs, full reporting capabilities and a variety of additional services that support patients' medication adherence when clinically appropriate. We believe these superior services and capabilities were a primary driver of our gaining access to, and becoming the largest of five specialty pharmacies authorized to, dispense Imbruvica, Pharmacyclics' Mantle Cell Lymphoma drug launched in November 2013.

    Breadth of channel partners.   In addition to maintaining our strong relationships with payors, physicians, manufacturers and patients, we also partner with retailers, hospitals and health systems by providing critical patient-facing clinical and administrative services that help support the specialty pharmacy capabilities of these constituents. These partnerships broaden our exposure and influence across the healthcare continuum.

    Relationships with clinical experts and key opinion leaders.   Our singular focus on specialty pharmacy and complex chronic diseases has enabled us to develop strong relationships with clinical experts and thought leaders in key therapeutic categories, such as oncology and immunology. We leverage these relationships to gain greater visibility into future drug launches and to stay current on the latest advances in patient care.

        National footprint with highly scalable infrastructure.     During the past several years, we have made significant investments to expand our capabilities and capacity, which we believe will help us to enhance sales volume, improve efficiency and create significant barriers to entry. In December 2010, we moved our corporate headquarters to a 550,000 square foot facility in Flint, Michigan. Our operations within this facility, are highly scalable, as we currently utilize approximately 40% of the facility giving us significant capacity to execute our long term growth plan without significant additional capital expenditures. Our physical footprint has enabled us to develop a centralized infrastructure that we have successfully scaled to dispense to all 50 states. We now have an advanced distribution center that enables us to ship medications nationwide as well as a centralized clinical call center that helps us deliver localized services on a national scale. In addition to our headquarters, we also operate smaller regional facilities in Flint, Michigan; Grand Rapids, Michigan; Chicago, Illinois; Ft. Lauderdale, Florida; Ontario, California; Enfield, Connecticut; Raleigh, North Carolina; and Springfield, Massachusetts. We are fully accredited and licensed to conduct business in each of the states that require such licensure.

        Strong financial profile combines sustainable growth and low capital intensity.     Our financial profile is comprised of a recurring revenue model that is driven by the chronically ill populations we serve. As a result, we have demonstrated strong growth in revenue and profitability. We have achieved consistent revenue and Adjusted EBITDA growth with revenues increasing from $377 million in 2009 to $1,515 million in 2013 and Adjusted EBITDA increasing from $6 million in 2009 to $19 million in 2013, representing compound annual growth rates of 42% and 33%, respectively. In addition, we grew our net income from $3 million to $8 million over the same time period. See "—Summary Consolidated Financial Data" for our definition of Adjusted EBITDA, why we present Adjusted EBITDA and a reconciliation of our Adjusted EBITDA to net income. We expect our growth to continue to be driven by a highly visible and recurring base of revenues, favorable demographic trends, advanced clinical developments, expanding drug pipelines, earlier detection of chronic diseases and

 

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improved access to medical care. In addition, we believe that our expanding breadth of services, our growing penetration with new customers, and our access to limited distribution drugs, will help us achieve significant and sustainable growth and profitability in future.

        Highly experienced and passionate management team.     Our senior management team, which consists of six executives, has an average of over 26 years of experience in the pharmacy and specialty pharmacy industry and represents a group of highly recognized and respected industry veterans. Led by our Chief Executive Officer, Philip Hagerman, our management team is responsible for our proven track record of growth, consistent performance and industry leading service. Philip, a licensed pharmacist, second generation principal and recognized specialty pharmacy industry thought-leader, is a frequent speaker at state and national pharmacy conferences and has received several awards as a leading business executive in the country, including recognition by the White House Business Council for his leadership in job creation and community development. Our senior management team has an average tenure with Diplomat of over 12 years and brings a healthy balance of significant experience with Diplomat and with other companies in the industry, including public companies. In addition, our broader sales, clinical and operations team, has deep clinical expertise and includes over 50 licensed pharmacists.

Growth Strategy

        We plan to grow our business by continuing to execute on the following key growth strategies:

        Capitalize on track record to expand leadership positions in high-growth oncology and limited distribution markets.     We believe our track record of providing a customized, high level of service to our manufacturer partners in the oncology and immunology markets has led to repeat contract awards and initial limited distribution contracts related to new drugs our partners bring to market. For example, we believe our success as a distributing pharmacy for Zytiga, a metastatic castration resistant prostate cancer drug approved by the FDA in April 2011, helped earn us limited distribution access to Xtandi, another metastatic castration resistant prostate cancer drug approved by the FDA in August 2012. Xtandi has grown to become one of our top 10 drugs with over $40 million in annual sales in 2013. Our clinical and sales teams consistently engage our emerging biotechnology partners on commercialization strategy 12 to 18 months in advance of potential FDA approval. These pre-existing relationships position us to capture market share in these high-growth markets. One example was the launch of Cometriq, a drug currently indicated for a form of thyroid cancer, on which we collaborated with the manufacturer and became the exclusive distributor.

        Expand clinical expertise to a broad range of therapeutic categories.     We serve a broad range of therapeutic categories, and we believe we can expand our clinical expertise to increasingly penetrate additional markets such as hepatitis, multiple sclerosis, HIV and specialty infusion. We believe these categories will become increasingly important to our patient population in the coming years due to advancement of therapies and increased incidences of chronic illness and that our platform will allow us to grow with market expansion. Specifically, we view specialty infusion as an attractive market due to significant projected growth and higher margins, and we intend to continue to invest in this important and growing area of our existing business. Additionally, orphan and ultra-orphan drugs, which are associated with relatively small patient populations, are an increasingly important focus for us as the specific characteristics of these categories make utilization and compliance particularly challenging.

        Deepen and expand partner relationships.     We currently contract with and support regional and mid-sized payors and independent pharmacy benefit managers, employer groups, and union groups representing approximately 13 million managed lives across the United States. We plan to continue to work with our current clients to grow their membership and are focused on expanding our client base nationally. In addition to providing specialty pharmacy services for self-administered medications covered under the pharmacy benefit, we also offer office-administered medications covered under the medical benefit to ensure that we provide a full spectrum of care to our specialty patients regardless of

 

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type of their benefit coverage and where they receive care. Further, our partnerships with retail pharmacies and hospitals allow us to serve specialty patients beyond the traditional specialty pharmacy approach. These partnerships allow patients to more easily access specialty medications in the retail setting and also positions Diplomat to be a key partner for Accountable Care Organizations.

        Grow high-margin businesses and capitalize on investments to enhance key operating metrics.     In 2014, we contracted to significantly expand our retail customer base and expand our opportunities through service contracts to one of the largest hospital networks and group purchasing organizations. In addition, our continued expansion into the infusion market will provide us with opportunities to capitalize on a market which historically has provided higher margins. We have made significant investments in our technology, infrastructure and service lines to build a scalable foundation for growth, which we believe provides meaningful opportunities to grow revenues and enhance key operating metrics. We believe our investments in technology, both completed and in-process, will improve our operating cost profile and provide valuable revenue opportunities, as we enhance our data collection and delivery capabilities, services that are highly valued by our partners. Finally, we currently utilize approximately 40% of our 550,000 square foot facility in Flint, Michigan (purchased in 2010), providing meaningful capacity as we continue to scale our business.

        Selectively pursue growth through strategic acquisitions.     We believe the specialty pharmacy industry is highly fragmented and provides numerous opportunities to expand through acquisitions. While we will continue to focus on growing our business organically, we believe we can opportunistically enhance our competitive position through complementary acquisitions in both existing and new markets. For example, in December 2013, we completed the acquisition of American Homecare Federation, Inc. ("AHF"), a specialty infusion therapy provider focused primarily on hemophilia. In June 2014, we acquired MedPro Rx, Inc. ("MedPro"), a specialty pharmacy focused on specialty infusion therapies including hemophilia and immune globulin. Specialty infusion is differentiated from traditional home infusion in that it requires highly customized services and level of care with therapies that can exceed $300,000 in costs per patient per year. Additionally, we plan to selectively evaluate potential acquisition opportunities in other therapeutic categories, services and technologies, with the goal of preserving our culture, continuing to deliver superior patient outcomes, enhancing value to other constituents and building long-term value for our shareholders.

Risk Factors

        Investing in our common stock involves a high degree of risk. You should carefully consider the risks described under "Risk Factors" before making a decision to invest in our common stock. If any of these risks actually occurs, our business, results of operations, financial condition or prospects could be materially and adversely affected. Below is a summary of some of the principal risks we believe we face:

    anticipating and adapting to significant changes, trends, consolidation and increasing participation in the specialty pharmacy industry could adversely impact our ability to compete;

    pricing pressures from payors and pharmaceutical manufacturers may adversely affect our profitability;

    failure to maintain our existing relationships, and build new relationships, with key pharmaceutical manufacturers, physicians, payors, retailers, hospital and health systems would have a material and adverse effect on our business;

    complying with, and changes to, significant state and federal regulations could restrict our ability to conduct our business or cause us to incur significant costs;

    we may not have the resources, purchasing power or operating efficiencies to compete successfully with leading specialty pharmacies;

 

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    any significant adverse matters regarding the top specialty drugs we dispense, or disruptions in the supply chain of these specialty drugs, would have a material and adverse impact on our business and financial performance;

    we may not be able to successfully implement our organic growth or acquisition strategy; and

    our Chief Executive Officer and Chairman of the Board of Directors will control the outcome of matters submitted for shareholder approval, and he may have interests that differ from those of our other shareholders.

Recent Developments

    Business Acquisitions

        On December 16, 2013, we acquired all of the outstanding stock of AHF for a total acquisition price of approximately $13.4 million, excluding related acquisition costs of approximately $0.7 million. Included in the total acquisition price is $12.1 million in cash and contingent consideration fair valued at $1.3 million with a maximum payout of $2.0 million, that is based on the achievement of certain revenue and gross profit targets. AHF is a specialty pharmacy which focuses on patients with bleeding disorders, such as hemophilia, and is headquartered in Enfield, Connecticut. AHF generated $21.8 million in revenue and $4.9 million in gross profit, or 22.5% of revenue, in the nine months ended September 30, 2013. We acquired AHF to provide us access to certain direct purchase agreements with key hemophilia manufacturers and to expand our specialty infusion expertise. The results of operations for AHF are included in our consolidated financial statements from the acquisition date.

        On June 27, 2014, we acquired all of the outstanding stock of MedPro for $52.0 million in cash, 84.31703 shares of our Class B Nonvoting Common Stock, valued at approximately $12.0 million, and up to $11.5 million of contingent consideration (not yet fair valued) that is based on the achievement of certain revenue and gross profit targets. In connection with our acquisition of MedPro, we increased our line of credit to provide for comparable borrowing availability under the line of credit following the acquisition. See "—Amendment to Line of Credit." MedPro is a specialty pharmacy focused on specialty infusion therapies including hemophilia and immune globulin based in Raleigh, North Carolina. MedPro generated $81.6 million of revenue and $18.6 million of gross profit, or 22.8% of revenue, in the year ended December 31, 2013. We acquired MedPro to expand our existing specialty infusion business and to increase our presence in the mid-Atlantic and Southern regions of the country. The results of operations for MedPro will be included in our consolidated financial statements from the acquisition date.

    Issuances of Preferred Stock

        Prior to the issuance of preferred stock on January 23, 2014, as described below, we had 4,270.000 common shares outstanding and 4,856.198 diluted common shares outstanding assuming a price of $142,320 per share.

        On January 23, 2014, we sold to certain funds of T. Rowe Price, 351.32097 shares of Series A Preferred stock at a purchase price of $142,320 per share. We used $20.0 million of the $50.0 million investment proceeds for general corporate purposes, including fees associated with the transaction, and the remaining $30.0 million was used to redeem shares of common stock and common stock options.

        On April 1, 2014, we sold to certain funds of Janus Capital Group, 379.4267 shares of Series A Preferred stock at a purchase price of $142,320 per share. We used $25.2 million of the $54.0 million investment proceeds for general corporate purposes, including fees associated with the transaction, and the remaining $28.8 million was used to redeem shares of common stock and common stock options.

 

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        As of May 31, 2014, certain funds of T. Rowe Price and Janus Capital Group beneficially owned 15.8% in aggregate of our common stock (on an as-converted basis from Series A preferred stock to Series C common stock). Such ownership percentage reflects redemptions made with the proceeds from the above transactions.

    Amendment to Line of Credit

        On June 26, 2014, we entered into an amended and restated credit agreement with GE Capital Bank, as agent, Comerica Bank, JP Morgan Chase Bank, N.A. and Wells Fargo Bank, N.A., as additional lenders. The amended and restated credit agreement provides an increase in our revolving line of credit to $120.0 million. The amount available for borrowing under the revolving line of credit is the lesser of $120.0 million and the sum of 85% of eligible accounts receivable and a portion of eligible inventory, less any outstanding letters of credit and swing loans. Additionally, our revolving line of credit permits incremental increases in the line of credit or issuance of term loans up to an aggregate amount of $25.0 million, subject to specified conditions. For a further description of our line of credit, see "Description of Indebtedness."

    Change in Tax Status

        Prior to January 23, 2014, we had elected to be taxed under the provisions of Subchapter S of the Internal Revenue Code. Therefore, we did not pay federal corporate income taxes on our taxable income. Instead, our shareholders were liable for individual federal income taxes on their respective shares of our taxable income. Distributions were made periodically to our shareholders to the extent needed to cover their income tax liability based on our taxable income. On January 23, 2014, in connection with the shares of Series A preferred stock sold to certain funds of T. Rowe Price on such date, we changed from an S Corporation to a C Corporation. Therefore, we will pay federal corporate income taxes on our taxable income for periods after such date. The historical audited financial results included elsewhere in this prospectus reflect our results as an S Corporation before January 23, 2014.

Our Corporate Information

        Diplomat Pharmacy, Inc. is a Michigan corporation, and our principal executive offices are located at 4100 S. Saginaw St., Flint, Michigan 48507. Our telephone number is (888) 720-4450. Our website address is www.diplomat.is . The reference to our website is intended to be an inactive textual reference only. The information contained on, or accessible through, our website is not part of this prospectus or the registration statement of which this prospectus forms a part, and you should not rely on this information in making a decision to invest in our common stock in this offering.

 

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The Offering

Common stock offered by us

              shares

Common stock offered by the selling shareholders

 

            shares

Common stock to be outstanding immediately after this offering

 

            shares

Overallotment Option

 

The underwriters have an option to purchase a maximum of additional shares of our common stock from the selling shareholders to cover overallotments, if any. The underwriters may exercise this option at any time within 30 days from the date of this prospectus.

Use of proceeds

 

We estimate that the net proceeds to us from this offering, after deducting the underwriting discount and estimated offering expenses, will be approximately $            million, assuming an initial public offering price of $            per share, the midpoint of the price range set forth on the cover of this prospectus.

 

We will not receive any proceeds from the sale of shares by the selling shareholders, including sales by the selling shareholders pursuant to the underwriters' overallotment option.

 

We intend to use the net proceeds from this offering to repay indebtedness and for working capital and other general corporate purposes. See "Use of Proceeds."

Controlled company

 

Upon the completion of this offering, Philip Hagerman, our Chief Executive Officer and Chairman of our Board of Directors, following the execution of a shareholders agreement with members of his immediate family, will control approximately            % of the total voting power of our outstanding common stock, (or        % of the total voting power of our common stock if the underwriters exercise their overallotment option in full). As a result, we will be considered a "controlled company" under the corporate governance listing standards of the            . As a controlled company, we will be exempt from the obligation to comply with certain            corporate governance requirements. See "Management."

Dividend policy

 

We expect to retain all future earnings, if any, for use in the operation and expansion of our business and do not anticipate paying any cash dividends in the foreseeable future. See "Dividend Policy."

 

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Risk factors

 

Investing in our common stock involves a high degree of risk. See "Risk Factors" beginning on page 17 of this prospectus for a discussion of the risks and uncertainties you should carefully consider before deciding to invest in our common stock.

            symbol

 

"                "

        The number of shares of our common stock to be outstanding after the completion of this offering is based on            shares of our common stock outstanding as of                    , 2014, and excludes:

    shares of our common stock issuable upon the exercise of options outstanding as of                        , 2014 under the Diplomat Pharmacy, Inc. 2007 Option Plan (the "2007 Option Plan"), with a weighted average exercise price of $            per share; and

    shares of our common stock reserved for future issuance under our 2014 Omnibus Incentive Plan (the "2014 Omnibus Plan" or the "omnibus plan") as of the date hereof, which will be effective prior to the completion of this offering.

        Unless otherwise indicated, the information in this prospectus assumes:

    the conversion of all shares of our Class A Voting shares into            shares of our common stock immediately prior to the completion of this offering;

    the conversion of all shares of our Class B Nonvoting shares of common stock into            shares of our common stock immediately prior to the completion of this offering;

    the conversion of all shares of our Series A convertible preferred stock into            shares of our common stock immediately prior to the completion of this offering;

    the filing of our amended and restated articles of incorporation and the adoption of our amended and restated bylaws, which will occur immediately prior to the completion of this offering;

    no exercise of outstanding stock options since                    , 2014; and

    no exercise by the underwriters of their option to purchase additional shares of our common stock from the selling shareholders to cover overallotments, if any.

        On                    , 2014, we declared a stock split effected as a stock dividend of            shares for each share of our common stock to our common shareholders of record on that date. Pursuant to the terms of our convertible preferred stock, the conversion ratio of each series of our convertible preferred stock has been proportionately adjusted to reflect this stock dividend. Accordingly, all share and per share amounts presented in this prospectus, including the consolidated financial statements and notes thereto, have been adjusted, where applicable, to reflect this stock dividend and adjustment of the preferred stock conversion ratio.

 

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Summary Consolidated Financial Data

        The following table summarizes our consolidated financial data and other data for the periods and at the dates indicated. We derived the consolidated statement of operations data for the years ended December 31, 2013, 2012 and 2011 and the consolidated balance sheet data as of December 31, 2013 and 2012 from our audited consolidated financial statements included elsewhere in this prospectus. We derived the consolidated balance sheet data as of December 31, 2011 from our audited consolidated financial statements that do not appear in this prospectus. We derived the unaudited consolidated statement of operations data for the quarter ended March 31, 2014 and 2013 and the unaudited consolidated balance sheet data as of March 31, 2014 from our unaudited consolidated financial statements included elsewhere in this prospectus. We have prepared the unaudited consolidated financial statements on the same basis as the audited consolidated financial statements and have included, in our opinion, all adjustments, consisting only of normal recurring adjustments that we consider necessary for a fair presentation of the financial information set forth in those statements.

        We derived the unaudited pro forma financial information for the year ended December 31, 2013 and the quarter ended March 31, 2014 and as of March 31, 2014 from the unaudited pro forma financial information included elsewhere in this prospectus.

        Our historical results are not necessarily indicative of the results to be expected for any future period, and the results in the quarter ended March 31, 2014 are not necessarily indicative of the results for the full year or any other period. The following information should be read together with the information under the headings "Capitalization" and "Management's Discussion and Analysis of Financial Condition and Results of Operations" and our consolidated financial statements and related notes included elsewhere in this prospectus. The unaudited pro forma consolidated financial information does not necessarily represent what our financial position, results of operations and other data would have been if the transactions had actually been completed on the dates indicated, and are not intended to project such information for any future period. See "Use of Proceeds" and "Index to the Consolidated Financial Statements—Unaudited Pro Forma Consolidated Financial Information".

 

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  For the quarter ended March 31,   For the year ended December 31,  
 
  2014
Pro-Forma(1)
  2014   2013   2013
Pro-Forma(2)
  2013(3)   2012   2011  
 
  (Dollars in thousands, except prescription, per share and per prescription data)
 
 
  (Unaudited)
   
   
   
   
 

Consolidated Statement of Operations Data

                                           

Net sales

        $ 465,677   $ 343,670         $ 1,515,139   $ 1,126,943   $ 771,962  

Cost of goods sold

          (436,168 )   (323,294 )         (1,426,112 )   (1,057,608 )   (715,448 )
                               

Gross profit

          29,509     20,376           89,027     69,335     56,514  

Selling, general, and administrative expenses

         
(23,539

)
 
(17,920

)
       
(77,944

)
 
(64,392

)
 
(47,434

)
                               

Income from operations

          5,970     2,456           11,083     4,943     9,080  

Interest expense

         
(530

)
 
(503

)
       
(1,996

)
 
(1,086

)
 
(598

)

Equity loss of non-consolidated entity

          (401 )   (102 )         (1,055 )   (267 )   (95 )

Other income

          468     64           196     337     764  
                               

Income before income taxes

          5,507     1,915           8,228     3,927     9,151  

Income tax expense(4)

          (3,817 )                      
                               

Net income

          1,690     1,915           8,228     3,927     9,151  

Net income allocable to preferred shareholders

          102                        
                               

Net income allocable to common shareholders

        $ 1,588   $ 1,915         $ 8,228   $ 3,927   $ 9,151  
                               
                               

Weighted average common shares outstanding(5):

                                           

Basic

          4,132     4,275           4,275     4,471     5,200  

Diluted

          4,435     4,293           4,364     4,602     5,311  

Net income per common share(5):

   
 
   
 
   
 
   
 
   
 
   
 
   
 
 

Basic

        $ 384.38   $ 448.04         $ 1,924.70   $ 878.35   $ 1,759.77  
                               
                               

Diluted

        $ 358.17   $ 446.17         $ 1,885.45   $ 853.50   $ 1,723.13  
                               
                               

Other Data

                                           

Adjusted EBITDA(6)

        $ 8,214   $ 4,012         $ 18,970   $ 10,852   $ 15,121  

Prescriptions dispensed(7)

         
184,000
   
172,000
         
707,000
   
669,000
   
596,000
 

Prescriptions serviced (not dispensed)(8)

          54,000     50,000           223,000     129,000     13,000  
                               

Total prescriptions

          238,000     222,000           930,000     798,000     609,000  
                               

Net sales per prescription dispensed(9)

        $ 2,531   $ 1,984         $ 2,135   $ 1,680   $ 1,295  

Gross profit per prescription dispensed(10)

        $ 153   $ 111         $ 117   $ 99   $ 94  

Net sales per prescription serviced (not dispensed)(11)

       
$

27
 
$

26
       
$

28
 
$

26
 
$

27
 

Gross profit per prescription serviced (not dispensed)(11)

        $ 27   $ 26         $ 28   $ 26   $ 27  

Adjusted EBITDA per prescription(12)

       
$

35
 
$

18
       
$

20
 
$

14
 
$

25
 

 

 
  As of March 31, 2014    
   
   
   
 
 
   
  As of December 31,  
 
  Pro-Forma
as adjusted(13)
   
   
   
 
 
  Pro-Forma(14)   Actual           
  2013   2012   2011  
 
  (Dollars in thousands)
 
 
  (Unaudited)
   
   
   
   
 

Consolidated Balance Sheet Data

                                           

Property and equipment, net

              $ 12,024         $ 12,378   $ 12,634   $ 16,930  

Total assets

                214,804           211,777     139,595     100,380  

Total debt

                63,182           88,164     63,102     12,942  

Total liabilities

                218,637           236,189     172,135     88,622  

Shareholders' (deficit) equity(15)

                (3,833 )         (24,412 )   (32,540 )   11,758  

(1)
The unaudited pro forma consolidated financial information for the quarter ended March 31, 2014 gives effect to: (A) the January and April 2014 issuance of preferred stock and the use of a portion of the proceeds from these issuances to redeem outstanding shares of common stock and common stock options, (B) our acquisition of MedPro in June 2014 and related borrowings under our line of credit, (C) our conversion from an S corporation to a C corporation on January 23, 2014, (D) the conversion of all outstanding shares of our preferred stock, Class A voting stock and Class B non-voting stock into shares of our common stock and (E) this offering and the use of proceeds therefrom, assuming in each case that such event occurred on January 1, 2013. See "Index to the Consolidated Financial Statements: Unaudited Pro Forma Combined Consolidated Financial Information".

 

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(2)
The unaudited pro forma consolidated financial information for the year ended December 31, 2013 gives effect to the transactions described in Note 1 above as well as to the December 2013 acquisition of AHF and related borrowings under our line of credit, assuming in each case that such event occurred on January 1, 2013. See "Index to the Consolidated Financial Statements: Unaudited Pro Forma Combined Consolidated Financial Information".

(3)
We acquired AHF on December 16, 2013 and its financial results have been included in our historical financial statements since that date.

(4)
Prior to January 23, 2014, we had elected to be taxed under the provisions of Subchapter S of the Internal Revenue Code. Therefore, we did not pay corporate income taxes on our taxable income. Instead, our shareholders were liable for individual income taxes on their respective shares of our taxable income. On January 23, 2014, we changed from an S Corporation to a C Corporation, and therefore we will pay corporate income taxes on our taxable income for periods after January 23, 2014.

(5)
On                        , 2014, we declared a stock split effected as a stock dividend of            shares for each share of our common stock to our common shareholders of record on that date. Pursuant to the terms of our convertible preferred stock, the conversion ratio of each series of our convertible preferred stock has been proportionately adjusted to reflect this stock dividend. Accordingly, all share and per share amounts presented in this prospectus, including the consolidated financial statements and notes thereto, have been adjusted, where applicable, to reflect this stock dividend and adjustment of the preferred stock conversion ratio.

(6)
See "Adjusted EBITDA" below for our definition of Adjusted EBITDA, why we present Adjusted EBITDA and a reconciliation of net income (loss) to Adjusted EBITDA.

(7)
Prescriptions dispensed (rounded to nearest thousand), represents actual prescriptions filled and dispensed by Diplomat.

(8)
Prescriptions serviced (not dispensed) (rounded to nearest thousand), represents prescriptions filled and dispensed by a non-Diplomat pharmacy, including retailers and health systems, for which we provide support services required to assist patients and pharmacies with the complexity of filling specialty medications, and for which we earn a fee.

(9)
Net sales per prescription dispensed represents total prescription revenue from prescriptions dispensed by Diplomat, divided by the number of prescriptions dispensed by Diplomat. Total prescription revenue from prescriptions dispensed includes all revenue collected from patients, third party payors and various patient assistance programs, as well as revenue collected from pharmaceutical manufacturers for data and other services directly tied to the actual dispensing of their drug(s).

(10)
Gross profit per prescription dispensed represents gross profit from prescriptions dispensed by Diplomat, divided by the number of prescriptions dispensed by Diplomat. Gross profit represents total prescription revenue from prescriptions dispensed less the cost of the drugs purchased.

(11)
Net sales per prescription serviced (not dispensed) represents total prescription revenue from prescriptions serviced divided by the number of prescriptions serviced for the non-Diplomat pharmacies. Gross profit per prescription serviced (not dispensed) is equal to net sales per prescription serviced because there is no Diplomat drug cost of goods sold associated with such transactions. Total prescription revenue from prescriptions serviced includes revenue collected from partner pharmacies, including retailers and health systems, for support services rendered to their patients.

(12)
Adjusted EBITDA per prescription is Adjusted EBITDA divided by the total number of prescriptions dispensed or serviced.

(13)
The unaudited pro forma consolidated financial information, as of March 31, 2014, as adjusted, gives effect to the items specified in Note 13 below and further effect to this offering and the use of proceeds therefrom, assuming in each case that such event occurred on March 31, 2014. See "Unaudited Pro Forma Combined Consolidated Financial Information".

(14)
The unaudited pro forma consolidated balance sheet information as of March 31, 2014 gives effect to: (A) the April 2014 issuance of preferred stock and the use of a portion of the proceeds from this issuance to redeem outstanding shares of common stock and common stock options, (B) our acquisition of MedPro in June 2014 and related borrowings under our line of credit, and (C) the conversion of all outstanding shares of our preferred stock, Class A voting stock and Class B non-voting stock into shares of our common stock, assuming in each case that such event occurred on March 31, 2014. See "Unaudited Pro Forma Combined Consolidated Financial Information".

(15)
In 2012, we entered into settlement agreements with current or former shareholders whereby we purchased shares of common stock formerly owned by the shareholders for consideration of $29,393 of which $2,851 was paid in cash, forgiveness of note of $196 and the remaining $26,346 was payable in full, as per the terms of an executed promissory notes, maturing 2017. This entire amount of $29,393 is reflected as a decrease to our shareholders' (deficit) equity in 2012. Also, in 2012 we had unusually high shareholder distributions of $17,281. Additionally, in January 2014, we sold to certain funds of T. Rowe Price, 351.32097 shares of Series A Preferred stock at a purchase price of $142 per share. We used $20,000 of the $50,000 investment proceeds for general corporate purposes, including fees associated with the transaction, and the remaining $30,000 was used to redeem shares of common stock and common stock options. This transaction, net of stock and stock option redemptions and transaction fees is reflected as a $19,134 increase to our shareholders' (deficit) equity in the quarter ended March 31, 2014.

Adjusted EBITDA

        We define Adjusted EBITDA as net income before interest expense, income taxes, depreciation and amortization, share-based compensation, restructuring and impairment charges, equity loss of non-consolidated entity, and certain other items that we do not consider indicative of our ongoing

 

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operating performance (which items are itemized below). Adjusted EBITDA is a non-GAAP financial measure.

        We consider Adjusted EBITDA to be a supplemental measure of our operating performance. We present Adjusted EBITDA because it is used by our Board of Directors and management to evaluate our operating performance. It is also used as a factor in determining incentive compensation, for budgetary planning and forecasting overall financial and operational expectations, for identifying underlying trends and for evaluating the effectiveness of our business strategies. Further, we believe it assists us, as well as investors, in comparing performance from period to period on a consistent basis. Adjusted EBITDA is not in accordance with, or an alternative to, measures prepared in accordance with accounting principles generally accepted in the United States ("GAAP"). In addition, this non-GAAP measure is not based on any comprehensive set of accounting rules or principles.

        As a non-GAAP measure, Adjusted EBITDA has limitations in that it does not reflect all of the amounts associated with our results of operations as determined in accordance with GAAP and therefore you should not consider Adjusted EBITDA in isolation from, or as a substitute for, financial information prepared in accordance with GAAP. You should be aware that in the future we may incur expenses that are the same as or similar to some of the adjustments in the presentation, and we do not infer that our future results will be unaffected by unusual or non-recurring items. Adjusted EBITDA does not:

    include depreciation expense from property and equipment or amortization expense from acquired intangible assets (and although they are non-cash charges, the assets being depreciated will often have to be replaced in the future);

    reflect interest expense on our debt and capital leases or interest income we earn on cash and cash equivalents;

    reflect the amounts we paid in taxes or other components of our tax provision (which reduces cash available to us);

    include the impact of share-based compensation (which is a recurring expense that will remain a key element of our long-term incentive compensation package, although we exclude it when evaluating our operating performance for a particular period); or

    include the restructuring and impairment charges, equity income or loss of our non-consolidated entity, or other matters we do not consider to be indicative of our ongoing operations.

Further, other companies in our industry may calculate Adjusted EBITDA differently than we do and these calculations may not be comparable to our Adjusted EBITDA metric. Because of these limitations, you should consider Adjusted EBITDA alongside other financial performance measures, including net income and our financial results presented in accordance with GAAP.

 

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        The table below presents a reconciliation of net income to Adjusted EBITDA for the periods indicated:

 
  For the quarter
ended March 31,
  For the year ended December 31,  
 
  2014
Pro-Forma
  2014   2013   2013
Pro-Forma
  2013   2012   2011  
 
  (Dollars in thousands)
 

Net income

        $ 1,690   $ 1,915         $ 8,228   $ 3,927   $ 9,151  

Depreciation and amortization

          1,312     913           3,934     3,842     3,079  

Interest expense

          530     503           1,996     1,086     598  

Income tax expense

          3,817                        
                               

EBITDA

          7,349     3,331           14,158     8,855     12,828  
                               

Share-based compensation expense(1)

          262     239           886     915     1,410  

Restructuring and impairment charges(2)

              50           1,033     424     429  

Equity loss of non-consolidated entity(3)

          401     102           1,055     267     95  

Severence and related fees(4)

          210               204     412     741  

Merger & acquisition related fees(5)

          106     85           677          

Philanthropy(6)

          61     22           222          

Tax credits(7)

          (469 )                 (148 )   (626 )

Other items(8)

          294     183           734     127     245  
                               

Adjusted EBITDA

        $ 8,214   $ 4,012         $ 18,970   $ 10,852   $ 15,121  
                               
                               

(1)
Share-based compensation expense relates to eligible employee stock options.

(2)
Restructuring and impairment charges reflect decreases in the fair market value of non-core property and assets, or actual losses on disposal of such assets. 2013 charges primarily relate to the $932 write-down of our former Swartz Creek, Michigan headquarters facility to its fair value, after we vacated it in favor of our present Flint, Michigan facility. 2012 charges primarily relate to our write-down of an externally purchased software package we no longer utilize, as well as sales of Company-owned vehicles. 2011 charges include expense associated with the closure of our former Cleveland, Ohio facility, the move of our Chicago, Illinois area facility, and sales of Company-owned vehicles.

(3)
Represents our share of losses recognized by our non-consolidated entity, Ageology, using the equity method of accounting. We first invested in Ageology, an anti-aging physician network dedicated to nutrition, fitness and hormones, in October 2011, in connection with its formation.

(4)
Employee severance and related fees primarily relates to severance for former management.

(5)
Fees directly related to merger and acquisition activities, including our purchases of AHF and MedPro.

(6)
Expenses from private company philanthropic activities were performed at the direction of our majority shareholder.

(7)
Represents various tax credits received from the state of Michigan for facility improvement and employee hiring initiatives.

(8)
Includes other expenses, including information technology ("IT") operating leases. These operating leases were initiated, in lieu of purchases or capital leases for a subset of our IT spend, for a short period of time in 2013 and 2014 for liquidity purposes. We have since discontinued the practice of leasing IT equipment. The cost of purchased IT equipment is reflected in depreciation and amortization.

 

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RISK FACTORS

         Investing in our common stock involves a high degree of risk. You should carefully consider the following risk factors, together with the other information in this prospectus, including "Management's Discussion and Analysis of Financial Condition and Results of Operations" and our consolidated financial statements and related notes, before deciding whether to invest in shares of our common stock. If any of the following risks actually occurs, our business, results of operations, financial condition or prospects could be materially and adversely affected. In that event, the trading price of our common stock could decline and you could lose part or all of your investment.

Risks Related to Our Business and Industry

Our failure to anticipate or appropriately adapt to changes or trends within the specialty pharmacy industry could have a significant negative impact on our ability to compete successfully.

        The specialty pharmacy industry is growing and evolving rapidly. Any significant shifts in the structure of the specialty pharmacy industry or the healthcare products and services industry in general could alter the industry dynamics and adversely affect our ability to attract or retain customers. These changes or trends could result from, among other things, a large intra- or inter-industry merger, a new entrant in the specialty pharmacy business, changes in the distribution model for specialty drugs, a slowdown in the biotechnology pharmaceutical pipeline in our areas of expertise, consolidation of shipping carriers or the necessary changes or unintended consequences of the federal Patient Protection and Affordable Care Act, as amended by the Health Care and Education Reconciliation Act of 2010 (the "Health Reform Laws") or future regulatory changes. Our failure to anticipate or appropriately adapt to any of these changes or trends, none of which are within our control, could have a significant negative impact our competitive position and materially adversely affect our business.

Significant and increasing pressure from third-party payors to limit reimbursements and the impact of high cost specialty drugs could materially adversely impact our profitability, results of operations and financial condition.

        The continued efforts of health maintenance organizations, managed care organizations, pharmacy benefit managers, government programs (such as Medicare, Medicaid and other federal and state funded programs) and other third-party payors to limit pharmacy reimbursements may adversely impact our profitability. While manufacturers have increased the price of drugs, payors have generally decreased reimbursement rates as a percentage of drug cost. We expect pricing pressures from third-party payors to continue given the high and increasing costs of specialty drugs. Given the significant competition in the industry, we have limited bargaining power to counter payor demands for reduced reimbursement rates. If a significant number of patients cannot afford to cover the portions of specialty drug costs not covered by payors as a result of limited reimbursements, and we are unable to find other sources of funding for such patients, those patients may not fill their prescriptions and our revenues and business could be adversely affected.

        In response to rising specialty drug prices, payors may also demand that we provide additional services, enhanced service levels and other cost savings to help mitigate the increase in drug costs. Additional services with minimal or no service fees would adversely impact our profitability and data-management technology and software make it challenging for us to prove specific cost savings to payors. Our inability or failure to demonstrate cost efficiencies could adversely impact a payor's willingness to engage us, exclusively or at all, as a specialty pharmacy in the face of rising drug costs.

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Changes in reimbursement rates from Medicare and Medicaid for the services we provide may cause our revenue and profitability to decline.

        For 2013, 2012 and 2011, reimbursement by federal and state programs, such as Medicare and Medicaid, represented 51%, 47% and 39% of our revenues, respectively. Reimbursement from government programs are subject to statutory and regulatory requirements, administrative rulings, interpretations of policy, implementation of reimbursement procedures, retroactive payment adjustments, governmental funding restrictions, changes to existing legislation, and the enactment of new legislation, all of which may materially affect the amount and timing of reimbursement payments to us. Changes to the way Medicare and Medicaid pay for our services may reduce our revenue and profitability on services provided to Medicare and Medicaid patients and increase our working capital requirements.

        Since its inception in 2006, Medicare Part D has resulted in increased utilization and decreased pharmacy gross margin rates as higher margin business, such as cash and state Medicaid customers, migrated to Medicare Part D coverage. Further, as a result of the Affordable Care Act and changes to Medicare Part D, such as the elimination in 2013 of the tax deductibility of the retiree drug subsidy payment received by sponsors of retiree drug plans, our pharmacy benefit manager clients could decide to discontinue providing prescription drug benefits to their Medicare-eligible members. To the extent this occurs, the adverse effects of increasing customer migration into Medicare Part D may outweigh the benefits we realize from growth of our Medicare Part D business.

If our relationship with any of our key pharmaceutical manufacturers deteriorates, or if we are unable to create new significant relationships with other pharmaceutical manufacturers, we could lose all or a significant portion of our access to existing and future specialty drugs.

        In recent years, an increasing number of pharmaceutical manufacturers have attempted to significantly limit the number of pharmacies that may dispense their drugs. Out of a total of approximately 60,000 traditional and specialty pharmacies, these manufacturers increasingly limit access to their drugs to anywhere from one to 20 specialty pharmacies, to ensure they can manage a drug's rollout, obtain real time data and confirm the unique patient population's receipt of the necessary services and support to remain adherent. There are a number of limited distribution drugs to which we do not have access. In addition to directly providing significant revenues, access to limited distribution drugs provides us with significant competitive advantages in developing relationships with payors and physicians, and our failure to continue obtaining access to new limited distribution pharmaceuticals or losing our current access could have a material and adverse impact on our business.

        We obtain access to limited distribution drugs primarily from small to mid-size biotechnology companies, many of whom are bringing their first or second drug to market. We incur significant expense and time, and opportunity cost, to educate and assist emerging small and mid-size biotechnology manufacturers in bringing these products to the marketplace without any guarantee of a successful drug launch or future sales. The failure to monetize these relationships could adversely impact our profitability and our prospects.

        We also provide a significant amount of direct and indirect services for the benefit of our pharmaceutical manufacturer customers and our patients in order to get access to specialty drugs, and our failure to provide services at optimal quality could result in losing access to existing and future drugs. In addition, we incur significant costs in providing these services and receive minimal service fees in return. If pharmaceutical manufacturers require significant additional services and products to obtain access to their drugs without a corresponding increase in service fees paid to us, our profitability could be adversely impacted.

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We have limited contractual protections with pharmaceutical manufacturers and wholesalers that supply us with most of the pharmaceuticals that we distribute.

        We dispense specialty pharmaceuticals that are supplied to us by a variety of manufacturers and wholesalers, many of which are our only source of that specific pharmaceutical. Our contracts with pharmaceutical manufacturers and wholesalers often provide us with, among other things:

    discounts on drugs we purchase to be dispensed from our specialty pharmacies;

    rebates and service fees; and

    access to limited distribution specialty pharmaceuticals.

Our contracts with pharmaceutical manufacturers and wholesalers are generally for three years and are terminable on reasonably short notice by either party before or after the contract term. In addition, our contracts with wholesalers provide for purchase money security interests in products sold. If several of these contractual relationships are terminated or materially altered by the pharmaceutical manufacturers or wholesalers or we are otherwise unable to renew these contracts or enter into similar contracts on favorable terms we could lose a major source of the pharmaceuticals we dispense.

Our revenues, profitability and cash flows may be negatively impacted if safety risks of a specialty drug are publicized or if a specialty drug is withdrawn from the market due to manufacturing or other issues.

        Physicians may significantly reduce the numbers of prescriptions for a specialty drug with safety concerns or manufacturing issues. Additionally, negative press regarding a drug with a higher safety risk profile may result in reduced global consumer demand for such drug. Decreased utilization and demand of a specialty drug we distribute could materially and adversely impact our volumes, net revenues, profitability and cash flows.

Many healthcare companies have a presence in the specialty pharmacy market, and we expect a significant increase in competition due to high growth anticipated in specialty drug spending, which could have a material and adverse impact on our business.

        There are a significant number of competitors that provide one or more comprehensive services, including distribution, with respect to specialty pharmacy drugs, some of whom have greater resources than we do, including: pharmacy benefit managers; retail pharmacy chains and independent retail pharmacies; health plans; national, regional and niche specialty pharmacies; home and specialty infusion therapy companies; physician practices and hospital systems and group purchasing organizations.

        We are currently the largest independent specialty pharmacy and the fourth largest specialty pharmacy in the U.S. The three leading specialty pharmacies, which operate as divisions within each of Express Scripts, CVS Caremark and Walgreens, have significantly greater market share, resources and purchasing power than we do, and Express Scripts and CVS Caremark also benefit from their services as pharmacy benefit managers to a number of healthcare organizations. As we increase in scale and market share, we expect more direct competition for certain drugs, payor and patient access, and services from these three companies.

        Further, a number of other traditional pharmacies with significant resources are attempting to build, acquire or partner with specialty pharmacies due to the double-digit growth anticipated in spending on specialty prescription drugs compared to low to negative growth in spending on traditional prescription drugs. There are also many smaller specialty pharmacies and other entities in the healthcare industry that provide limited specialty pharmacy services; while such entities presently compete with us to a lesser extent, they may be able to invest significant resources, through acquisition or otherwise, to compete with us on a larger scale.

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        Moreover, many of the retail pharmacies to which we provide patient management services may in the future acquire a competing specialty pharmacy business or start their own specialty pharmacy business and thereby become our competitors. In addition, many of our pharmacy benefit management customers have their own specialty pharmacy businesses, and to the extent certain of our products can be obtained internally, these customers could cease business with us. Our failure to maintain and expand relationships with payors and pharmacy benefit management companies, who can effectively determine the pharmacy source for their members, could materially and adversely affect our competitive position and prospects.

        Any increase in competition noted above could significantly increase the competition for limited distribution drugs, reduce gross profit, and otherwise materially adversely affect our business, results of operations, financial condition and prospects.

Our ability to grow our specialty pharmacy business could be limited if we do not expand the number of drugs and treatments we offer or if we lose even a small percentage of our existing patients.

        Our specialty pharmacy business focuses on complex and high cost medications that serve a relatively small patient population. Due to the limited patient populations utilizing the medications that our specialty pharmacy business handles, our future growth relies, in part, on expanding our base of drugs or penetration in certain treatment categories. Further, given our relatively high net sales and gross profit per prescription dispensed, a small percentage decrease in our patient base or reduction in demand for any reason for the medications we currently dispense could have a material adverse effect on our business.

We generate a significant amount of revenue from certain specialty drugs we dispense.

        Our three largest revenue producing specialty drugs we dispense represented 35%, 40% and 47% of our revenues in 2013, 2012 and 2011, respectively, and our ten largest revenue producing specialty drugs we dispense represented 57%, 63% and 68% of our revenues in 2013, 2012 and 2011, respectively. In addition, although the mix of our highest volume specialty drugs fluctuates historically, our two largest revenue producing specialty drugs have not changed in the past two years. In the event that the use of these specialty drugs were to decline due to clinical ineffectiveness or as a result of the introduction of more effective alternatives, and we are unable to obtain access to high growth alternative specialty drugs, our revenues would be adversely affected. Loss of revenues from our three largest revenue producing specialty drugs without access to alternative high growth specialty drugs could have a material adverse effect on our revenues in the short term.

We receive a significant amount of prescription drugs from one wholesaler and one manufacturer. The loss of either of these relationships could disrupt our business and adversely impact our revenues for one or more fiscal quarters.

        Specialty drug purchases from Amerisource Bergen Corporation ("AmerisourceBergen"), a drug wholesaler, and Celgene Corporation ("Celgene"), a pharmaceutical manufacturer, represented 58% and 19%, respectively, of cost of goods sold in 2013, and 64% and 21%, respectively, of cost of goods sold in 2012. Our contract with Amerisource Bergen has an initial term of five years expiring December 31, 2016, and can be terminated by, among other things, either party's material breach that continues for 30 days. The contract also commits us to a minimum of approximately $3.5 billion in purchase obligations over a five year period. Failure to meet this minimum would result in significant additional expense without corresponding revenues. The agreement also provides for negotiated discounts that differ by drug classification, and any permitted reclassification of products by Amerisource Bergen to a lower discount category could have an adverse impact on our gross profit. In addition, Amerisource Bergen recently entered into a long term relationship with one of the largest

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specialty pharmacy companies in the country, which could adversely impact our relationship with Amerisource Bergen.

        Our agreement with Celgene began July 1, 2011 and was renewed on July 21, 2013 until June 30, 2016, and can be terminated by either party without cause upon 90 days' prior written notice, or earlier in the event of a material breach. Unlike the specialty drugs we purchase from Amerisource Bergen, the specialty drugs we purchase from Celgene are not available from any other source.

        The loss of either of these relationships could significantly disrupt our business and adversely impact our revenues for one or more fiscal quarters. These agreements also limit our ability to distribute competing drugs, while allowing the supplier to distribute through other channels.

Consolidation in the healthcare industry could materially adversely affect our business, financial condition and results of operations.

        Many healthcare industry participants are consolidating to create integrated healthcare delivery systems with significant market power and we expect such trend to continue. As provider networks and managed care organizations consolidate, thereby decreasing the number of market participants, competition to provide products and services like ours will become more intense, and the importance of establishing relationships with key industry participants will become greater. In addition, industry participants may try to use their increased market power to negotiate price reductions for our products and services. If we are forced to reduce prices as a result of either an imbalance of market power or decreased demand for our products, revenue would be reduced and we could become significantly less profitable.

Our future success depends upon our ability to maintain and manage our rapid growth. If we are unable to manage our growth effectively, we may incur unexpected expenses and be unable to meet the demands of our customers and other constituents.

        Over the past several years our business has grown significantly, and we aim to continue to expand the scope of our operations, both organically and through strategic acquisitions. Growth in our operations will place significant demands on our management, financial and other resources. We cannot be certain that our current systems, procedures, controls, and space will adequately support expansion of our operations, and we may be unable to expand or upgrade our systems or infrastructure to accommodate future growth. Our future operating results will depend on the ability of our management and key employees to successfully maintain our independence and corporate culture, preserve the effectiveness of our high-touch patient care model, manage changing business conditions and to implement and improve our technical, administrative, financial control and reporting systems. Our inability to finance future growth, manage future expansion or hire and retain the personnel needed to manage our business successfully could have a material adverse effect on our business and prospects.

We have limited experience acquiring companies and may not be able to effectively execute our acquisition strategy or successfully integrate acquired businesses.

        We have grown organically since we were founded, but we recently completed an important acquisition in our history. In December 2013, we acquired AHF, which provides specialty drugs and infusion services for bleeding disorders, principally hemophilia. In June 2014, we acquired MedPro, a specialty pharmacy focused on specialty infusion including hemophilia and immune globulin.

        Any of the following risks associated with our recent acquisitions or future acquisitions, individually or in aggregate may have a material adverse effect on our business:

    difficulties in realizing anticipated financial or strategic benefits of such acquisition;

    diversion of capital from other uses;

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    potential dilution of shareholder ownership if stock is used as consideration for the acquisition or if an equity offering is completed in connection with the financing of the acquisition;

    the risks related to increased indebtedness;

    significant capital expenditures may be required to integrate acquisition into our operations;

    disruption of our ongoing business or the ongoing acquired business, including impairment of existing relationships with our employees, distributors, suppliers, customers or other constituents or those of the acquired companies;

    diversion of management's attention and other resources from current operations, including potential strain on financial and managerial controls and reporting systems and procedures;

    difficulty in integrating acquired operations, including restructuring and realigning activities, personnel, technologies and products, including the loss of key employees, distributors, suppliers, customers or other constituents of the acquired businesses;

    inability to realize cost savings, sales increases or other benefits that we anticipate from such acquisitions, either as to amount or in the expected time frame;

    assumption of known and unknown liabilities, some of which may be difficult or impossible to quantify; and

    non-cash impairment charges or other accounting charges relating to the acquired assets.

Our lack of historical experience with acquisitions make the foregoing risks especially applicable to us.

        We will continue to review strategic acquisition opportunities that will enhance our market position, expand our expertise and drug access, add value to our constituents and provide sufficient synergies. Strategic transactions, including the pursuit of such transactions, often require significant up-front costs and require significant resources and management attention. These costs are typically non-recurring expenses related to the assessment, due diligence, negotiation and execution of the transaction. We may also incur additional costs to retain key employees as well as transaction fees and costs related to executing our integration plans.

Our operating results may fluctuate significantly, which makes our future operating results difficult to predict and could cause our operating results to fall below expectations or our guidance.

        Our quarterly and annual operating results, and in particular our revenues, have fluctuated in the past and may fluctuate significantly in the future. These fluctuations make it difficult for us to predict our future operating results. Our operating results may fluctuate due to a variety of factors, many of which are outside of our control and are difficult to predict, including the following:

    the launch timing for specialty drugs;

    the effect of the expiration of drug patents and the introduction of generic drugs;

    the demand for the specialty drugs to which we have access;

    whether our expected distribution share of drugs that come to market is properly estimated;

    whether revenues and margins on sales of drugs that come to market are properly estimated;

    expenditures that we will or may incur to acquire or develop additional capabilities;

    the timing of increases in drug costs by the manufacturers; and

    changes in the reimbursement policies of payors.

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These factors, individually or in the aggregate, could result in large fluctuations and unpredictability in our quarterly and annual operating results. As a result, comparing our operating results on a period-to-period basis may not be meaningful. Investors should not rely on our past results as an indication of our future performance. This variability and unpredictability could also result in our failing to meet the expectations of industry or financial analysts or investors for any period.

The failure or disruption of our information technology systems, our information security systems and our infrastructure to support our business and to protect the privacy and security of sensitive customer and business information could materially adversely affect our business.

        Many aspects of our operations are dependent on our information systems and the information collected, processed, stored, and handled by these systems. Throughout our operations, we receive, retain and transmit certain highly confidential information, including personal health information and other data that our customers and other constituents provide to purchase products or services, enroll in programs or services, register on our websites, interact with our personnel or otherwise communicate with us. In addition, for these operations, we depend in part on the secure transmission of confidential information over public networks. Although we have not historically experienced a major systems failure or security breach, our information systems are subject to damage or interruption from power outages, computer and telecommunications failures, computer viruses, security breaches including credit card information breaches, vandalism, catastrophic events and human error.

        A compromise of our information security controls or those of the businesses with whom we interact, which results in confidential information being accessed, obtained, damaged, or used by unauthorized or improper persons, could harm our reputation and expose us to regulatory actions and claims from patients, physicians and other persons, any of which could adversely affect our business, financial position, and results of operations. Moreover, a data security breach could require that we expend significant resources related to our information systems and infrastructure, and could distract management and other key personnel from performing their primary operational duties. If our information systems are damaged, fail to work properly or otherwise become unavailable, we may incur substantial costs to repair or replace them, and we may experience a loss of critical information, customer disruption and interruptions or delays in our ability to perform essential functions and implement new and innovative services. In addition, compliance with changes in privacy and information security laws and standards may result in considerable expense due to increased investment in technology and the development of new operational processes. See also "—Risks Related to Federal and State Laws and Regulations—Our business operations involve the substantial receipt and use of confidential health information concerning individuals. A failure to adequately protect such information harm to our reputation and subject us to significant liabilities, each of which could have a material adverse effect on our business."

Our failure to maintain significant relationships or build new relationships with clinical experts and key thought leaders at U.S. physician groups and universities could result in a loss of existing patients, future referrals on existing and future drugs and pharmaceutical industry data and could materially adversely impact our business and prospects.

        We have developed significant relationships with clinical experts and key opinion leaders at physician groups and universities throughout the U.S. who are focused on oncology and immunology, involved in significant research projects related to specialty drugs, and who are high-volume prescribers of specialty drugs. Our failure to provide quality and timely services to such persons and their patients could impair our relationship, which could result in a loss of existing patients, future referrals on existing and future drugs and pharmaceutical industry data (including the anticipated drug pipeline) and therefore materially adversely impact our business and prospects.

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We rely heavily on a single shipping provider, and our business could be harmed if our shipping rates increase, our provider is unavailable or our provider performs poorly and we are unable to successfully replace our shipping provider.

        A substantial majority of the specialty drugs we dispense are shipped through UPS. We depend heavily on these shipping services for efficient and cost effective delivery of our products.

        The risks associated with our dependence on UPS include:

    any significant increase in shipping rates, including rate increases resulting from higher fuel prices;

    strikes or other service interruptions by UPS or by another carrier that could affect UPS;

    spoilage of high cost drugs during shipment, since our drugs often require special handling, such as refrigeration; and

    increased delivery errors by UPS, resulting in lost or stolen product.

        In the event any of the foregoing occurs and we are unable to transition efficiently and effectively to a new provider, we could incur increased costs or experience a material disruption in our operations.

A disruption in our operations could hurt our relations with our constituents and significantly impact our results of operations.

        We depend upon our contractors and vendors and on our specialty pharmacies and other facilities for the continued operation of our business. In addition, our success depends, in part, upon our telephone sales and direct marketing efforts and our ability to provide prompt, accurate and complete services to all of our constituents. Natural disasters or other catastrophic events, including hurricanes and other severe weather, terrorist attacks, power interruptions and fires could disrupt our operations and our ability to deliver our products, as well as the operations of our contractors and vendors. In the event we experience a temporary or permanent interruption in our ability to deliver our services or products, including at our corporate headquarters building, which is our primary distribution and service facility, our revenues could be reduced and our business could be materially adversely affected. In addition, any continuing disruption in either our computer system or our telephone system could adversely affect our ability to receive and process customer orders and ship products on a timely basis, and could adversely affect our relations with our customers, potentially resulting in reduction in orders or loss of customers.

We are highly dependent on our senior management and key employees. Competition for our employees is intense, and we may not be able to attract and retain the highly skilled employees that we need to support our business and our anticipated future growth.

        Our success largely depends on the skills, experience, and continued efforts of our management. In particular, our founder, Chief Executive Officer and Chairman of the Board of Directors, Philip Hagerman, has led our company throughout its 39-year history. Further, we intend to grow the business significantly, which will depend on our ability to continue to attract, motivate and retain highly qualified individuals in key management, pharmacist, nursing and similar roles. Competition for senior management and other key personnel is intense, and the pool of suitable candidates is limited. If we lose the services of one or more of our key employees, we may not be able to find a suitable replacement and our business could be materially adversely affected.

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If a customized drug provided through our compounding services leads to significant patient injury or death, we may be exposed to significant liabilities and reputational harm.

        We provide limited compounding services. Our compounding services include the preparation of personalized medications for patients. Our compounding pharmacists work with prescribers to customize a medication to meet a patient's specific health needs. While our compounding services accounted for less than 0.5% of our revenues in the year ended December 31, 2013, the risks associated with compounding could affect our overall operations. Because compounding involves the preparation of a patient-customized drug, cream, or injectable, including with respect to specific ingredients designed to increase or decrease dosage, we are exposed to a potentially large liability claim in the event that a compounded medication we prepared leads to significant patient harm or death. Such instances may also generate significant negative publicity that could harm our reputation and thereby materially affect our results of operations.

Our industry is highly litigious and future litigation or other proceedings could subject us to significant monetary damages or penalties or require us to change our business practices, which could impair our reputation and result in a material adverse effect on our business.

        We are subject to risks relating to litigation, enforcement action, regulatory proceedings, government inquiries and investigations and other similar actions in connection with our business operations, including the dispensing of pharmaceutical products by our specialty and home delivery pharmacies, claims and complaints related to the various regulations to which we are subject and services rendered in connection with our disease management activity. While we are currently not subject to any material litigation, such litigation is not unusual in our industry. Further, while certain costs are covered by insurance, we may incur uninsured costs related to the defense of such proceedings that are material to our financial performance.

        Furthermore, unexpected volatility in insurance premiums or retention requirements or claims in excess of our insurance coverage could have a material adverse effect on our business and results of operations.

Our pro forma financial information may not be representative of our future performance.

        In preparing the pro forma financial information included in this prospectus, we have made adjustments to our historical financial information based upon currently available information and upon assumptions that our management believes are reasonable in order to reflect, on a pro forma basis, the impact of some or all of the following: (i) the January and April 2014 issuance of preferred stock and the use of certain related proceeds to redeem outstanding shares of common stock and common stock options; (ii) the December 2013 acquisition of AHF and related borrowings under our line of credit; (iii) the June 2014 acquisition of MedPro and related borrowings under our line of credit; (iv) the January 23, 2014 conversion from an S corporation to a C corporation; (v) the conversion of all outstanding shares of our preferred stock, Class A voting stock and Class B non-voting stock into shares of our common stock; and (vi) this offering and the use of proceeds therefrom. The estimates and assumptions used in the calculation of the pro forma financial information in this prospectus may be materially different from our actual experience. Accordingly, the pro forma financial information included in this prospectus does not purport to indicate the results that would have actually been achieved had the above transactions been completed on the assumed date or for the periods presented, or which may be realized in the future, nor does the pro forma financial information give effect to any events other than those discussed in our unaudited pro forma financial statements and related notes.

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Any debt service obligations will reduce the funds available for other business purposes, and the terms and covenants relating to our current and future indebtedness could adversely impact our financial performance and liquidity.

        As of                  , 2014, we had $            debt outstanding under our revolving line of credit and approximately             of former stakeholder notes outstanding. As of such date, we could incur up to an additional $         million in indebtedness under our revolving line of credit. To the extent we incur significant debt in the future for acquisitions, capital expenditures, working capital or otherwise, we will be subject to risks typically associated with debt financing, such as insufficient cash flow to meet required debt service payment obligations and the inability to refinance existing indebtedness.

        In addition, our line of credit contains covenants requiring us to, among other things, provide financial and other information reporting, provide notice upon certain events and maintain cash management arrangements. These covenants also place restrictions on our ability to incur additional indebtedness, pay dividends or make other distributions, redeem or repurchase capital stock, make investments and loans and enter into certain transactions, including selling assets, engaging in mergers or acquisitions, or engaging in transactions with affiliates. The covenants under our line of credit also include a minimum fixed charge coverage ratio of not less than 1.10 to 1.0, as measured on a trailing 12-month basis, if the amount available to be drawn under our revolving line of credit is less than $20.0 million. If we fail to satisfy one or more of the covenants under our line of credit, we would be in default under the credit agreement, and may be required to repay such debt with capital from other sources or otherwise not be able to draw down against our line of credit. Under such circumstances, other sources of capital may not be available to us on reasonable terms or at all.

Our business could be harmed if the supply of any of the specialty drugs we distribute becomes scarce or is disrupted.

        Many specialty drugs are manufactured with ingredients that are susceptible to supply shortages. In particular, specialty drugs used to treat disease states such as hemophilia and autoimmune conditions can depend on supplies of donated blood, which may fluctuate. A supply shortage, or in rare cases, a complete cessation of manufacturing, of a specialty drug we distribute could materially and adversely impact our volumes, net revenues, profitability and cash flows.

If some of the drugs that we provide lose their orphan drug status, we could face increased competition.

        In order to encourage the development of drugs that might not otherwise be profitable for pharmaceutical companies, the FDA will occasionally grant certain drugs orphan status. When the FDA grants orphan status to a drug, it will not approve a second drug for the same treatment for a period of seven years unless the new drug is chemically different or clinically superior. Additionally, it is easier to gain marketing approval for an orphan drug, and there may be other financial incentives associated with the manufacturing and distribution of orphan drugs, such as extended exclusivity periods. Our business could be adversely affected by any challenges to or the expiration of a drug's orphan status. The loss of such status, the approval of new drugs notwithstanding a drug's orphan status or the development of drugs that are superior to the orphan drugs we sell could result in additional competition and adversely impact our business and results of operations.

Our business would be harmed if the pharmaceutical industry reduces research, development and marketing of specialty drugs that are compatible with the services we provide.

        Our business is highly dependent on continued research, development and marketing expenditures of pharmaceutical companies, and the ability of those companies to develop, supply and generate demand for specialty drugs that are compatible with the services we provide. Our business could be materially adversely affected if manufacturers fail to market and support existing drugs, research

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potential new treatments or to develop new drugs. Our business could also be harmed by any governmental or private initiative that would alter how drug manufacturers promote or sell products and services.

We support hospitals that participate in the 340B Drug Pricing Program ("340B Program"). Recently, the 340B Program has faced increased scrutiny from Congress, federal agencies and pharmaceutical manufacturers. In the event of future changes to the 340B Program, the revenues we derive from hospital services could be adversely impacted.

        Our hospital program supports hospitals that are 340B covered entities pursuant to which such hospitals are able to purchase certain specialty drugs from pharmaceutical manufacturers at a discount for dispensing to eligible patients. In cases where the covered entity treats an insured patient with a discounted specialty drug, the federal government or the patient's private insurance routinely reimburses the entity for the full price of the medication, and the entity is able to retain the difference between the reduced price it pays for the drug and the full amount for which it is reimbursed. In recent years, this practice and other aspects of the 340B Program have come under increased scrutiny. Also, the Health Resources and Services Administration, the agency that administers the 340B Program, is currently working to finalize proposed regulations to formalize existing 340B Program guidance. It is anticipated that the proposed regulations will be issued during summer 2014 and will address, among other things, the definition of an eligible patient and hospital eligibility criteria. Although we are not direct participants in the 340B Program and related services accounted for less than 0.1% of our revenues in the year ended December 31, 2013, our involvement with hospitals that are covered entities could cause reputational harm as a result of increased controversy regarding the 340B Program. In addition, if hospitals decrease their utilization of the 340B Program, whether due to regulatory changes or increased scrutiny, such decrease would impact revenue from this business.

We may be unable to obtain or retain the right to use or successfully integrate third-party licenses in our technology-based products, which could limit the number and type of products we are able to offer our customers.

        We rely on third-party licenses for some of the technology used in our products, and intend to continue licensing technologies from third parties. Most of these licenses can be renewed only by mutual consent and may be terminated if we breach the terms of the license and fail to cure the breach within a specified period of time. We may not be able to continue to obtain these licenses on commercially reasonable terms, or at all. Our inability to obtain or renew these licenses or find suitable alternatives could delay development of new products or prevent us from selling our existing products until suitable substitute technology can be identified, licensed, integrated or developed by us. We cannot assure you as to when we would be able to do so, if at all.

        Most of our third-party licenses are non-exclusive. Our competitors may obtain the right to use any of the technology covered by these licenses and use the technology to attempt to compete more effectively with us. In addition, our use of third-party technologies exposes us to risks associated with the integration of components from various sources into our products, such as unknown software errors or defects or unanticipated incompatibility with our systems and technologies. Further, we are dependent on our vendors' continued support of the technology we use. If a vendor chooses to discontinue or is unable to support a licensed technology, we may not be able to modify or adapt our products to fit other available technologies in a timely manner, if at all.

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Risks Related to Federal and State Laws and Regulations

We operate in a highly regulated industry and must comply with a significant number of complex and evolving requirements. Changes in state and federal government regulation could restrict our ability to conduct our business and cause us to incur significant costs.

        The marketing, sale and purchase of pharmaceuticals and medical supplies and provision of healthcare services generally are extensively regulated by federal and state governments. In addition, other aspects of our business are also subject to government regulation. The applicable regulatory framework is complex, and the laws are very broad in scope. Many of these laws remain open to interpretation and have not been addressed by substantive court decisions. Accordingly, we cannot assure you that our interpretation would prevail or that one or more government agencies will not interpret the applicable laws and regulations differently. Changes in the law or new interpretations of existing law can have a dramatic effect on our operations, our cost of doing business and the amount of reimbursement we receive from governmental third-party payors such as Medicare and Medicaid.

        Some of the healthcare laws and regulations that apply to our activities include:

    The federal "Anti-Kickback Statute" prohibits individuals and entities from knowingly and willfully paying, offering, receiving or soliciting money or anything else of value in order to induce the referral of patients or to induce a person to purchase, lease, order, arrange for, or recommend services or goods covered in whole or in part by Medicare, Medicaid, or other government healthcare programs. The Anti-Kickback Statute is an intent-based statute and the failure of a business arrangement to satisfy all elements of a safe harbor will not necessarily render the arrangement illegal, but it may subject that arrangement to increased scrutiny by enforcement authorities. Any violation of the Anti-Kickback Statute can lead to significant penalties, including criminal penalties, civil fines and exclusion from participation in Medicare and Medicaid.

    The "Stark Law" prohibits physicians from making referrals to entities with which the physicians or their immediate family members have a "financial relationship" (i.e., an ownership, investment or compensation relationship) for the furnishing of certain Designated Health Services that are reimbursable under Medicare. The Stark Law exempts certain business relationships that meet its exception requirements. However, unlike the Anti-Kickback Statute under which an activity may fall outside a safe harbor and still be lawful, a referral for Designated Health Services that does not fall within an exception is strictly prohibited by the Stark Law. A violation of the Stark Law is punishable by civil sanctions, including significant fines and exclusion from participation in Medicare and Medicaid.

    The Health Insurance Portability and Accountability Act of 1996 ("HIPAA") and the Health Information Technology for Economic and Clinical Health Act ("HITECH") provide federal privacy protections for individually identifiable health information. See "—Our business operations involve the substantial receipt and use of confidential health information concerning individuals. A failure to adequately protect any of this information could result in severe harm to our reputation and subject us to significant liabilities, each of which could have a material adverse effect on our business." below.

    Pharmacies and pharmacists must obtain state licenses to operate and dispense pharmaceuticals. If we are unable to maintain our licenses or if states place burdensome restrictions or limitations on non-resident pharmacies, this could limit or affect our ability to operate in some states.

    Federal and state investigations and enforcement actions continue to focus on the health care industry, scrutinizing a wide range of items such as joint venture arrangements, referral and billing practices, product discount arrangements, home health care services, dissemination of confidential patient information, clinical drug research trials and gifts for patients.

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Legislative or regulatory policies designed to manage healthcare costs or alter healthcare financing practices or changes to government policies in general may adversely impact our business and results of operations.

        Occasionally, certain legislative and/or regulatory proposals are made which seek to manage the cost of healthcare, including prescription drug cost. Such proposals include "single-payor" government funded healthcare, changes in reimbursement rates, restrictions on rebates and discounts, restrictions on access or therapeutic substitution, limits on more efficient delivery channels, taxes on goods and services, price controls on prescription drugs and other significant healthcare reform proposals. Further, more exacting regulatory policies and requirements specific to the specialty pharmacy sector may cause a rise in costs, labor, and time to meet all such requirements. We are unable to predict whether any such policies or proposals will be enacted, or the specific terms thereof. Certain of these policies or proposals, if enacted, could have a material adverse impact on our business.

Our business operations involve the substantial receipt and use of confidential health information concerning individuals. A failure to adequately protect any of this information could result in severe harm to our reputation and subject us to significant liabilities, each of which could have a material adverse effect on our business.

        Most of our activities involve the receipt or use of protected health information concerning individuals. We also use aggregated and de-identified data for research and analysis purposes, and in some cases, provide access to such de-identified data to pharmaceutical manufacturers, payors and third-party data aggregators and analysts. There is substantial regulation at the federal and state levels addressing the use, disclosure and security of patient identifiable health information. At the federal level, HIPAA and the regulations issued thereunder impose extensive requirements governing the transmission, use and disclosure of health information by all participants in health care delivery, including physicians, hospitals, insurers and other payors. Many of these obligations were expanded under HITECH, passed as part of the American Recovery and Reinvestment Act of 2009. Failure to comply with standards issued pursuant to federal or state statutes or regulations may result in criminal penalties and civil sanctions. In addition to regulating privacy of individual health information, HIPAA includes several anti-fraud and abuse laws, extends criminal penalties to private health care benefit programs and, in addition to Medicare and Medicaid, to other federal health care programs, and expands the Office of Inspector General's authority to exclude persons and entities from participating in the Medicare and Medicaid programs. Further, future regulations and legislation that severely restrict or prohibit our use of patient identifiable or other information could limit our ability to use information critical to the operation of our business. If we violate a patient's privacy or are found to have violated any federal or state statute or regulation with regard to confidentiality or dissemination or use of protected health information, we could be liable for significant damages, fines or penalties and suffer severe reputational harm, each of which could have a material adverse effect on our business, results of operations and prospects.

There remains considerable uncertainty as to the full impact of the Health Reform Laws on our business.

        Many of the structural changes enacted by the Health Reform Laws are being implemented in 2014, and some of the applicable regulations and sub-regulatory guidance have not yet been issued and/or finalized. Therefore, there remains considerable uncertainty as to the full impact of the Health Reform Laws on our business. While these reforms may not affect our business directly, they affect the coverage and plan designs that are or will be provided by many of our health plan customers. As a result, they could indirectly impact many of our services and business practices. We cannot predict what effect, if any, the Health Reform Laws, related regulations and sub-regulatory guidance may have on our business.

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Risks Related to this Offering and Ownership of Our Common Stock

No market currently exists for our common stock, and we cannot assure you that an active trading market will develop for our stock.

        Prior to this offering, there has been no public market for our common stock. We cannot predict the extent to which investor interest in our Company will lead to the development of a trading market on the                or otherwise, or how liquid that market might become. If an active market does not develop, you may have difficulty selling any shares of our common stock that you purchase in this offering. Additionally, because we will have a limited number of shares of common stock in our public float, the market for such shares may be illiquid, sporadic and volatile. As a result, there may be extreme fluctuations in the price of shares of our common stock. The initial public offering price for the shares of our common stock will be determined by negotiations among us, the selling shareholders and the representatives of the underwriters and may not be indicative of prices that will prevail in the open market following this offering.

Our stock price may be volatile or may decline regardless of our operating performance, and you may lose part or all of your investment.

        After this offering, the market price for our common stock is likely to be volatile, in part because our shares have not been traded publicly, and that volatility may be exacerbated by our relatively small public float. In addition, the market price of our common stock may fluctuate significantly in response to a number of factors, most of which we cannot control, including:

    market conditions or trends in the pharmaceutical industry, the healthcare industry in general, or in the economy as a whole;

    actions by existing or future competitors;

    actual or anticipated growth rates relative to our competitors;

    the public's response to press releases or other public announcements by us or third parties, including our filings with the Securities and Exchange Commission;

    economic, legal and regulatory factors unrelated to our performance;

    any future guidance we may provide to the public, any changes in such guidance or any difference between our guidance and actual results;

    changes in financial estimates or recommendations by any securities analysts who follow our common stock;

    speculation by the press or investment community regarding our business;

    litigation;

    changes in key personnel; and

    future sales of our common stock by our officers, directors and significant shareholders.

        In addition, the stock markets, including the                , have experienced extreme price and volume fluctuations that have affected and continue to affect the market prices of equity securities of many companies. In the past, shareholders have instituted securities class action litigation following periods of market volatility. If we were involved in securities litigation, we could incur substantial costs and our resources and the attention of management could be diverted from our business.

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If you purchase shares of our common stock in this offering, you will incur immediate and substantial dilution.

        The offering price of our common stock is substantially higher than the net tangible book value per share of our common stock, which on a pro forma basis was $            per share of our common stock as of                , 2014. As a result, you will incur immediate and substantial dilution in net tangible book value when you buy our common stock in this offering. This means that you will pay a higher price per share than the amount of our total tangible assets, less our total liabilities, divided by the number of shares of common stock outstanding. In addition, you may also experience additional dilution if options or other rights to purchase our common stock that are outstanding or that we may issue in the future are exercised or converted or we issue additional shares of our common stock at prices lower than our net tangible book value at such time. See "Dilution."

We do not expect to pay any cash dividends for the foreseeable future and, consequently, for those who purchase our common stock, the only opportunity to achieve a return on your investment is if the price of our common stock appreciates.

        Following this offering, we do not anticipate that we will pay any cash dividend on shares of our common stock for the foreseeable future. Any determination to pay dividends in the future will be at the discretion of our Board of Directors and will depend upon results of operations, financial performance and condition, capital requirements, contractual restrictions under our line of credit and other debt agreements (including specific restrictive covenants), restrictions imposed by applicable law and other factors that our Board of Directors deems relevant. Accordingly, if you purchase shares in this offering, realization of a gain on your investment will depend on the appreciation of the price of our common stock, which may never occur. Investors seeking cash dividends in the foreseeable future should not purchase our common stock.

Future sales of our common stock, or the perception in the public markets that these sales may occur, may depress our stock price.

        The market price of our common stock could decline significantly as a result of sales of a large number of shares of our common stock in the market after this offering. These sales, or the perception that these sales might occur, could depress the market price of our common stock. These sales, or the possibility that these sales may occur, also might make it more difficult for us to sell equity securities in the future at a time and at a price that we deem appropriate.

        In connection with this offering, we, our directors and executive officers, the selling shareholders and certain other holders of our outstanding common stock and options, representing substantially all of our common stock or options outstanding, have each agreed to certain lock-up restrictions. We and they and their permitted transferees will not be permitted to sell any shares of our common stock for 180 days, subject to extension, after the date of this prospectus, except as discussed in "Shares Eligible for Future Sale," without the prior consent of Credit Suisse Securities (USA) LLC and Morgan Stanley & Co. LLC. Credit Suisse Securities (USA) LLC and Morgan Stanley & Co. LLC may, together in their sole discretion, release all or any portion of the shares of our common stock from the restrictions in any of the lock-up agreements.

        Upon the completion of this offering, we will have            shares of common stock outstanding. Except as limited by the lock-up agreements noted above, the shares of common stock offered in this offering will be freely tradable without restriction under the Securities Act of 1933, as amended ("the Securities Act"), except for any shares of common stock that may be held or acquired by our directors, executive officers and other affiliates, the sale of which will be restricted under the Securities Act. In addition, shares subject to outstanding options under our 2007 Option Plan and shares reserved for

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future issuance under our 2014 Omnibus Plan will become eligible for sale in the public market in the future, subject to certain legal and contractual limitations.

        Moreover, pursuant to a registration rights agreement with certain funds of T. Rowe Price Associates, Inc. and Janus Capital Management, LLC, such shareholders have the right to require us to register under the Securities Act any shares of common stock they currently own. See "Certain Relationships and Related-Party Transactions—Related-Party Transactions—Registration Rights Agreement." If our existing shareholders sell substantial amounts of our common stock in the public market, or if the public perceives that such sales could occur, this could have an adverse impact on the market price of our common stock, even if there is no relationship between such sales and the performance of our business.

        In addition, in the future, we may issue shares of our common stock in connection with investments or acquisitions. The amount of shares of our common stock issued in connection with an investment or acquisition could constitute a material portion of our then-outstanding shares of our common stock, which would dilute the holdings of existing shareholders.

Certain provisions of our corporate governance documents and Michigan law could discourage, delay or prevent a merger or acquisition at a premium price.

        Our amended and restated articles of incorporation and bylaws will contain provisions that may make the acquisition of our Company more difficult without the approval of our Board of Directors. These include provisions that, among other things:

    authorize the issuance of "blank check" preferred stock, the terms of which may be established and shares of which may be issued without shareholder approval;

    provide that the number of directors shall be fixed exclusively by the Board of Directors;

    create a staggered Board of Directors, allow removal of directors for cause only, and allow a majority of directors then in office to fill any vacancies and newly created directorships on the Board of Directors;

    prohibit shareholders from calling a special meeting of shareholders;

    require supermajority votes for various shareholder approvals; and

    establish advance notice requirements for nominations for election to the Board of Directors and for proposing matters that can be acted upon at shareholders' meetings.

These provisions may frustrate or prevent any attempts by our shareholders to replace or remove our current management by making it more difficult for shareholders to replace members of the Board of Directors, which is responsible for appointing members of our management.

        In addition, the award agreements for outstanding options under our 2007 Option Plan generally provide that all unvested options will immediately vest upon a change in control. The 2014 Omnibus Plan will permit the board of directors or a committee thereof to accelerate, vest or cause the restrictions to lapse with respect to outstanding equity awards, in the event of, or immediately prior to, a change in control. Such vesting or acceleration could discourage the acquisition of our Company.

        We could also become subject to certain anti-takeover provisions under Michigan law which may discourage, delay or prevent someone from acquiring us or merging with us, whether or not an acquisition or merger is desired by or beneficial to our shareholders. If a corporation's board of directors chooses to "opt-in" to certain provisions of Michigan Law, such corporation may not, in general, engage in a business combination with any beneficial owner, directly or indirectly, of 10% of the corporation's outstanding voting shares unless the holder has held the shares for five years or more or, among other things, the board of directors has approved the business combination. Our board of

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directors has not elected to subject to corporation to this provision, but could do so in the future. Any provision of our amended and restated articles of incorporation or bylaws or Michigan law that has the effect of delaying or deterring a change in control could limit the opportunity for our shareholders to receive a premium for their shares, and could also affect the price that some investors are willing to pay for our common stock otherwise.

We expect to be a "controlled company" within the meaning of the rules of            and, as a result, we will qualify for, and currently intend to rely on, exemptions from certain corporate governance requirements. You will not have the same protections afforded to shareholders of companies that are subject to such requirements.

        After completion of this offering, members of the Hagerman family will collectively hold more than 50% of our voting stock, and Philip Hagerman will have voting authority with respect to such shares pursuant to a shareholders agreement, and therefore we expect to qualify as a "controlled company" within the meaning of the corporate governance rules of the            . Under these rules, a company of which more than 50% of the voting power is held by an individual, group or another company is a "controlled company" and may elect not to comply with certain corporate governance requirements, including:

    the requirement that a majority of the board of directors consist of independent directors;

    the requirement that we have a nominating and corporate governance committee, and if we have such committee, that it be composed entirely of independent directors; and

    the requirement that we have a compensation committee, and if we have such committee, that it be composed entirely of independent directors.

We intend to rely on some of these corporate governance exemptions at the time of the offering and may rely on some or all of such exceptions so long as we continue to qualify as a controlled company.

        Additionally, under the rules of the Exchange Act, we are only required to have one independent audit committee member upon the listing of our common stock on the            , a majority of independent audit committee members within 90 days from the date of listing and three independent audit committee members within one year from the date of listing.

        Consequently, you will not have the same protections afforded to shareholders of companies that are subject to all of the corporate governance rules and requirements of            . Our status as a controlled company could make our common stock less attractive to some investors or otherwise harm our stock price.

The Hagerman family will have the ability to control the outcome of matters submitted for shareholder approval and may have interests that differ from those of our other shareholders.

        After the completion of this offering, assuming the underwriters do not exercise their option to purchase additional shares, Philip Hagerman and members of his immediate family and various trusts affiliated with such persons (together with Philip Hagerman, the "Hagerman family") will beneficially own approximately        % of our common stock, and voting authority for all of such shares will be controlled by Philip Hagerman pursuant to a shareholders' agreement. Therefore, Philip Hagerman will continue to have effective control over the outcome of votes on all matters requiring approval by shareholders after the offering, including the election of directors, the adoption of amendments to our articles of incorporation and bylaws and approval of a sale of the Company and other significant corporate transactions, regardless of how other shareholders vote on these matters. Furthermore, the interests of the Hagerman family may be different than the interests of other shareholders. This concentration of voting power could also have the effect of delaying, deterring or preventing a change in control or other business combination that might otherwise be beneficial to our shareholders.

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Our management will have broad discretion over the use of the proceeds we receive in this offering and might not apply the proceeds in ways that increase the value of your investment.

        We estimate that net proceeds of the sale of the common stock that we are offering will be approximately $       million, $      of which will be used to satisfy certain indebtedness to current and former stakeholders and employees. Our management will have broad discretion to use the balance of our net proceeds from this offering, and you will be relying on the judgment of our management regarding the application of these proceeds. Our management might not apply the net proceeds of this offering in ways that increase the value of your investment. Our management might not be able to yield any return on the investment and use of these net proceeds. You will not have the opportunity to influence our decisions on how to use the proceeds.

Some of our operating expenses will increase significantly as a result of operating as a public company, and our management will be required to devote substantial time to complying with public company regulations.

        Since our inception, we have operated as a private company. As a public company, we will incur additional legal, accounting, compliance and other expenses that we have not incurred as a private company. After this offering, we will become obligated to file annual and quarterly information and other reports with the SEC as required by the Securities Exchange Act of 1934, as amended ("the Exchange Act"), and applicable SEC rules. In addition, we will also become subject to other reporting and corporate governance requirements, including certain requirements of the            , which will impose significant compliance obligations upon us. Among other things, we will need to institute a comprehensive compliance function related to various regulations, establish additional internal policies and controls, prepare financial statements that are compliant with SEC reporting requirements on a timely basis, draft a proxy statement and hold annual meetings of shareholders, appoint independent directors, comply with additional corporate governance matters, and utilize outside counsel and accountants in the above activities.

        The Sarbanes-Oxley Act of 2002 and the recently enacted Dodd-Frank Wall Street Reform and Consumer Protection Act, as well as rules subsequently implemented by the SEC and the             , have imposed increased regulation and disclosure obligations and have required enhanced corporate governance practices of public companies. Our efforts to comply with evolving laws, regulations and standards are likely to result in increased administrative expenses and a diversion of management's time and attention from sales-generating activities. These changes will require a significant commitment of additional resources. We may not be successful in implementing these requirements, and implementing them could materially adversely affect our business, results of operations and financial condition. If we do not implement or comply with such requirements in a timely manner, we might be subject to sanctions or investigation by regulatory authorities, such as the SEC or the             . Any such action could harm our reputation and the confidence of investors and constituents in our Company and could materially adversely affect our business and cause our stock price to decline.

If securities or industry analysts do not publish research or publish unfavorable research about our business, our stock price and trading volume could decline.

        The trading market for our common stock will be influenced by the research and reports that industry or securities analysts publish about us or our business. If one or more of these analysts ceases coverage of our Company or fails to publish reports on us regularly, we could lose visibility in the financial markets, which in turn could cause our stock price or trading volume to decline. Moreover, if our operating results do not meet the expectations of the investor community, one or more of the analysts who cover our Company may change their recommendations regarding our Company, and our stock price could decline.

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If we cannot satisfy or continue to satisfy the continued listing requirements of            , our common stock may be delisted, which would negatively impact the price of our common stock and your ability to sell our common stock.

        Our common stock has been approved for listing on the            , subject to official notice of issuance. If we are unable to comply with the continued listing requirements of            , we could be delisted from and face significant consequences, including:

    limited availability for market quotations for our common stock;

    reduced liquidity with respect to our common stock;

    limited amount of news and analyst coverage; and

    a decreased ability to issue additional securities or obtain additional financing in the future.

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SPECIAL NOTE REGARDING FORWARD-LOOKING STATEMENTS

        This prospectus includes forward-looking statements in addition to historical information. These forward-looking statements are included throughout this prospectus, including under the headings entitled "Prospectus Summary," "Risk Factors," "Management's Discussion and Analysis of Financial Condition and Results of Operations" and "Business" and relate to matters such as our industry, business strategy, goals and expectations concerning our market position, future operations, margins, profitability, capital expenditures, liquidity and capital resources and other financial and operating information. We have used the words "anticipate," "assume," "believe," "continue," "could," "estimate," "expect," "future," "intend," "may," "plan," "potential," "predict," "project," "seek," "should," "will," and similar terms and phrases, or the negative thereof, to identify forward-looking statements in this prospectus.

        The forward-looking statements contained in this prospectus are based on management's good-faith belief and reasonable judgment based on current information, and these statements are qualified by important factors, many of which are beyond our control, that could cause our actual results to differ materially from those in the forward-looking statements, including changes in global, regional or local economic, business, competitive, market, regulatory and other factors, many of which are beyond our control, including those described in "Risk Factors." Any forward-looking statement made by us in this prospectus speaks only as of the date of this prospectus. We undertake no obligation to publicly update any forward-looking statement, whether as a result of new information, future developments or otherwise, except as may be required by any applicable laws or regulations.

        The following risks related to our business, among others, could cause actual results to differ materially from those described in the forward-looking statements:

    our ability to adapt to changes or trends within the specialty pharmacy industry;

    significant and increasing pricing pressure from third-party payors;

    our relationships with key pharmaceutical manufacturers;

    bad publicity about, or market withdrawal of, specialty drugs we dispense;

    a significant increase in competition from a variety of companies in the health care industry;

    our ability to expand the number of specialty drugs we dispense and related services;

    maintaining existing patients;

    revenue concentration of the top specialty drugs we dispense;

    our ability to maintain relationships with a specified wholesaler and pharmaceutical manufacturer;

    increasing consolidation in the healthcare industry;

    managing our growth effectively;

    limited experience with acquisitions;

    fluctuations in operating results;

    failure or disruption of our information technology and security systems;

    relationships with clinical experts and key thought leaders at U.S. physician groups and universities;

    reliance on a single shipping provider;

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    dependence on our senior management and key employees;

    liability risks associated with our compounding services;

    debt service obligations;

    supply disruption of any of the specialty drugs we dispense;

    loss of orphan drug status for such specialty drugs we dispense;

    reductions of research, development and marketing of specialty drugs; and

    other factors set forth under "Risk Factors."

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USE OF PROCEEDS

        Assuming an initial public offering price of $            per share (the midpoint of the estimated price range set forth on the cover page of this prospectus), we estimate that we will receive net proceeds from this offering of approximately $             million, after deducting the underwriting discount and estimated offering expenses payable by us.

        We intend to use the net proceeds from this offering to repay indebtedness to certain current or former stakeholders and employees, which as of March 31, 2014 are as follows: (i) $13.5 million to Mark Chaffee, a former shareholder, to satisfy a promissory note bearing interest at 1.3% per annum and maturing in January 2017; (ii) $7.2 million to Jeffrey M. Rowe, an existing shareholder, executive officer and director, to satisfy a promissory note bearing interest at 1.3% per annum and maturing on July 20, 2017; (iii) $0.2 million to Deborah Ward, an existing shareholder and the sister of Philip Hagerman, our Chairman and Chief Executive Officer, to satisfy a promissory note bearing no interest and maturing on April 20, 2015; and (iv) $1.0 million to Stephen M. Lund, a former employee and option holder, to satisfy a promissory note bearing interest at the prime rate plus 1.0% and maturing on July 20, 2017. The balance of the net proceeds from this offering will be used for working capital and other general corporate purposes, which may include, a reduction of borrowings in part or in full of our revolving line of credit to the extent of any borrowings as of the completion of the offering or for opportunistic acquisitions. If we use proceeds to reduce borrowing under our line of credit, JPMorgan Chase Bank, N.A. and Wells Fargo Bank, N.A., lenders thereunder and affiliates of certain of the underwriters of this offering, will receive a portion of such repayment. See "Underwriting."

        Each $1.00 increase (decrease) in the assumed initial public offering price of $            per share would increase (decrease) the net proceeds to us from this offering by approximately $             million, after deducting the underwriting discount and estimated offering expenses payable by us.

        We will not receive any proceeds from the sale of shares of our common stock by the selling shareholders, including any shares that may be sold by the selling shareholders in connection with the exercise of the underwriters' option to purchase additional shares.

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DIVIDEND POLICY

        We do not currently anticipate paying any dividends to our shareholders in the foreseeable future. Although historically as a private company, we paid cash distributions to our shareholders we currently expect to retain all future earnings, if any, for use in the operation and expansion of our business. Any determination to pay dividends in the future will be at the discretion of our board of directors and will depend upon results of operations, financial performance and condition, capital requirements, restrictions imposed by applicable law, other factors our board of directors deems relevant and contractual restrictions under our line of credit and other debt agreements including those discussed under "Description of Indebtedness" and "Management's Discussion and Analysis of Financial Condition and Results of Operations—Liquidity and Capital Resources" in this prospectus. As a result, capital appreciation, if any, of our common stock will be your sole source of gain from your purchase of our common stock for the foreseeable future.

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CAPITALIZATION

        The following table sets forth our cash and capitalization as of March 31, 2014 on:

    an actual basis;

    a pro forma basis to give effect to (i) the April 1, 2014 issuance by us of Series A Preferred Stock to certain funds of Janus Capital Group and our use of certain proceeds therefrom to redeem shares of our common stock and common stock options, (ii) the June 27, 2014 acquisition of MedPro and related borrowings under our line of credit, and (iii) the conversion of all shares of our Series A Preferred Stock, Class A Voting Stock and Class B Nonvoting Stock into shares of our common stock immediately prior to the completion of this offering as described under the heading "Description of Capital Stock—Conversion of Issued and Outstanding Preferred Stock" as if such transactions occurred on March 31, 2014; and

    a pro forma as adjusted basis to give further effect to the sale of shares of common stock by us in this offering at an assumed initial public offering price of $            per share (the midpoint of the estimated price range set forth on the cover of this prospectus), after deducting the underwriting discount and estimated offering expenses payable by us, and the application of the net proceeds of this offering by us as described under "Use of Proceeds" as if such transactions occurred on March 31, 2014.

        The information below is illustrative only and our cash and capitalization following the completion of this offering will be based on the actual initial public offering price and other terms of this offering determined at pricing. You should read this table together with "Selected Consolidated Financial Data," "Management's Discussion and Analysis of Financial Condition and Results of Operations" and our consolidated financial statements and related notes included elsewhere in this prospectus.

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  As of March 31, 2014
(unaudited)
 
 
  Actual   Pro Forma   Pro Forma
as Adjusted(4)
 
 
  (Dollars in thousands, except par values)
 

Cash and cash equivalents

  $   $        $       
               
               

Line of credit(1)

  $ 38,747   $        $       

Mortgage debt

    2,604              

Notes payable to individuals

    21,831              
               

Series A convertible preferred stock, par value $.001 per share, 732 shares authorized, 3,531.32097 shares issued and outstanding, actual; no shares authorized, issued or outstanding, pro forma and pro forma as adjusted

   
48,627
   
   
 

Class A Voting Common Stock, par value $1.00 per share, 5,000 shares authorized, 195 shares issued and outstanding, actual; no shares authorized, issued or outstanding, pro forma and pro forma as adjusted

   
   
   
 

Class B Nonvoting Common Stock, par value $1.00 per share, 95,000 shares. authorized, 3,890.98932 shares issued and outstanding, actual; no shares authorized, issued or outstanding, pro forma and pro forma as adjusted

   
4
   
   
 

Common stock, no par value per share, no shares authorized, no shares issued and outstanding, actual;            shares authorized,            shares issued and outstanding, pro forma;            shares authorized,            shares issued and outstanding, pro forma as adjusted

   
             

Additional paid-in capital(2)

   
(54,732

)
           

Retained earnings(3)

    2,268              
               

Total stockholders' equity (deficit)

    (3,833 )            
               

Total capitalization

  $ 59,349   $        $       
               
               

(1)
As of March 31, 2014, our line of credit provided for up to $85 million in revolving loans, subject to a borrowing base determined primarily by the value of our eligible receivables and inventory. As of March 31, 2014, we had $46.3 million in undrawn availability under our line of credit. See "Description of Indebtedness." The pro forma line of credit balance reflects incremental borrowings under the line of credit to partially fund the MedPro acquisition and related transaction costs incurred after March 31, 2014. All outstanding borrowings under the line of credit are expected to be paid off with proceeds from this offering.

(2)
The pro forma additional paid-in capital balance reflects A) the 84.31703 shares of Class B Nonvoting Common Stock issued to the sellers of MedPro as partial payment of the aggregate purchase price, B) the redemption of common stock and common stock options with certain proceeds from the Janus Capital Group preferred stock investment and C) the conversion of all classes of capital stock into                        shares of common stock. The pro forma, as adjusted additional paid-in capital balance further reflects the sale of                        common shares in this offering.

(3)
The pro forma retained earnings balance reflects after-tax impact of MedPro acquisition costs expected to be incurred after March 31, 2014.

(4)
A $1.00 increase (decrease) in the assumed initial public offering price of $            (the midpoint of the price range set forth on the front cover of this prospectus) would increase (decrease) each of pro forma as adjusted cash and cash equivalents, additional paid-in capital, total shareholders' equity and total capitalization by $            assuming the number of shares offered by us set forth

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    on the front cover of this prospectus remains the same, and after deducting the underwriting discount and estimated offering expenses payable by us. An increase or decrease of              million shares in the number of shares offered by us would increase (decrease) each of pro forma as adjusted cash and cash equivalents, additional paid-in capital, total shareholders' equity and total capitalization by approximately $             million assuming the assumed initial public offering price of $            per share (the midpoint of the price range set forth on the front cover of this prospectus) remains the same, and after deducting the underwriting discount and estimated offering expenses payable by us. The pro forma as adjusted information described above is illustrative only and will adjust based on the actual initial public offering price and terms of this offering determined at pricing. See "Prospectus Summary—The Offering" for a description of exclusions and assumptions made in calculating the total outstanding shares as of such date.

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DILUTION

            If you purchase shares of our common stock in this offering, you will incur immediate and substantial dilution to the extent of the difference between the public offering price per share of our common stock and the consolidated net tangible book value per share of our common stock after giving effect to this offering.

            Consolidated net tangible book value (deficit) per share is determined by dividing (i) our total assets less our goodwill, intangible assets, deferred initial public offering costs, and total liabilities by (ii) the number of shares of our common stock outstanding. As of March 31, 2014, we had a consolidated net tangible book value (deficit) of approximately $(12.2) million, or $(2,864.09) per common share. Our pro forma consolidated net tangible book value (deficit) as of March 31, 2014 would have been $             million, or $            per share, based on the total number of shares of our common stock outstanding as of March 31, 2014, after giving effect to (i) the April 2014 issuance by us of our Series A Preferred Stock to certain funds of Janus Capital Group and our use of certain proceeds therefrom to redeem shares of our common stock and common stock options, (ii) the June 27, 2014 acquisition of MedPro and related borrowings under our line of credit, and (iii) the conversion of all shares of our Series A Preferred Stock, Class A Voting Common Stock and Class B Nonvoting Common Stock into shares of our common stock as described under the heading "Description of Capital Stock—Conversion of Issued and Outstanding Preferred Stock." Following the sale by us of the            shares of common stock in this offering at an assumed initial public offering price of $            per share (the midpoint of the estimated price range set forth on the cover page of this prospectus) after deducting the underwriting discount and estimated offering expenses payable by us and applying the net proceeds as set forth in "Use of Proceeds," our pro forma as adjusted consolidated net tangible book value at March 31, 2014 would have been $             million, or $            per share. This represents an immediate increase in pro forma as adjusted consolidated net tangible book value to existing shareholders of $            per share and an immediate dilution to new investors of $            per share. Dilution per share represents the difference between the price per share to be paid by new investors for the shares of common stock sold in this offering and the pro forma as adjusted consolidated net tangible book value per share immediately after this offering. The following table illustrates this dilution on a per share basis:

Assumed initial public offering price per share

        $           

Pro forma net tangible book value (deficit) per share as of March 31, 2014

  $                 

Increase in pro forma net tangible book value per share attributable to new investors

  $                 
             

Pro forma consolidated net tangible book value per share, as adjusted for this offering

        $           
             

Dilution in pro forma net tangible book value per share to new investors in this offering

        $           
             
             

            Each $1.00 increase (decrease) in the assumed initial public offering price of $            per share (the midpoint of the estimated price range set forth on the cover page of this prospectus), would increase (decrease) our pro forma consolidated net tangible book value, as adjusted, after this offering by $             million and the dilution per share to new investors by $            , in each case assuming the number of shares offered by us, as set forth on the cover page of this prospectus, remains the same and after deducting the underwriting discount and estimated offering expenses payable by us.

            A             million increase (decrease) in the number of shares offered by us would increase (decrease) our as pro forma consolidated net tangible book value by approximately $             million, or $            per share, assuming an initial public offering price of $            per share (the midpoint of the price range set forth on the cover page of this prospectus), and the dilution per share to new investors

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    by approximately $            , and after deducting estimated underwriting discounts and commissions and estimated offering expenses payable by us.

            If the underwriters exercise their option to purchase                        additional shares of common stock in this offering in full, our pro forma consolidated net tangible book value, as adjusted, as of March 31, 2014 would increase to approximately $             million, or $            per share, and dilution per share to new investors would increase to approximately $            , in each case assuming an initial public offering price of $            per share, which is the midpoint of the range listed on the cover page of this prospectus, and after deducting estimated underwriting discounts and commissions and estimated offering expenses payable by us.

            The following table sets forth, as of March 31, 2014, the number of shares of common stock purchased, the total consideration paid, or to be paid to us, and the average price per share paid, or to be paid, by existing shareholders and by the new investors, at an assumed initial public offering price of $            per share (the midpoint of the estimated price range set forth on the cover page of this prospectus), before deducting the underwriting discount and estimated offering expenses payable by us (dollars in thousands, except per share data):

 
   
   
  Total
Consideration
   
 
 
  Shares Purchased    
 
 
  Average Price
Per Share
 
 
  Number   Percent   Amount   Percent  

Existing shareholders(1)

                   % $                       % $           

New investors in this offering(1)

                          $    

Total

                   % $                       %      

(1)
The number of shares purchased by existing shareholders includes shares being sold by the selling shareholders in this offering. The number of shares purchased by new investors does not include shares being sold by the selling shareholders in this offering and does not include shares issued pursuant to the underwriters' option to purchase additional shares.

        Sales by the selling shareholders in this offering will reduce the number of shares held by existing shareholders to            shares, or approximately        % (             shares, or approximately        %, if the underwriters exercise their overallotment option in full), and will increase the number of shares to be purchased by new investors to             shares, or approximately        % (            shares, or approximately        %, if the underwriters exercise their overallotment option in full), of the total common stock outstanding after this offering.

        The foregoing tables exclude (i)             shares of our common stock issuable upon the exercise of options outstanding as of                , 2014 under our 2007 Option Plan, with a weighted average exercise price of $            per share, and (ii)             shares of our common stock reserved for future issuance under our 2014 Omnibus Plan as of the date hereof, which will be effective upon the completion of this offering. To the extent these options are exercised, there will be further dilution to new investors.

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SELECTED CONSOLIDATED FINANCIAL DATA

        The following table summarizes our consolidated financial data and other data for the periods and at the dates indicated. We derived the consolidated statement of operations data for the years ended December 31, 2013, 2012 and 2011 and the consolidated balance sheet data as of December 31, 2013 and 2012 from our audited consolidated financial statements included elsewhere in this prospectus. We derived the statement of operations data for the years ended December 31, 2010 and 2009 and the balance sheet data as of December 31, 2011, 2010, and 2009 from our audited consolidated financial statements that do not appear in this prospectus. We derived the unaudited consolidated statement of operations data for the quarter ended March 31, 2014 and 2013 and the unaudited consolidated balance sheet data as of March 31, 2014 from our unaudited consolidated financial statements included elsewhere in this prospectus. We have prepared the unaudited consolidated financial statements on the same basis as the audited consolidated financial statements and have included, in our opinion, all adjustments, consisting only of normal recurring adjustments that we consider necessary for a fair presentation of the financial information set forth in those statements.

        We derived the unaudited pro forma financial information for the year ended December 31, 2013 and the quarter ended March 31, 2014 and as of March 31, 2014 from the unaudited pro forma financial information included elsewhere in this prospectus.

        Our historical results are not necessarily indicative of the results to be expected for any future period, and the results in the quarter ended March 31, 2014 are not necessarily indicative of the results for the full year or any other period. The following information should be read together with the information under the headings "Capitalization" and "Management's Discussion and Analysis of Financial Condition and Results of Operations" and our consolidated financial statements and related notes included elsewhere in this prospectus. The unaudited pro forma consolidated financial information does not necessarily represent what our financial position, results of operations and other data would have been if the transactions had actually been completed on the dates indicated, and are not intended to project such information for any future period. See "Use of Proceeds" and "Index to the Consolidated Financial Statements—Unaudited Pro Forma Consolidated Financial Information."

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  For the quarter ended March 31,   For the year ended December 31,  
 
  2014
Pro-Forma(1)
  2014   2013   2013
Pro-Forma(2)
  2013(3)   2012   2011   2010   2009  
 
  (Dollars in thousands, except prescription, per share and per prescription data)
 
 
  (Unaudited)
   
   
   
   
   
   
 

Consolidated Statement of Operations Data

                                                       

Net sales

        $ 465,677   $ 343,670         $ 1,515,139   $ 1,126,943   $ 771,962   $ 577,547   $ 377,479  

Cost of goods sold

          (436,168 )   (323,294 )         (1,426,112 )   (1,057,608 )   (715,448 )   (536,451 )   (346,873 )
                                       

Gross profit

          29,509     20,376           89,027     69,335     56,514     41,096     30,606  

Selling, general, and administrative expenses

         
(23,539

)
 
(17,920

)
       
(77,944

)
 
(64,392

)
 
(47,434

)
 
(37,902

)
 
(27,114

)
                                       

Income from operations

          5,970     2,456           11,083     4,943     9,080     3,194     3,492  

Interest expense

         
(530

)
 
(503

)
       
(1,996

)
 
(1,086

)
 
(598

)
 
(454

)
 
(831

)

Equity loss of non-consolidated entity

          (401 )   (102 )         (1,055 )   (267 )   (95 )            

Other income

          468     64           196     337     764     85     156  
                                       

Income before income taxes

          5,507     1,915           8,228     3,927     9,151     2,825     2,818  

Income tax expense(4)

          (3,817 )                              
                                       

Net income

          1,690     1,915           8,228     3,927     9,151     2,825     2,818  

Net income allocable to preferred shareholders

          102                                
                                       

Net income allocable to common shareholders

        $ 1,588   $ 1,915         $ 8,228   $ 3,927   $ 9,151   $ 2,825   $ 2,818  
                                       
                                       

Weighted average common shares outstanding(5):

                                                       

Basic

          4,132     4,275           4,275     4,471     5,200     5,204     5,226  

Diluted

          4,435     4,293           4,364     4,602     5,311     5,331     5,321  

Net income per common share(5):

   
 
   
 
   
 
   
 
   
 
   
 
   
 
   
 
   
 
 

Basic

        $ 384.38   $ 448.04         $ 1,924.70   $ 878.35   $ 1,759.77   $ 542.78   $ 539.14  
                                       
                                       

Diluted

        $ 358.17   $ 446.17         $ 1,885.45   $ 853.50   $ 1,723.13   $ 529.89   $ 529.52  
                                       
                                       

Other Data

                                                       

Adjusted EBITDA(6)

        $ 8,214   $ 4,012         $ 18,970   $ 10,852   $ 15,121   $ 7,716   $ 6,059  

Prescriptions dispensed(7)

         
184,000
   
172,000
         
707,000
   
669,000
   
596,000
   
580,000
   
484,000
 

Prescriptions serviced (not dispensed)(8)

          54,000     50,000           223,000     129,000     13,000          
                                       

Total prescriptions

          238,000     222,000           930,000     798,000     609,000     580,000     484,000  
                                       

Net sales per prescription dispensed(9)

        $ 2,531   $ 1,984         $ 2,135   $ 1,680   $ 1,295   $ 996   $ 780  

Gross profit per prescription dispensed(10)

        $ 153   $ 111         $ 117   $ 99   $ 94   $ 71   $ 63  

Net sales per prescription serviced (not dispensed)(11)

       
$

27
 
$

26
       
$

28
 
$

26
 
$

27
   
   
 

Gross profit per prescription serviced (not dispensed)(11)

        $ 27   $ 26         $ 28   $ 26   $ 27          

Adjusted EBITDA per prescription(12)

       
$

35
 
$

18
       
$

20
 
$

14
 
$

25
 
$

13
 
$

13
 

 

 
  As of March 31, 2014    
   
   
   
   
   
 
 
   
  As of December 31,  
 
  Pro-Forma
as adjusted(13)
   
   
   
 
 
  Pro-Forma(14)   Actual    
  2013   2012   2011   2010   2009  
 
  (Dollars in thousands)
 
 
  (Unaudited)
   
   
   
   
   
   
 

Consolidated Balance Sheet Data

                                                       

Property and equipment, net

              $ 12,024         $ 12,378   $ 12,634   $ 16,930   $ 14,116   $ 8,196  

Total assets

                214,804           211,777     139,595     100,380     82,722     55,615  

Total debt

                63,182           88,164     63,102     12,942     19,694     9,963  

Total liabilities

                218,637           236,189     172,135     88,622     80,416     52,965  

Shareholders' (deficit) equity(15)

                (3,833 )         (24,412 )   (32,540 )   11,758     2,306     2,649  

(1)
The unaudited pro forma consolidated financial information for the quarter ended March 31, 2014 gives effect to: (A) the January and April 2014 issuance of preferred stock and the use of a portion of the proceeds from these issuances to redeem outstanding shares of common stock and common stock options, (B) our acquisition of MedPro in June 2014 and related borrowings under our line of credit, (C) our conversion from an S corporation to a C corporation on January 23, 2014, (D) the conversion of all outstanding shares of our preferred stock, Class A voting stock and Class B non-voting stock into shares of our common stock and (E) this offering and the use of proceeds therefrom, assuming in each case that such event occurred on January 1, 2013. See "Index to the Consolidated Financial Statements: Unaudited Pro Forma Combined Consolidated Financial Information".

(2)
The unaudited pro forma consolidated financial information for the year ended December 31, 2013 gives effect to the transactions described in Note 1 above as well as to the December 2013 acquisition of AHF and related borrowings under our line of credit, assuming in each case that such event occurred on January 1, 2013. Index to the Consolidated Financial Statements: Unaudited Pro Forma Combined Consolidated Financial Information".

(3)
We acquired AHF on December 16, 2013 and its financial results have been included in our historical financial statements since that date.

(4)
Prior to January 23, 2014, we had elected to be taxed under the provisions of Subchapter S of the Internal Revenue Code. Therefore, we did not pay corporate income taxes on our taxable income. Instead, our shareholders were liable for individual income taxes on their respective shares of our taxable income. On January 23, 2014, we changed from an S Corporation to a C Corporation, and therefore we will pay corporate income taxes on our taxable income for periods after January 23, 2014.

(5)
On                        , 2014, we declared a stock split effected as a stock dividend of                        shares for each share of our common stock to our common shareholders of record on that date. Pursuant to the terms of our convertible preferred stock, the conversion ratio of each series of our convertible preferred stock has been proportionately adjusted to reflect this stock dividend. Accordingly, all share and per share amounts presented in this prospectus, including the consolidated financial statements and notes thereto, have been adjusted, where applicable, to reflect this stock dividend and adjustment of the preferred stock conversion ratio.

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(6)
See "Adjusted EBITDA" below for our definition of Adjusted EBITDA, why we present Adjusted EBITDA and a reconciliation of net income (loss) to Adjusted EBITDA.

(7)
Prescriptions dispensed (rounded to nearest thousand), represents actual prescriptions filled and dispensed by Diplomat.

(8)
Prescriptions serviced (not dispensed) (rounded to nearest thousand), represents prescriptions filled and dispensed by a non-Diplomat pharmacy, including retailers and health systems, for which we provide support services required to assist patients and pharmacies with the complexity of filling specialty medications, and for which we earn a fee.

(9)
Net sales per prescription dispensed represents total prescription revenue from prescriptions dispensed by Diplomat, divided by the number of prescriptions dispensed by Diplomat. Total prescription revenue from prescriptions dispensed includes all revenue collected from patients, third party payors and various patient assistance programs, as well as revenue collected from pharmaceutical manufacturers for data and other services directly tied to the actual dispensing of their drug(s).

(10)
Gross profit per prescription dispensed represents gross profit from prescriptions dispensed by Diplomat, divided by the number of prescriptions dispensed by Diplomat. Gross profit represents total prescription revenue from prescriptions dispensed less the cost of the drugs purchased.

(11)
Net sales per prescription serviced (not dispensed) represents total prescription revenue from prescriptions serviced divided by the number of prescriptions serviced for the non-Diplomat pharmacies. Gross profit per prescription serviced (not dispensed) is equal to net sales per prescription serviced because there is no Diplomat drug cost of goods sold associated with such transactions. Total prescription revenue from prescriptions serviced includes revenue collected from partner pharmacies, including retailers and health systems, for support services rendered to their patients.

(12)
Adjusted EBITDA per prescription is Adjusted EBITDA divided by the total number of prescriptions dispensed or serviced.

(13)
The unaudited pro forma consolidated financial information, as of March 31, 2014, as adjusted, gives effect to the items specified in Note 12 below and further effect to this offering and the use of proceeds therefrom, assuming in each case that such event occurred on March 31, 2014. See "Unaudited Pro Forma Combined Consolidated Financial Information".

(14)
The unaudited pro forma consolidated balance sheet information as of March 31, 2014 gives effect to: (A) the April 2014 issuance of preferred stock and the use of a portion of the proceeds from this issuance to redeem outstanding shares of common stock and common stock options, (B) our acquisition of MedPro in June 2014 and related borrowings under our line of credit, and (C) the conversion of all outstanding shares of our preferred stock, Class A voting stock and Class B non-voting stock into shares of our common stock, assuming in each case that such event occurred on March 31, 2014. See "Unaudited Pro Forma Combined Consolidated Financial Information".

(15)
In 2012, we entered into settlement agreements with current or former shareholders whereby we purchased shares of common stock formerly owned by the stakeholders for consideration of $29,393 of which $2,851 was paid in cash, forgiveness of note of $196 and the remaining $26,346 was payable in full, as per the terms of an executed promissory notes, maturing 2017. This entire amount of $29,393 is reflected as a decrease to our shareholders' (deficit) equity in 2012. Also, in 2012 we had unusually high shareholder distributions of $17,281. Additionally, in January 2014, we sold to certain funds of T. Rowe Price, 351.32097 shares of Series A Preferred stock at a purchase price of $142 per share. We used $20,000 of the $50,000 investment proceeds for general corporate purposes, including fees associated with the transaction, and the remaining $30,000 was used to redeem shares of common stock and common stock options. This transaction, net of stock and stock option redemptions and transaction fees is reflected as a $19,134 increase to our shareholders' (deficit) equity in the quarter ended March 31, 2014.

Adjusted EBITDA

        We define Adjusted EBITDA as net income before interest expense, income taxes, depreciation and amortization, share-based compensation expense, restructuring and impairment charges, equity loss of non-consolidated entity, and certain other items that we do not consider indicative of our ongoing operating performance (which items are itemized below). Adjusted EBITDA is a non-GAAP financial measure.

        We consider Adjusted EBITDA to be a supplemental measure of our operating performance. We present Adjusted EBITDA because it is used by our Board of Directors and management to evaluate our operating performance. It is also used as a factor in determining incentive compensation, for budgetary planning and forecasting overall financial and operational expectations, for identifying underlying trends and for evaluating the effectiveness of our business strategies. Further, we believe it assists us, as well as investors, in comparing performance from period to period on a consistent basis. Adjusted EBITDA is not in accordance with, or an alternative to, measures prepared in accordance with accounting principles generally accepted in the United States ("GAAP"). In addition, this non-GAAP measure is not based on any comprehensive set of accounting rules or principles.

        As a non-GAAP measure, Adjusted EBITDA has limitations in that it does not reflect all of the amounts associated with our results of operations as determined in accordance with GAAP and therefore you should not consider Adjusted EBITDA in isolation from, or as a substitute for, financial information prepared in accordance with GAAP. You should be aware that in the future we may incur expenses that are the same as or similar to some of the adjustments in the presentation, and we do not infer that our future results will be unaffected by unusual or non-recurring items. Adjusted EBITDA does not:

    include depreciation expense from property and equipment or amortization expense from acquired intangible assets (and although they are non-cash charges, the assets being depreciated will often have to be replaced in the future);

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    reflect interest expense on our debt and capital leases or interest income we earn on cash and cash equivalents;

    reflect the amounts we paid in taxes or other components of our tax provision (which reduces cash available to us);

    include the impact of share-based compensation (which is a recurring expense that will remain a key element of our long-term incentive compensation package, although we exclude it when evaluating our operating performance for a particular period); or

    include restructuring and impairment charges, the equity income or loss of our non-consolidated entity, or other matters we do not consider to be indicative of our ongoing operations.

Further, other companies in our industry may calculate Adjusted EBITDA differently than we do and these calculations may not be comparable to our Adjusted EBITDA metric. Because of these limitations, you should consider Adjusted EBITDA alongside other financial performance measures, including net income and our financial results presented in accordance with GAAP.

        The table below presents a reconciliation of net income to Adjusted EBITDA for the periods indicated:

 
  For the quarter ended March 31,   For the year ended December 31,  
 
  2014
Pro-Forma
  2014   2013   2013
Pro-Forma
  2013   2012   2011   2010   2009  
 
  (Dollars in thousands)
 

Net income

        $ 1,690   $ 1,915         $ 8,228   $ 3,927   $ 9,151   $ 2,825   $ 2,818  

Depreciation and amortization

          1,312     913           3,934     3,842     3,079     2,157     1,858  

Interest expense

          530     503           1,996     1,086     598     454     831  

Income tax expense

          3,817                                
                                       

EBITDA

          7,349     3,331           14,158     8,855     12,828     5,436     5,506  
                                       

Share-based compensation expense(1)

          262     239           886     915     1,410     839     423  

Restructuring and impairment charges(2)

              50           1,033     424     429     1,456      

Equity loss of non-consolidated entity(3)

          401     102           1,055     267     95          

Severence and related fees(4)

          210               204     412     741          

Merger & acquisition related fees(5)

          106     85           677                  

Philanthropy(6)

          61     22           222                  

Tax credits(7)

          (469 )                 (148 )   (626 )        

Other items(8)

          294     183           734     127     245     (15 )   130  
                                       

Adjusted EBITDA

        $ 8,214   $ 4,012         $ 18,970   $ 10,852   $ 15,121   $ 7,716   $ 6,059  
                                       
                                       

(1)
Share-based compensation expense relates to eligible employee stock options.

(2)
Restructuring and impairment charges reflect decreases in the fair market value of non-core property and assets, or actual losses on disposal of such assets. 2013 charges primarily relate to, and 2010 charges solely relate to, write-downs of our former Swartz Creek, Michigan headquarters facility to its fair value, after we vacated it in favor of our present modern Flint, Michigan facility. 2012 charges primarily relate to our write-down of an externally purchased software package we no longer utilize, as well as sales of Company-owned vehicles. 2011 charges include expense associated with the closure of our former Cleveland, Ohio facility, the move of our Chicago, Illinois area facility, and sales of Company-owned vehicles.

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(3)
Represents our share of losses recognized by our non-consolidated entity, Ageology, using the equity method of accounting. We first invested in Ageology, an anti-aging physician network dedicated to nutrition, fitness and hormones, in October 2011 in connection with its formation.

(4)
Employee severance and related fees, primarily related to severance for former management.

(5)
Fees directly relates to merger and acquisition activities, including our purchase of AHF and MedPro.

(6)
Expenses from private company philanthropic activities performed at the direction of our majority shareholder.

(7)
Represents various tax credits received from the state of Michigan for facility improvement and employee hiring initiatives.

(8)
Includes other expenses, including information technology (IT) operating leases. These operating leases were initiated, in lieu of purchases or capital leases for a subset of our IT spend, for a short period of time in 2013 and 2014 for liquidity purposes. We have since discontinued the practice of leasing IT equipment. The cost of purchased IT equipment is reflected in depreciation and amortization.

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MANAGEMENT'S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS
(Dollars in thousands, except prescription, per share, per patient and per prescription data)

         You should read the following discussion and analysis of our financial condition and results of operations together with our consolidated financial statements and the related notes and other financial information included elsewhere in this prospectus. Some of the information contained in this discussion and analysis or set forth elsewhere in this prospectus, including information with respect to our plans and strategy for our business, includes forward-looking statements that involve risks and uncertainties. You should review information under the heading "Risk Factors" for a discussion of important factors that could cause actual results to differ materially from the results described in or implied by the forward-looking statements contained in the following discussion and analysis.

Overview

        We are the nation's largest independent specialty pharmacy and the fourth largest overall specialty pharmacy in the United States, and are focused on improving lives of patients with complex chronic diseases. Our patient-centric approach positions us at the center of the healthcare continuum for treatment of complex chronic diseases through partnerships with patients, payors, pharmaceutical manufacturers, and physicians. We offer a broad range of innovative solutions to address the dispensing, delivery, dosing and reimbursement of clinically intensive, high-cost specialty drugs (many of which can cost over $100,000 per patient, per year). We have expertise across a broad range of high-growth specialty therapeutic categories, including oncology, immunology, hepatitis, multiple sclerosis, HIV, and infusion therapy. We dispense to all 50 states through our advanced distribution center that enables us to ship medications nationwide as well as a centralized clinical call center that helps us deliver localized services on a national scale. We were founded in 1975 by our Chief Executive Officer, Philip Hagerman, and his father, Dale, both trained pharmacists who transformed our business from a traditional pharmacy into a leading specialty pharmacy beginning in 2005.

        Our core revenues are derived from the customized care management programs we deliver to our patients, including the dispensing of their specialty medications. Because our core therapeutic disease states generally require multi-year or life-long therapy, our singular focus on complex chronic diseases helps drive recurring revenues and sustainable growth. Our revenue growth is primarily driven by new drugs coming to market, new indications for existing drugs, volume growth with current clients, and addition of new clients. For the quarter ended March 31, 2014 and the year ended December 31, 2013, we derived 99.7% and 99.6%, respectively, of our revenue from dispensing of drugs and the data sales associated with those dispenses.

        Most of our revenue is collected through contracts with third party payors, such as managed care organizations, insurance companies, self-insured employers, pharmacy benefit managers, and Medicare and Medicaid programs. For the quarter ended March 31, 2014 and the year ended December 31, 2013, approximately 21% and 22%, respectively, of our payor-derived revenue was from commercial payors, approximately 27% and 27%, respectively, of the payor-derived revenue was from exclusive or preferred relationships with third party payors, and approximately 52% and 51%, respectively, of our payor-derived revenue was from government programs. Our exclusive or preferred relationships are with regional and mid-sized payors and independent pharmacy benefit managers, employer groups, and union groups. As of March 31, 2014 and December 31, 2013, such relationships included approximately 13 million managed lives under contract in the United States. The remainder of revenue is collected from patients, directly or on their behalf, as a result of their co-pay obligations or patient assistance programs.

        Our historical growth has largely been driven by our position as a leader in oncology and immunology therapeutic categories. For the quarter ended March 31, 2014 and the year ended

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December 31, 2013, we generated approximately 69% and 74%, respectively, of our revenues in these two categories.

        We believe that limited distribution is becoming the delivery system of choice for many specialty drug manufacturers because it facilitates high patient engagement, clinical expertise, and an elevated focus on service. Accordingly, we believe our current portfolio of over 70 limited distribution drugs, more than double our portfolio of limited distribution drugs in 2010, is important to our growth.

        We also provide specialty pharmacy support services to a national network of retailers as well as hospitals and health systems. As of June 30, 2014, we provided services to 8 retailers and independent pharmacy groups, representing approximately 4,500 stores, and 48 hospitals and health systems. For many of our retail, hospital and health system partners, we earn revenue by providing clinical and administrative support services on a fee-for-service basis to help them dispense specialty medications. Our other revenue in 2013, 2012, and 2011 was derived from these services provided to retail and hospital pharmacy partners.

        As a result of our clinical expertise and our ability to expand scope of services, demand for our services has grown, which has driven growth in revenue. Our revenue for the quarter ended March 31, 2014 was $465,677 and for the years ended December 31, 2013, 2012, and 2011 was $1,515,139, $1,126,943, and $771,962 respectively. Our net income for the quarter ended March 31, 2014 was $1,690 and for the years ended December 31, 2013, 2012, and 2011 was $8,228, $3,927, and $9,151, respectively. Our Adjusted EBITDA for the quarter ended March 31, 2014 was $8,214 and for the years ended December 31, 2013, 2012, and 2011 was $18,970, $10,852, and $15,121 respectively. See "Selected Consolidated Financial Data—Adjusted EBITDA" for our definition of Adjusted EBITDA, why we present Adjusted EBITDA, and a reconciliation of net income to Adjusted EBITDA.

Recent Developments and Other Important Factors Affecting Operating Results

    Business Acquisitions

        On December 16, 2013, we acquired all of the authorized, issued and outstanding shares of capital stock for AHF for a total acquisition price of approximately $13,449, excluding related acquisition costs of approximately $662 that were expensed. Included in the total acquisition price is $12,100 in cash and contingent consideration fair valued at $1,300 with a maximum payout of $2,000, that is based on achieving certain revenue and gross profit targets. AHF is a specialty pharmacy focused on bleeding disorders, such as hemophilia and headquartered in Enfield, Connecticut. AHF provides clotting medications, ancillaries and supplies to individuals with bleeding disorders, such as hemophilia. The acquisition of AHF will allow us to participate in AHF's direct purchase agreements with key hemophilia manufacturers, while also providing AHF access to our proprietary care management modules to better manage clinical care of the AHF patients. The results of operations for AHF are included in our consolidated financial statements from the acquisition date. See Note 2 to our consolidated financial statements for the three years ended December 31, 2013 and the quarter ended March 31, 2014 included elsewhere in this prospectus for additional information.

        On June 27, 2014, we acquired all of the outstanding stock of MedPro for $52,000 in cash, 84.31703 shares of our Class B Nonvoting Common Stock, valued at approximately $12,000, and up to $11,500 of contingent consideration (not yet fair valued) that is based on the achievement of certain revenue and gross profit targets. MedPro is a specialty pharmacy focused on specialty infusion therapies including hemophilia and immune globulin based in Raleigh, North Carolina. We acquired MedPro to expand our existing specialty infusion business and to increase our presence in the mid-Atlantic and Southern regions of the country. The results of operations for MedPro will be included in our consolidated financial statements from the acquisition date.

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    Issuances of Preferred Stock

        On January 23, 2014, we sold to certain funds of T. Rowe Price 351.32097 shares of Series A Preferred stock at a purchase price of $142 per share. We used $20,000 of the $50,000 investment proceeds for general corporate purposes, including fees associated with the transaction, and the remaining $30,000 was used to redeem shares of common stock and common stock options.

        On April 1, 2014, we sold to certain funds of Janus Capital Group 379.4267 shares of Series A Preferred stock at a purchase price of $142 per share. We used $25,200 of the $54,000 investment proceeds for general corporate purposes, including fees associated with the transaction, and the remaining $28,800 was used to redeem shares of common stock and common stock options.

    Stock Option Redemption

        In May 2014, we redeemed all of the rights to the outstanding common stock options from a former employee. The purchase price for the options was $4,000 and was paid in full at time of closing.

    Certain Operating Expenses

        We have focused on growing our business and we plan to continue to invest in building for growth. As a result, we have experienced increased operating expenses driven by the additional IT staff required to develop improved operating systems. We have also experienced increased expense related to the additional operational staff required to service our customers in a less efficient fashion while the new systems are being developed. We expect to experience operational improvements following the implementation of key system improvements over the next one to two years. Further, we expect that the size of our operational staff, as well as the size of our sales and marketing staff, will continue to grow with the business.

    Debt Reductions

        In May 2014, we paid $2,609 in full settlement of the outstanding principal and interest amount on the mortgage loan associated with our corporate headquarters and main dispensing pharmacy facility. As of                  , 2014, we had $            debt outstanding under our revolving line of credit and approximately             of former stakeholder notes outstanding. As of such date, we could incur up to an additional $         million in indebtedness under our revolving line of credit.

    Initial Public Offering

        We intend to use the net proceeds from this offering to repay indebtedness to certain former stakeholders and employees. The balance of the net proceeds from this offering will be used for working capital and other general corporate purposes, which may include a reduction of borrowings in part or in full of our revolving line of credit to the extent of any borrowing as of the completion of this offering, or for opportunistic acquisitions.

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Key Performance Metrics

        We regularly review a number of metrics, including the following key metrics, to evaluate our business, measure our performance, identify trends affecting our business, formulate financial projections, and make strategic decisions.

 
  For the quarter ended
March 31,
  For the year ended December 31,  
 
  2014   2013   2013   2012   2011  

Adjusted EBITDA

  $ 8,214   $ 4,012   $ 18,970   $ 10,852   $ 15,121  

Prescriptions dispensed

   
184,000
   
172,000
   
707,000
   
669,000
   
596,000
 

Prescriptions serviced (not dispensed)

    54,000     50,000     223,000     129,000     13,000  
                       

Total prescriptions

    238,000     222,000     930,000     798,000     609,000  
                       
                       

Net sales per prescription dispensed

  $ 2,531   $ 1,984   $ 2,135   $ 1,680   $ 1,295  

Gross profit per prescription dispensed

  $ 153   $ 111   $ 117   $ 99   $ 94  

Net sales per prescription serviced (not dispensed)

 
$

27
 
$

26
 
$

28
 
$

26
 
$

27
 

Gross profit per prescription serviced (not dispensed)

  $ 27   $ 26   $ 28   $ 26   $ 27  

Adjusted EBITDA per prescription

 
$

35
 
$

18
 
$

20
 
$

14
 
$

25
 

    Adjusted EBITDA

        See "Prospectus Summary—Summary Consolidated Financial Data—Adjusted EBITDA" for our definition of Adjusted EBITDA, why we present Adjusted EBITDA and a reconciliation of net income to Adjusted EBITDA.

    Prescription Data

        Prescriptions dispensed (rounded to nearest thousand) represents actual prescriptions filled and dispensed by Diplomat to patients, or in rare cases, to physicians. Prescriptions serviced (not dispensed) (rounded to nearest thousand), represents prescriptions filled and dispensed from a non-Diplomat pharmacy, including unaffiliated retailers and health systems, for which we provide support services required to assist these patients and pharmacies through the complexity of filling specialty medications, and for which we earn a fee.

        Our volume for the quarter ended March 31, 2014 was approximately 238,000 prescriptions dispensed or serviced, a 7% increase compared to approximately 222,000 prescriptions dispensed or serviced for the quarter ended March 31, 2013. The volume increase was due to a mix of new drugs to market, new indication approvals for existing drugs, growth in patients from current payors and physician practices, and the addition of patients from new payors and physician practices.

        Our volume for the year ended December 31, 2013 was approximately 930,000 prescriptions dispensed or serviced, a 17% increase compared to approximately 798,000 prescriptions for the year ended December 31, 2012. The volume increase was due to a mix of patient growth from current payors and physician practices, the addition of patients from new payors and physician practices, new drugs to market, and the approval of new indications for existing drugs.

        Our volume for the year ended December 31, 2012 was approximately 798,000 prescriptions dispensed or serviced, a 31% increase compared to approximately 609,000 prescriptions for the year ended December 31, 2011. The volume increase was due to a mix of patients from new payors and physician practices, patient growth from current payors and physician practices, new drugs to market, and the approval of new indications for existing drugs.

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    Other Metrics

        Other key metrics used in analyzing our business are net sales per prescription dispensed, gross profit per prescription dispensed, net sales per prescription serviced (not dispensed), gross profit per prescription serviced (not dispensed), and adjusted EBITDA per prescription.

        Net sales per prescription dispensed represents total prescription revenue from prescriptions dispensed by Diplomat divided by the number of prescriptions dispensed by Diplomat. Gross profit per prescription dispensed represents gross profit from prescriptions dispensed by Diplomat divided by the number of prescriptions dispensed by Diplomat. Total prescription revenue from prescriptions dispensed includes all revenue collected from patients, third party payors, and various patient assistance programs, as well as revenue collected from pharmaceutical manufacturers for data and other services directly tied to the actual dispensing of their drug(s). Gross profit represents total prescription revenue from prescriptions dispensed less the cost of the drugs purchased.

        Net sales per prescription serviced (not dispensed) represents total prescription revenue from prescriptions serviced divided by the number of prescriptions serviced for the non-Diplomat pharmacies. Gross profit per prescription serviced (not dispensed) is equal to net sales per prescription serviced because there is no cost of drug associated with such transactions. Total prescription revenue from prescriptions serviced includes revenue collected from partner pharmacies, including retailers and health systems, for support services rendered to their patients.

        Adjusted EBITDA per prescription is Adjusted EBITDA divided by the total number of prescriptions dispensed or serviced.

Components of Results of Operations

    Net Sales

        Net sales are recognized at the time of service completion. Revenue for a dispensed prescription is recognized at the time of shipment or pick-up of the prescription. We can earn revenue from multiple sources for any one claim, including the primary insurance plan, the secondary insurance plan, the tertiary insurance plan, patient co-pay, and patient assistance programs. Prescription revenue also includes revenue from pharmaceutical manufacturers and other outside companies for data reporting or additional services rendered for dispensed prescriptions. Service revenue is primarily derived from fees earned by us from retail and hospital pharmacies for patient support that is required for those non-Diplomat pharmacies to dispense specialty drugs to patients. The retail and hospital pharmacies dispense the drug, and pay us for clinically and administratively servicing their patients.

    Cost of Goods Sold

        Cost of goods sold represents the purchase price of the drugs that we ultimately dispense. These drugs are purchased directly from the manufacturer or from an authorized wholesaler and the purchase price is negotiated with the selling entity. In general, period over period percentage changes in cost of goods sold will move directionally with period over period percentage changes in net sales for prescription dispensing transactions. This is due to the mathematical relationship between average wholesale price ("AWP") and wholesale acquisition cost ("WAC"), and our contractual relationships to purchase at a discount off of WAC and receive reimbursement at a discount off of AWP. The discounts off of AWP and WAC that we receive vary significantly by drug and by contract.

    Selling, General, and Administrative Expenses

        Our operating expenses primarily consist of employee and associated costs, as well as outbound prescription drug transportation and logistics costs. Our employee and associated costs relate to both our patient-facing personnel and our non-patient facing support and administrative personnel. Other

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operating expenses consist of occupancy and other indirect costs, insurance costs, professional fees, and other general overhead expenses. We expect that general and administrative expenses will increase as we incur additional expenses related to being a public company, including professional fees and share-based compensation expenses related to the equity incentive plan established in connection with this offering.

    Other Income (Expense)

        Other income (expense) primarily consists of interest expense associated with our debt, equity income or losses associated with our 25% owned non-consolidated entity, tax credits and income from property rentals.

    Income Tax Expenses

        On January 23, 2014, we changed from an S Corporation to a C Corporation. The historical audited financial results included elsewhere in this prospectus reflect our results as an S Corporation before this date. The pro forma financial information included elsewhere in this prospectus have been adjusted to show results as if we had been a C Corporation for specified periods.

Results of Operations

        The following table provides consolidated statements of operations data for each of the periods presented.

 
  For the quarter ended March 31,   For the year ended December 31,  
 
  2014   2013   2013   2012   2011  
 
  (Unaudited)
   
   
   
 

Consolidated Statement of Operations Data

                               

Net sales

  $ 465,677   $ 343,670   $ 1,515,139   $ 1,126,943   $ 771,962  

Cost of goods sold

    (436,168 )   (323,294 )   (1,426,112 )   (1,057,608 )   (715,448 )
                       

Gross profit

    29,509     20,376     89,027     69,335     56,514  

Selling, general, and administrative expenses

   
(23,539

)
 
(17,920

)
 
(77,944

)
 
(64,392

)
 
(47,434

)
                       

Income from operations

    5,970     2,456     11,083     4,943     9,080  

Interest expense

   
(530

)
 
(503

)
 
(1,996

)
 
(1,086

)
 
(598

)

Equity loss of non-consolidated entity

    (401 )   (102 )   (1,055 )   (267 )   (95 )

Other income

    468     64     196     337     764  
                       

Income before income taxes

    5,507     1,915     8,228     3,927     9,151  

Income tax expense

    (3,817 )                
                       

Net income

  $ 1,690   $ 1,915   $ 8,228   $ 3,927   $ 9,151  
                       
                       

Comparison of Quarter Ended March 31, 2014 and March 31, 2013

    Net Sales

        Our net sales for the quarter ended March 31, 2014 was $465,677, a $122,007 increase, or 36%, compared to $343,670 for the quarter ended March 31, 2013. The increase was the result of approximately $47,000 of additional revenue from drugs that were new to the market or newly dispensed by us. Prescription volume growth of existing drugs accounted for approximately $26,000 of the increased revenue and was the result of new indications, increased penetration through physician's offices, growth with existing payors, and the addition of patients from new payors and physician

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practices. The acquisition of AHF contributed approximately $8,000 and the remaining increase is attributable to manufacturer price increases and payor mix.

    Cost of Goods Sold

        Our cost of goods sold for the quarter ended March 31, 2014 was $436,168, a $112,874 increase, or 35%, compared to $323,294 for the quarter ended March 31, 2013. The increase was primarily the result of the same factors that drove the increase in our net sales over the same time period.

    Selling, General, and Administrative Expense

        Our selling, general, and administrative expense for the quarter ended March 31, 2014 was $23,539, a $5,619 increase, or 31%, compared to $17,920 for the quarter ended March 31, 2013. Selling, general, and administrative costs in the 2014 period were higher than in the prior period primarily due to variable costs related to increased net sales and prescription volume during the 2014 period. Total employee cost increased by $3,295, or 28%, and was primarily attributable to two factors. First, the 7% prescription volume increase drove the need to hire additional employees. Second, our ongoing efforts to improve IT systems to support current and future growth required additional indirect labor to develop our key systems. Similarly, our logistics expense increased by $501, or 22%, as a result of the additional prescription volume dispensed, as well as increased supplier costs and mix of drugs being shipped to patients. The remaining increase was in all other selling, general, and administrative expenses to support our growth including consulting fees, utilities, travel, supplies, and other miscellaneous expenses. These increases also include $1,095 of AHF expenses related to its pharmacies and support staff.

    Other Income (Expense)

        Our other income (expense) for the quarter ended March 31, 2014 net was $365, compared to $541 for the quarter ended March 31, 2013. The decrease was primarily attributed to a $469 state tax credit, partially offset by a $299 greater equity loss on our non-consolidated entity in the quarter ended March 31, 2014.

    Income Tax Expense

        On January 23, 2014, we changed our income tax status from an S corporation to a C corporation and, as such, will now bear income taxes which had previously been borne by our shareholders. Our income tax expense for the quarter ended March 31, 2014 was $3,817, versus $0 for the quarter ended March 31, 2013. For additional information on our conversion from an S corporation to a C corporation, reference Note 1 and Note 10 in the quarterly financial statements included elsewhere in this prospectus.

Comparison of Years Ended December 31, 2013 and December 31, 2012

    Net Sales

        Our net sales for the year ended December 31, 2013 was $1,515,139, a $388,196 increase, or 34%, compared to $1,126,943 for the year ended December 31, 2012. Prescription volume growth on existing drugs accounted for approximately $178,000 of the increased revenue and was driven by new indications, increased penetration through physician's offices, growth with existing payors, and the addition of patients from new payors and physician practices. The increase was also the result of approximately $62,000 of additional revenue from drugs that were new to the market or newly dispensed by us. The remaining increase is attributable to manufacturer price increases and payor mix.

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    Cost of Goods Sold

        Our cost of goods sold for the year ended December 31, 2013 was $1,426,112, a $368,504 increase, or 35%, compared to $1,057,608 for the year ended December 31, 2012. The increase was primarily the result of the same factors that drove the increase in our net sales over the same time period.

    Selling, General, and Administrative Expense

        Our selling, general, and administrative expense for the year ended December 31, 2013 was $77,944, a $13,552 increase, or 21%, compared to $64,392 for the year ended December 31, 2012. Selling, general, and administrative costs in 2013 were higher than in the prior year primarily due to variable costs related to increased net sales and prescription volume during 2012. This increased volume drove the need for additional employees and the overhead required to support the growth.

        The increased employee expense of $6,938, or 18%, was predominantly the result of the additional headcount required to manage the 17% prescription volume increase. Our ongoing efforts to improve IT systems to support current and future growth required additional indirect labor to develop our key systems. The increase in freight expense of $1,920, or 23%, was the result of the increased volume of prescriptions being shipped to patients, as well as price and mix changes related to the type of drugs being shipped to patients. Impairment and loss on our non-consolidated equity investment accounted for $1,397 of additional increased expense in 2013. The remaining increase in selling, general, and administrative expenses included consulting fees, utilities, and other miscellaneous operating expenses.

    Other Income (Expense)

        Our interest expense for the year ended December 31, 2013 was $1,996, compared to $1,086 for the year ended December 31, 2012. The additional interest expense was the result of growth and the overall need to draw on the line of credit periodically to manage working capital. Our equity loss of our non-consolidated entity for the year ended December 31, 2013 was $1,055, compared to $267 for the year ended December 31, 2012, an increase attributed to the start-up company's escalation in ramping up their operations. Our other income for the year ended December 31, 2013 was $196, compared to $337 for the year ended December 31, 2012. Other income is derived from state tax credits and the rental of property which we currently own.

Comparison of years ended December 31, 2012 and December 31, 2011

    Net Sales

        Our net sales for the year ended December 31, 2012 was $1,126,943, a $354,981 increase, or 46%, compared to $771,962 for the year ended December 31, 2011. Prescription volume growth on existing drugs accounted for approximately $236,000 of the increased revenue and was the result of new indications, increased penetration through physician's offices, growth with existing payors, and the addition of patients from new payors and physician practices. The increase was also the result of approximately $30,000 of additional revenue from drugs that were new to the market or newly dispensed by us. The remaining increase is attributable to manufacturer price increases. These revenue increases were partially offset by payor mix changes. These were also the reasons for the decline in our net income over the same periods.

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    Cost of Goods Sold

        Our cost of goods sold for the year ended December 31, 2012 was $1,057,608, a $342,160 increase, or 48%, compared to $715,448 for the year ended December 31, 2011. The increase was primarily the result of the same factors that drove the increase in our net sales over the same period.

    Selling, General, and Administrative Expense

        Our selling, general, and administrative expense for the year ended December 31, 2012 was $64,392, a $16,958 increase, or 36%, compared to $47,434 for the year ended December 31, 2011. Selling, general, and administrative costs in 2012 were higher than in the prior year primarily due to variable costs related to increased net sales and prescription volume during 2011. This increased volume drove the need for additional employees and the overhead required to support the growth.

        The increased employee expense of $12,073, or 44%, was predominantly the result of the additional headcount required to manage the 31% prescription volume increase. Also, in 2012 as we worked to build and modify our core IT systems used to run the business, it had a two-fold impact on increasing headcount. First, much of the growth required us to manually manage processes while our systems were being substantially modified. Second, there were many additional heads associated with the IT staff needed to develop these same systems. Freight expense increased $2,655, or 48%, was the result of by the increased volume of prescriptions being shipped to patients, including price and mix changes based on the drugs being shipped to these patients. The remaining increase in selling, general, and administrative expenses included consulting fees, utilities, and other miscellaneous operating expenses.

    Other Income (Expense)

        Our interest expense for the year ended December 31, 2012 was $1,086, compared to $598 for the year ended December 31, 2011. The additional interest expense was driven by our growth and need to draw more on our line of credit to manage working capital. Our equity loss of our non-consolidated entity for the year ended December 31, 2012 was $267, compared to $95 for the year ended December 31, 2011. Our other income for the year ended December 31, 2012 was $337, compared to $764 for the year ended December 31, 2011. Other income is derived from state tax credits and the rental of property which we currently own.

Liquidity and Capital Resources

        Our primary uses of cash include funding our working capital, acquiring and maintaining property and equipment and internal use software, business acquisitions, stock and stock option redemptions, and debt service. We have funded our recent cash requirements primarily from our operating activities as driven mainly by our revenue growth, borrowings under our revolving line of credit, and capital stock issuances. As of December 31, 2013, we had $9,109 of cash and cash equivalents. We used all available cash as of March 31, 2014 to reduce the outstanding balance on our revolving line of credit. On June 26, 2014, we increased our maximum borrowing availability under our revolving line of credit to $120,000 from $85,000. We believe our cash and cash equivalents, revolving line of credit, cash flow from operations, and net proceeds from this offering will be sufficient to meet our working capital and capital expenditure requirements for at least 12 months. Generally, our need to access the capital markets has been limited to refinancing our line of credit at or prior to maturity. From time to time as

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a public company, we also may access the equity or debt markets to raise additional funds on a strategic basis, including for acquisitions.

 
  Quarter ended
March 31,
  Year ended December 31,  
 
  2014   2013   2013   2012   2011  

Net cash (used in) provided by operating activities

  $ (925 ) $ 8,789   $ 6,227   $ 5,006   $ 12,539  

Net cash used in investing activities

    (1,829 )   (1,710 )   (20,292 )   (4,849 )   (6,747 )

Net cash (used in) provided by financing activities

    (6,355 )   (7,079 )   23,174     (157 )   (7,861 )
                       

Net (decrease) increase in cash and equivalents

  $ (9,109 ) $   $ 9,109   $   $ (2,069 )
                       
                       

Net Cash Provided by (Used in) Operating Activities .

        Cash (used in) provided by operating activities consists of significant components of the statement of operations adjusted for changes in various working capital items including accounts receivable, inventories, prepaid expenses, accounts payable and other accrued expenses.

        The decrease of $9,714 in cash available from operating activities during the quarter ended March 31, 2014 compared to the quarter ended March 31, 2013, was primarily due to a $12,445 decrease in working capital items, primarily accounts payable, as a result of the timing of key vendor payments. We also experienced a $225 decrease in net income in the 2014 period which is described above. This decrease was primarily offset by an increase of $2,492 deferred income tax expense in non-cash expenses.

        The $1,221 increase in cash provided by operating activities during the year ended December 31, 2013, compared to for the year ended December 31, 2012 is primarily attributable to a $4,301 increase in net income and a $1,673 increase in non-cash expenses offset by a $4,753 change in our working capital. The increase in non-cash expenses was mostly attributable to a $932 impairment charge on write-down of our former Swartz Creek, MI headquarters facility. The most significant change in working capital relates to our accounts receivable increasing $5,941 more in 2013 than in 2012, which was primarily the result of an increase in billing and revenue in the month of December 2013 as compared to December 31, 2012.

        The $7,533 decrease in cash provided by operating activities during the year ended December 31, 2012 compared to the year ended December 31, 2011 is primarily attributable to a $5,224 decrease in net income and a $2,557 change in our working capital. Certain working capital items, including accounts receivable, inventories, and accounts payable, changed significantly in 2012 due to increased requirements to support the growth of our business. These three items accounted for a net decrease in cash of $5,974 in 2012 compared to a decrease of $2,335 in 2011.

Net Cash Used in Investing Activities .

        Our primary investing activities have consisted of the acquisition of an infusion specialty pharmacy (AHF), non-consolidated entity investment, capital expenditures to purchase computer equipment, software, furniture and fixtures, labor expenditures associated with capitalized software for internal use, as well as building improvements to support the expansion of our infrastructure and workforce. As our business grows, we expect our capital expenditures and our investment activity to continue to increase.

        The $119 increase in cash used in investing activities during the quarter ended March 31, 2014 compared to the quarter ended March 31, 2013 was primarily related to a $444 increase in expenditures for software for internal use and property and equipment as we continue to expand our information systems. Additionally, we invested $750 more in our non-consolidated entity in the 2013 period and we loaned $431 more to our non-consolidated entity in the 2014 period than we did in the 2013 period.

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        The $15,443 increase in cash used in investing activities for the year ended December 31, 2013 compared to the year ended December 31, 2012 was primarily related to $10,232 of cash paid for the acquisition of AHF, net of cash acquired. We also increased spend by $1,313 for expenditures related to software for internal use and property and equipment as part of our ongoing effort to improve our information systems. The remaining increase was the result of a $1,000 higher investment in non-consolidated entity and $2,898 increase related to issuance of a related party notes receivable to our non-consolidated entity.

        The $1,898 decrease in cash used in investing activities for the year ended December 31, 2012 compared to the year ended December 31, 2011 was primarily the result of less expenditures for software for internal use and property and equipment.

Net Cash Provided by (Used in) Financing Activities .

        The $724 decrease in cash used in financing activities during the quarter ended March 31, 2014 compared to the quarter ended March 31, 2013 is primarily due to $18,627 of proceeds received in our January 2014 sale of Class A Preferred Stock to certain funds of T. Rowe Price, net of the redemption of certain outstanding common stock and common stock options, offset by the pay down of our revolving line of credit of $23,875. Also, during the 2014 period, we paid down $6,081 less of our long-term debt than we did during the 2013 period.

        The $23,331 increase in cash available from financing activities during the year ended December 31, 2013 compared to the year ended December 31, 2012 is primarily related to a $12,212 increase in borrowing under our line of credit, which in part facilitated the $9,910 payments on our outstanding notes payable and the $496 larger payment in 2013 on our long term mortgage debt. Also, during 2012, there were shareholder distributions of $10,868, much larger than those in 2013, and stock and stock option redemption payments of $3,894, which did not repeat in 2013.

        The $7,704 decrease in cash used in financing activities during the year ended December 31, 2012 compared to the year ended December 31, 2011 is primarily attributable to $29,890 increased net proceeds from our line of credit to support $9,759 more shareholder distributions in 2012, and $3,894 of stock and stock option redemptions in 2012. Additionally, we made $7,167 more long-term debt payments in 2012 than we did in 2011.

    Revolving Line of Credit

        On June 26, 2014, we entered into an amended and restated credit agreement with GE Capital Bank, as agent, Comerica Bank, JPMorgan Chase Bank, N.A. and Wells Fargo Bank, N.A., as additional lenders. The amount available for borrowing under the revolving line of credit is the lesser of $120,000 and the sum of 85% of eligible accounts receivable and a portion of eligible inventory, less any outstanding letters of credit and swing loans. Additionally, the revolving line of credit permits incremental increases in the line of credit or issuance of term loans up to an aggregate amount of $25,000, subject to specified conditions. Interest on our line of credit is charged at a rate equal to either (a) the base rate, which equates to the rate last quoted by The Wall Street Journal as the "Prime Rate" or as further defined in the agreement in the absence of such, plus an applicable margin (the "Base Rate"); or (b) LIBOR, as defined by the agreement, plus an applicable margin. The applicable margin on the Base Rate borrowings, during all periods presented, is 0.75% and on LIBOR rate borrowings is 1.75%. The effective interest rate for base rate borrowing at March 31, 2014 and 2013 was 4.00%. The effective rate on LIBOR rate borrowing at March 31, 2014 and 2013 was 1.903% and 1.954%, respectively. At March 31, 2014, we had base rate borrowings outstanding in the amount of $13,747 and LIBOR rate borrowings outstanding in the amount of $25,000.

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        The line of credit requires us to comply with certain covenant requirements and to certify compliance on a monthly basis. We have been in compliance every period since the inception of the agreement, including on March 31, 2014. The table below sets forth the amount borrowed, and remaining amount available to be borrowed, based on eligible accounts receivable and inventory, as of the specified dates.

 
  Quarter ended
March 31,
  Year ended
December 31,
 
 
  2014   2013   2013   2012  

Maximum borrowing during period

  $ 62,622   $ 50,855   $ 68,970   $ 44,305  

Period end balance

  $ 38,747   $ 27,129   $ 62,622   $ 27,020  

Period end availability

  $ 46,253   $ 32,871   $ 22,378   $ 32,980  

        Proceeds from the Janus Capital Group investment in April 2014 were used to pay down the outstanding balance on our line of credit. We intend to use the net proceeds from this offering for working capital and other general corporate purposes, which may include a reduction of borrowings, in part or in full, of our revolving line of credit to the extent of any borrowing as of the completion of this offering, or for opportunistic acquisitions.

Contractual Obligations

        Our principal debt commitments consist of our revolving line of credit, a mortgage for our corporate headquarters, and various notes payable to prior and current stakeholders. The following table summarizes our scheduled debt and other contractual obligations at December 31, 2013.

 
  Year Ending December 31,  
 
  2014   2015 - 2016   2017 - 2018   Thereafter   Total  

Revolving line of credit

  $ 62,622   $   $   $   $ 62,622  

Mortgage loan

    2,728                 2,728  

Stakeholders notes

    3,965     7,314     11,535         22,814  

Interest payments

    999     1,279     283         2,561  

Operating leases

    1,241     1,272     21         2,534  
                       

Total Contractual Obligations

  $ 71,555   $ 9,865   $ 11,839   $   $ 93,259  
                       
                       

    Revolving Line of Credit

        On July 20, 2012, we entered into a five year line of credit with GE. As of June 26, 2014, the amount available for borrowing under the revolving line of credit is the lesser of $120,000 and the sum of 85% of eligible accounts and a portion of eligible inventory, less any outstanding letters of credit and swing loans. Additionally, the revolving line of credit permits incremental increases in the line of credit or issuance of term loans up to an aggregate amount of $25,000, subject to specified conditions.

        As of June 26, 2014, we had outstanding borrowings of $0, a reduction of borrowings of $62,622 since December 31, 2013. The majority of such repayments were funded by investments in our Series A Preferred Stock made by certain funds of T. Rowe Price and Janus Capital Group in January and April 2014.

        The effective interest rate for base rate borrowing at March 31, 2014 and 2013 was 4.00%. The effective rate on LIBOR rate borrowing at March 31, 2014 and 2013 was 1.903% and 1.954%, respectively. At March 31, 2014, we had base rate borrowings outstanding in the amount of $14,000 and LIBOR rate borrowings outstanding in the amount of $25,000.

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    Mortgage Loan

        We entered into a $7,440 mortgage loan with JP Morgan Chase in December 2010 for the purchase of our headquarters building. The remaining outstanding loan amount was scheduled to mature in June 2014. We paid the JP Morgan Chase mortgage off in May 2014.

    Stakeholder Notes

        We entered into several notes payable to current or former stakeholders primarily upon the redemption of certain shares of common stock and common stock options formerly owned by the stakeholders. The obligations mature in 2017, as per the terms of the executed promissory notes. We intend to use certain proceeds from this offering to retire all of the stakeholder notes.

    Interest Payments

        This represents future interest payments due with respect to the line of credit, mortgage note and prior stakeholder notes as of December 31, 2013 based on their scheduled maturities.

    Additional Items Not Reflected in Table Above

        We purchase a large portion of our prescription drug inventory from AmerisourceBergen. In January 2012, we entered into an agreement with AmerisourceBergen that required a minimum of approximately $3,500,000 in purchase obligations over a five year period. We fully expect to meet this requirement.

        In connection with various redemptions of stock and stock options, in the event of a sale of the Company such that Philip Hagerman is no longer the majority shareholder of the Company or the Company sells substantially all of its assets, the Company is required to pay 1.0% of the net proceeds of such sale to trusts for the benefit of Deborah L. Ward, Philip Hagerman's sister, and certain other immediate family members.

Off-Balance Sheet Arrangements

        During the periods presented, we did not have any relationships with unconsolidated entities or financial partnerships, such as entities often referred to as structured finance or special purpose entities, which would have been established for the purpose of facilitating off-balance sheet arrangements or other contractually narrow or limited purposes.

Critical Accounting Policies and Estimates

        The accompanying consolidated financial statements, included elsewhere in this prospectus, have been prepared in conformity with accounting principles generally accepted in the United States of America and, accordingly, our significant accounting policies have been disclosed in Note 1 to the Consolidated Financial Statements. We consider accounting estimates to be critical accounting policies when:

    the estimates involve matters that are highly uncertain at the time the accounting estimate is made; and

    different estimates or changes to estimates could have a material impact on the reported financial position, changes in financial position, or results of operations.

        When more than one accounting principle, or the method of its application, is generally accepted, management selects the principle or method that it considers to be the most appropriate given the specific circumstances. Application of these accounting principles requires our management to make estimates about future resolution of existing uncertainties. Estimates are typically based upon historical experience, current trends, contractual documentation, and other information, as appropriate. Due to

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the inherent uncertainty involving estimates, actual results reported in the future may differ from those estimates. In preparing these financial statements, management has made its best estimate and judgments of the amounts and disclosures included in the financial statements, giving due regard to materiality. The following summarizes our critical accounting policies.

    Revenue Recognition

        Revenue for both dispensed prescriptions and serviced prescriptions is recognized at the time of service completion. We derive revenue primarily from dispensing of the prescription to a patient. This revenue is recognized upon shipment of product to a patient, or in rare cases, to a physician, or at time of prescription pick up from the pharmacy.

    Accounting for Stock-based Compensation

        We have authorized the granting of stock options to key employees with an exercise price no less than the estimated value of the underlying common shares on the date the option is granted. Options generally become exercisable in installments of 25% per year, beginning on the first anniversary of the grant date and each of the three anniversaries thereafter, and have a maximum term of ten years. We use the Black-Scholes-Merton option pricing model to determine the valuation of options.

        We expense the grant date fair values of its employee stock options over their respective vesting periods on a straight-line basis. Estimating grant date fair values for employee stock options requires management to make assumptions regarding expected volatility of the underlying shares, the risk-free rate over the life of the stock options, and the date on which share-based payments will be settled. Expected volatility is based on an implied volatility for a group of comparable companies as of the measurement date. Risk-free rate is determined based upon U.S. Treasury rates over the estimated expected option lives. Expected dividend yield is zero as we do not anticipate that any dividend will be declared during the expected term of the options. Expected option life is less than the option term. If actual results differ significantly from these estimates and assumptions, particularly in relation to management's estimation of volatility which requires the most judgment due to our being a private entity, share-based compensation expense, primarily with respect to future share-based awards, could be materially impacted.

        The following table summarizes all option grants from December 31, 2012 through the date of this prospectus:

 
   
  Weighted-Average Per Share  
Grant Date
  Class A and Class B
common stock underlying
options granted
  Exercise price   Common stock
fair value
at grant date
  Fair value
at grant date
 

Outstanding as of December 31, 2012

    653.58751     27,921.51     23,148.79     6,571.02  

January 1, 2013

    21.37475     50,614.72     27,414.55     1,087.60  

January 15, 2013

    64.12501     49,966.02     27,063.20     1,086.20  

December 18, 2013

    44.15000     137,360.45     140,562.79     30,274.46  

February 1, 2014

    46.30537     142,320.00     136,932.49     26,458.29  

May 20, 2014

    11.57635     142,320.00     136,932.49     26,479.98  
                         

    841.11899                    
                         

    Common Stock Valuation

        The fair value of the common stock underlying our share-based awards was determined by our board of directors, with input from management. Given the absence of a public trading market of our common stock, and in accordance with the American Institute of Certified Public Accountants Accounting and Valuation Guide : Valuation of Privately-Held-Company Equity Securities Issued as

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Compensation , the board of directors exercised reasonable judgment and considered numerous objective and subjective factors to determine the best estimate of the fair value of our common stock including:

    recent significant investments by sophisticated, institutional investors for purchases of our convertible preferred stock, and the rights, privileges and preferences of such preferred stock to our common stock;

    valuations of our common stock performed by an unrelated third-party valuation specialist;

    our historical and projected operating and financial results;

    the market performance and financial results of comparable publicly-traded companies;

    industry or company-specific considerations;

    likelihood of achieving a liquidity event, such as an initial public offering or a sale of the Company;

    lack of marketability of our common stock; and

    the U.S. and global capital market conditions.

        The nature of the material assumptions and estimates considered to determine the fair market value of our common stock are highly complex and subjective.

        In valuing our common stock in December 2012 and January 2013, our board of directors determined the business enterprise value ("BEV") of our business generally using the income approach and the market approach using the market comparable method.

        The income approach estimates fair value based on the expectation of future cash flows that a company will generate such as cash earnings, cost savings, tax deductions, and the proceeds from disposition of assets. These future cash flows are discounted to their present values using a discount rate which reflects the risks inherent in our cash flows. This approach requires significant judgment in estimating projected growth rates and cost trends and in determining a discount rate adjusted for the risks associated with our business.

        The market comparable method estimates fair value based on a comparison of the subject company to comparable public companies in similar lines of business. From the comparable companies, a representative market value multiple is determined which is applied to the subject company's operating results to estimate the value of the subject company. In our valuations, the multiple of the comparable companies was determined using a ratio of the market value of invested capital to projected revenue and/or earnings before interest, taxes and depreciation and amortization for the current and following year. Our peer group of companies included a number of market leaders in the healthcare services industry and related businesses similar to, or adjacent to our own business. The market comparable method requires judgment in selecting the public companies that are most similar to our business and in the application of the relevant market multiples to our financial performance metrics. We have from time to time updated the set of comparable companies utilized as new or more relevant information became available, including changes in the market and our business models and input from third party market and valuation experts.

        Once we determine our BEV under each approach, we apply a weighting to the income approach and the market approach primarily based on the relevance of the peer companies chosen for the market approach analysis as well as other relevant factors. We then reduced the BEV by our total net debt to arrive at the estimated fair value of our common stock. Based on this information, our board of directors made the final determination of the estimated fair value of our equity and common stock.

        In valuing our common stock in December 2013, February 2014 and May 2014, our board of directors estimated BEV using the subject company transaction method, which is one of the three primary methodologies of the market-based approach. This methodology utilizes the most recent

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negotiated arm's-length transactions involving the sale or transfer of our stock or equity interests. Our indicated BEV at each valuation date was allocated to the shares of preferred stock, common stock and options using the Black-Scholes option-pricing model. In January 2014 and April 2014, we negotiated significant investments with sophisticated, institutional investors for purchases of our convertible preferred stock.

    Goodwill and Intangible Assets

        We allocate the purchase price of any acquisitions to tangible assets and liabilities and identifiable intangible assets acquired. Any residual purchase price is recorded as goodwill. The allocation of the purchase price requires management to make significant estimates in determining the fair values of assets acquired and liabilities assumed, especially with respect to intangible assets. These estimates are based on information obtained from management of the acquired companies and historical experience and are generally made with the assistance of an independent valuation firm. These estimates can include, but are not limited to, the cash flows that an asset is expected to generate in the future, and the cost savings expected to be derived from acquiring an asset. These estimates are inherently uncertain and unpredictable, and if different estimates were used the purchase price for the acquisition could be allocated to the acquired assets and liabilities differently from the allocation that we have made. In addition, unanticipated events and circumstances may occur which affect the accuracy or validity of such estimates, and if such events occur we may be required to record a charge against the value ascribed to an acquired asset or an increase in the amounts recorded for assumed liabilities. Our goodwill and intangible assets as of March 31, 2014 and December 31, 2013 result from our acquisition of AHF on December 16, 2013.

    Goodwill Impairment Testing

        Goodwill will be reviewed for impairment annually or more frequently if impairment indicators exist. Accounting guidance provides the option of performing a qualitative assessment that may allow companies to forego the annual two-step quantitative impairment test for goodwill if it is determined that the fair value of the applicable reporting unit is more likely than not greater than its carrying value. This qualitative assessment evaluates various events and circumstances, such as macro-economic conditions, industry and market conditions, cost factors, relevant events and financial trends that may impact a reporting unit's fair value. If the two-step impairment test for goodwill is deemed necessary, this quantitative impairment analysis would compare the fair values of our reporting unit to its carrying value. If a reporting unit's carrying value exceeds its fair value, we must then calculate the reporting unit's implied fair value of goodwill and impairment charges are recorded for an excess of the goodwill varying value over the implied fair value of goodwill. The reporting unit's fair value is based upon consideration of various valuation methodologies, including projected future cash flows discounted at rates commensurate with the risks involved, guideline transaction multiples, and multiples of current and future earnings. Any adverse change in these factors could have a significant impact on the recoverability of these assets and could have a material impact on our consolidated financial statements.

        Following this offering, our goodwill impairment analysis will also include a comparison of the estimated fair value of our reporting unit to our total market capitalization. We will consider a significant and sustained decline in our stock price and market capitalization as an additional factor in our goodwill assessments.

    Long-lived Asset Impairment Testing

        Long-lived assets, which include property, equipment, capitalized software, investment in non-consolidated entity and definite-lived intangible assets are periodically reviewed for impairment indicators. In assessing long-lived assets for impairment, assets are grouped with other assets and liabilities at the lowest level for which identifiable cash flows are largely independent of the cash flows

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of other assets and liabilities. If impairment indicators exist, we perform an undiscounted cash flow test to determine recoverability. If this recoverability test identifies a possible impairment, management will perform a fair value analysis. Fair values of long-lived assets are determined through various techniques, such as applying probability weighted, expected present value calculations to the estimated future cash flows using assumptions a market participant would utilize or through the use of valuation specialist. We compare the fair value of the long-lived asset to its net carrying value and an impairment charge is recorder for the amount by which the net carrying value of the long-lived asset exceeds its fair value.

        Management believes that the estimates of future cash flows and fair value assumptions are reasonable; however, changes in assumptions underlying these estimates could affect the valuations. Long-lived assets held for sale are recorded at the lower of their carrying amount or fair value less cost to sell. Significant judgments and estimates used by management when evaluating long-lived assets for impairment include (i) an assessment as to whether an adverse event or circumstance has triggered the need for an impairment review, (ii) undiscounted future cash flows generated by the asset, and (iii) fair valuation of the asset.

    Income Taxes

        Prior to January 23, 2014, we had elected to be taxed under the provisions of Subchapter S of the Internal Revenue Code. Under these provisions, we did not pay federal corporate income taxes on our taxable income. Instead, the shareholders were liable for individual federal income taxes on their respective shares of our taxable income. Distributions were made periodically to our shareholders to the extent needed to cover their income tax liability based on our taxable income.

        On January 23, 2014, we changed our income tax status from S corporation to a C corporation. Accordingly, on that date, we recorded a net deferred income tax liability of $2,492 and reclassified all of our accumulated deficit, inclusive of the net deferred tax liability adjustment, into additional paid-in capital. The pro forma data presented on the consolidated statements of operations give effect to our election to be a C corporation as if that election was made effective January 1, 2013.

        As a C corporation, we account for income taxes under the asset and liability approach. Deferred tax assets or liabilities are determined based on the difference between the financial statement and tax bases of assets and liabilities and on tax credit carry forwards as measured by the enacted tax rates which will be in effect when these items impact the tax returns. We provide a valuation allowance against net deferred tax assets unless, based upon the available evidence, it is more likely than not that the deferred tax assets will be realized.

        We prepare and file tax returns based on interpretations of tax laws and regulations. In the normal course of business, our tax returns are subject to examination by various taxing authorities. Such examinations may result in future tax and interest assessments by these taxing authorities. In determining our tax provision for financial reporting purposes, we establish a reserve for examination, based on their technical merits. That is, for reporting purposes, we only recognize tax benefits taken on the tax return if we believe it is "more likely than not" that such tax position would be sustained. There is considerable judgment involved in determining whether it is "more likely than not" that such tax positions would be sustained. As of March 31, 2014, we have no recorded uncertain tax positions.

        We adjust our tax reserve estimates periodically because of ongoing examinations by, and settlements with, varying taxing authorities, as well as changes in tax laws, regulations and interpretations. The consolidated tax provision of any given year includes adjustments to prior year income tax accruals and related estimated interest charges that are considered appropriate. Our policy is to recognize, when applicable, interest and penalties on uncertain income tax positions as part of income tax expense.

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    Bad Debt Allowance

        We maintain an allowance for doubtful accounts that reduces receivables to amounts that we expect to be collected. In estimating this allowance, we consider overall economic conditions, historical and anticipated customer performance, historical experience with write-offs, and the level of past due accounts.

    Inventory Adjustments

        Inventories are stated at the lower of cost or market and cost is determined using the first-in, first-out (FIFO) methodology. The cost of inventory is adjusted quarterly based on a physical inventory counts. We also recognize a loss whenever inventory is impaired by damage, deterioration, obsolescence, change in price levels, or other cause. We consider factors such as excess or slow-moving inventories, product expiration dating, current and future customer demand, and market conditions to determine if any adjustment to inventory cost is necessary.

Recent Accounting Policies

        New Accounting Pronouncements:     In February 2013, the Financial Accounting Standards Board ("FASB") issued Accounting Standards Update ("ASU") No. 2013-4, Liabilities (Topic 405): Obligations Resulting from Joint and Several Liability Arrangements for Which the Total Amount of the Obligation is Fixed at the Reporting Date . This ASU is effective for interim and annual periods beginning after December 15, 2013 and requires the measurement of obligations resulting from joint and several liability arrangements for which the total amount of the obligation is fixed at the reporting date as the sum of: a) the amount the reporting entity agreed to pay on the basis of its arrangement among its co-obligors; and b) any additional amount the reporting entity expects to pay on behalf of its co-obligors. Required disclosures include a description of the joint-and-several arrangement and the total outstanding amount of the obligation for all joint parties. We anticipate the adoption of this guidance will have minimal impact on its financial position, results of operations, cash flows or disclosures.

        In July 2013, the FASB issued ASU No. 2013-11 , Income Taxes (Topic 740): Presentation of an Unrecognized Tax Benefit When a Net Operating Loss Carryforward, a Similar Tax Loss, or a Tax Credit Carryforward Exists. This ASU is effective for fiscal years and interim periods beginning after December 15, 2013 and changes the presentation of unrecognized tax benefits. We are currently evaluating the impact that the adoption of this guidance will have on its financial position, results of operations, cash flows and/or disclosures.

        In April 2014, the FASB issued ASU No. 2014-8 , Presentation of Financial Statements (Topic 205) and Property, Plant, and Equipment (Topic 360): Reporting Discontinued Operations and Disclosures of Disposals of Components of an Entity. This ASU is effective within annual periods beginning on or after December 15, 2014, and interim periods within annual periods beginning on or after December 15, 2015 with early adoption permitted in certain circumstances. This ASU changes the requirements for reporting discontinued operations. We are currently evaluating the impact that the adoption of this guidance will have on its financial position, results of operations, cash flows and/or disclosures.

        In May 2014, the FASB issued ASU No. 2014-9 , Revenue from Contracts with Customers (Topic 606). This ASU is effective for annual periods beginning after December 15, 2016, including interim periods within that reporting period. This ASU changes the requirements for revenue recognition. We are currently evaluating the impact that the adoption of this guidance will have on its financial position, results of operations, cash flows and/or disclosures.

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Quantitative and Qualitative Disclosures about Market Risk

        We are exposed to interest rate fluctuations with regard to future issuances of fixed-rate debt, and existing and future issuances of floating-rate debt. Primary exposures include the U.S. Prime Rate and LIBOR related to debt outstanding under our line of credit. In the past, we have used interest rate swaps to reduce the volatility of our financing costs and to achieve a desired proportion of fixed versus floating-rate debt. We did not use our interest rate swap for trading or other speculative purposes. We currently are not using any interest rate swaps, but may in the future.

        At December 31, 2013, the principal outstanding on our revolving line of credit was $62,622. Interest on our line of credit is charged at a rate equal to either (a) the base rate, which equates to the rate last quoted by The Wall Street Journal as the "Prime Rate" or as further defined in the agreement in the absence of such, plus an applicable margin (the "Base Rate"); or (b) LIBOR, as defined by the agreement, plus an applicable margin. The applicable margin on the Base Rate borrowings is 0.75% and on LIBOR rate borrowings is 1.75%. The effective interest rate for Base Rate borrowings at December 31, 2013 was 4.00%. The effective rate on LIBOR rate borrowings at December 31, 2013 was 1.92%. At December 31, 2013, we had Base Rate borrowings outstanding in the amount of $37,622 and LIBOR rate borrowings outstanding in the amount of $25,000. Additionally, we are charged a monthly unused commitment fee ranging from 0.25% to 0.50% on the average unused daily balance.

        Based on the revolving line of credit balance outstanding on December 31, 2013, a 100 basis point decrease in the applicable interest rate would increase our 2013 cash flow and pre-tax earnings by approximately $626. An increase in the applicable interest rate would decrease our 2013 cash flow and pre-tax earnings by the same amount. Based on our ability to pay down any outstanding balance on our line of credit without prepayment penalty, as well as our plan to use proceeds from this offering to pay our balance down significantly or completely, we do not believe that interest rate fluctuations create a significant risk.

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BUSINESS

Our Company

         This summary highlights information appearing elsewhere in this prospectus and does not contain all of the information that you should consider in making your investment decision. Before investing in our common stock, you should read the entire prospectus carefully, including the sections titled "Risk Factors," and "Management's Discussion and Analysis of Financial Condition and Results of Operations" and our consolidated financial statements and related notes included elsewhere in this prospectus. Unless the context suggests otherwise, references in this prospectus to "Diplomat," "the Company," "we," "us" and "our" refer to Diplomat and its consolidated subsidiaries.

Business Overview

        We are the nation's largest independent specialty pharmacy and are focused on improving lives of patients with complex chronic diseases. We believe our independence, which we define as our singular focus on specialty pharmacy services independent of other operations such as pharmacy benefit management or managed care, allows us to focus on the patients first and to address the specific needs of all of our constituents. We believe we have a unique patient-centric approach that positions us at the center of the healthcare continuum for the treatment of complex chronic diseases and enables us to drive superior care coordination through partnerships with patients, payors, pharmaceutical manufacturers and physicians. We offer a broad range of innovative solutions to address the dispensing, delivery, dosing and reimbursement of clinically intensive, high-cost specialty drugs. We believe that we are a chosen partner for leading biotechnology and pharmaceutical companies based on our ability to deliver customized support services and dispense new drugs to complex chronic disease patient populations.

        Diplomat opened its doors in 1975 as a neighborhood pharmacy with one essential tenet: "Take good care of patients, and the rest falls into place." Today, that tradition continues and we have focused on creating a culture that is highly focused on increasing adherence and improving outcomes. We believe that our primary focus on the patient differentiates us from our significant competitors that also provide pharmacy benefit management services or other health care services that do not focus singularly on managing the patient experience. We understand that the primary concerns of a patient facing a chronic and serious condition are quality of care and ease of working with the pharmacy. We believe that our detailed, well managed, high-touch patient care program that is designed to address these concerns is essential to our success. Our specialty drug dispensing and services business model described below creates partnerships with patients, payors, pharmaceutical manufacturers and physicians—with a focus on improving adherence and the patient experience.

        We were founded in 1975 by our Chief Executive Officer, Philip Hagerman, and his father, Dale, both trained pharmacists who transformed our business from a traditional pharmacy into a leading specialty pharmacy. In 2005, we began to expand the scope of our specialty pharmacy business from a small regional operation to a large national enterprise, allowing us to capitalize on the growth of the specialty pharmacy market from $20 billion in sales in 2005 to $63 billion in sales in 2013. As a result, we have grown our revenues organically to over $1.5 billion in 2013, achieving a compounded annual growth rate of over 65% since 2005, and we are now the fourth largest overall specialty pharmacy in the United States. To achieve this growth, we have consistently strengthened our clinical expertise in key therapeutic categories, such as oncology and immunology, broadened the scope of our services to retailers, hospitals and health systems and strengthened our relationships with patients, payors, pharmaceutical manufacturers and physicians.

        We focus on specialty drugs that are typically administered on a recurring basis to treat patients with complex chronic diseases that require specialized handling and administration as part of their distribution process. We have expertise across a broad range of high-growth specialty therapeutic

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categories, including oncology, immunology, hepatitis, multiple sclerosis, HIV and infusion therapy. Our comprehensive, patient-focused services ensure that patients receive a superior standard of care including assistance with complicated medication therapies, refill processing, third-party funding support programs, side effect management and adherence monitoring. We customize solutions for each patient based on the patient's overall health, disease and family history, lifestyle and financial means. We believe we reduce long-term costs for patients and payors by improving patient care, enhancing clinical outcomes, managing high risk members, monitoring patient adherence, and optimizing the utilization of specialty drugs, many of which can cost well over $100,000 per patient, per year. This value proposition to payors and patients has helped us expand our managed lives under contract from approximately five million in 2009 to approximately 13 million in 2013.

        Collectively, our unique ability to enhance patient adherence to complex drug regimens, to collect and report data, and to ensure effective dispensing of complex specialty medications supports the clinical and commercial needs of pharmaceutical manufacturers. Furthermore, our patient and provider support services ensure appropriate drug initiation, facilitate patient compliance and persistence, and capture important information regarding safety and effectiveness of the specialty medications that we dispense. Our services, together with our proactive engagement with pharmaceutical manufacturers early in the drug development process, have contributed to our current and growing access to limited distribution drugs, which we define as drugs that are only available for distribution by a select network of specialty pharmacies. Our inclusion in limited distribution networks provides critical sources of revenue growth and provides a catalyst for our future growth.

        Our core revenues are derived from the customized care management programs we deliver to our patients, including the dispensing of their specialty medications. Because our core therapeutic categories generally require multi-year or life-long therapy, our singular focus on complex chronic diseases helps drive recurring revenues and sustainable growth. Our revenues grow in part as we help more patients access the drugs they need in order to live longer and healthier lives. As a part of our mission to improve patient care, we provide specialty pharmacy support services to a national network of 8 retailers and independent pharmacy groups, representing approximately 4,500 stores and 48 hospitals and health systems. For many of our retail, hospital and health system partners, we earn revenue by providing clinical and administrative support services on a fee-for-service basis to help them dispense specialty medications. Thus, our patient-focused solutions benefit multiple partners across the healthcare continuum, which we believe drives the sustainability of our business model.

Market Opportunity

        Specialty pharmaceuticals represent a significant and growing total addressable market.     The specialty pharmaceutical market has experienced significant growth in recent years as complex chronic conditions, care coordination, technology-enabled patient care, biotechnology research and outcomes-based healthcare have increased in focus. The total specialty benefits represented approximately $92 billion in drug spend in 2012. Total specialty pharmaceutical drug spend covered under the pharmacy benefit was approximately $51 billion in 2012 and is estimated to grow to $118 billion by 2018. While our historic focus has been pharmacy benefit, a significant portion of the specialty drug market is funded through medical benefit. Medical benefit means the reimbursement of specialty pharmaceutical drugs as a medical benefit in a health plan, rather than as a drug benefit under a health plan, which we refer to as a pharmacy benefit. Specialty drugs reimbursed under the medical benefit have also expanded rapidly in recent years and were approximately $41 billion, or approximately 45%, of the total specialty drug spend in 2012. Increasingly, drugs that have historically been reimbursed under the medical benefit are being moved to the pharmacy benefit by health plans and pharmacy benefit managers to better manage care and contain costs. We believe that the medical benefit represents a significant additional revenue opportunity for us and expect it to play a larger role in our business going forward. In addition, we believe that our track record and leadership in limited

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distribution drug programs will create opportunities for us to gain market share in this growing segment of the specialty pharmacy market.

        Growth in specialty drug spend is significantly outpacing the broader pharmaceutical market.     Specialty drugs are the fastest growing segment of the pharmaceutical market, and spend in this segment is estimated to grow at approximately 20% annually from 2012 to 2020, whereas traditional drug spend is expected to decline. Specialty pharmaceutical products are targeted towards high-cost complex medical conditions, have fewer direct substitutes than traditional pharmaceuticals and face limited near-term generic market entry. These factors limit competition and drive higher prices. Additionally, specialty drug approvals comprised over 50% of all FDA drug approvals in 2013 as pharmaceutical and biotechnology companies have continued to invest in specialty drug development. This trend is expected to continue, driven by a robust pipeline of specialty drugs, which represent approximately 45% of the total number of drugs currently in development.

        Oncology and immunology, therapeutic categories in which we believe we are a leader, are large and growing therapeutic categories within the specialty pharmaceuticals industry.     The oncology market represented 29% of specialty pharmaceutical sales in the U.S. in 2013. The immunology market, including the disease states rheumatoid arthritis, psoriasis and crohn's disease, also represents a large and growing specialty market. We believe these two therapeutic categories will continue to grow, given that there are over 400 oncology and immunology drugs currently in clinical development which represent over 40% of the biologics pipeline. Further, there are over 3,000 oncology and immunology drugs in global drug development. Given the chronic nature of these disease states, we provide recurring services to these patients over long periods of time. In 2013, we generated over 70% of our revenues in oncology and immunology, and our historical growth has largely been driven by our position as a leader in these categories.

Competitive Strengths

        We are the nation's largest independent and fourth largest overall specialty pharmacy, and we believe we are well positioned to continue to increase our market share based on the following competitive strengths.

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        Adding value to all constituents.     The value we deliver to all constituents is centered upon our core focus on patients. We help patients adhere to complicated medication therapies, process refills and manage any side effects and insurance concerns to ensure they get the best standard of care. We also help identify third-party funding support programs to help cover expensive out-of-pocket costs. In 2013, we helped our patients successfully obtain $24 million of funding assistance to help cover out-of-pocket co-pay costs. Our focus on patients and our related patient-support programs have allowed us to achieve an overall patient satisfaction rate of approximately 99%.

GRAPHIC

      Supporting our core focus on patients, we also serve the constituents below.

      (1) Payors:     We manage prescription regimens for chronically ill populations and help payors, which include insurance plans and pharmacy benefit managers, reduce costs through customized specialty pharmacy programs. Our high-touch electronic patient care platform, centered on our disease-specific technology solution, is customized for each payor's needs and is designed to improve efficiency and lower costs. For example, through our partial fill program, we promote more frequent direct intervention and tracking of patients and their therapies by our highly trained clinical experts.

      (2) Biotechnology and Pharmaceutical Manufacturers:     We offer specialized and highly customized prescription programs for pharmaceutical companies to help them optimize and track patient adherence which helps drive the clinical and commercial success of specialty drugs. In addition, we partner with pharmaceutical manufacturers early by helping them develop specialty pharmaceutical channel strategies as part of their commercial launch preparation.

      (3) Physicians and Health Systems:     Our team works with physician offices to manage prior-authorization and other managed care organization requirements, such as denial and appeal process, to ensure that complicated administrative tasks do not impair the delivery of quality patient care. Additionally, we provide risk evaluation services, implement risk mitigation strategies and collect patient adherence data to provide physicians and health systems with

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      enhanced visibility on patient outcomes. Our transparency and support has led to a physician satisfaction rate of approximately 97%.

      (4) Retailers and Hospitals:     We provide clinical and administrative support services for our retail and hospital partners on a fee-for-service basis. Based on our broad industry experience, infrastructure and treatment-tracking software, our retail specialty network solution provides customized clinical and administrative support services that help retailers and their specialty patients improve financial and clinical outcomes. We provide hospitals with unique solutions to maximize cost containment, improve efficiency and clinical outcomes from specialty pharmaceuticals. Our programs also support hospitals that are 340B covered entities through a contracted pharmacy strategy.

        Significant and longstanding payor relationships—approximately 13 million managed lives under contract.     We partner with 40 regional and mid-sized payors and independent pharmacy benefit managers to improve patient outcomes and lower costs by managing high risk members and implementing patient-focused specialty programs. We strive to improve the clinical outcomes for high-risk members through adherence monitoring, patient education and clinical intervention. We offer payors access to limited distribution drugs and unique cost containment programs, including partial refill programs, clinical management and motivational interviewing techniques for improving adherence. We believe that medication non-adherence (i.e., patients not following the instructions for their medication or failing to finish taking their medication) is the largest avoidable cost in specialty pharmacy, and we have achieved patient adherence rates of over 90% for the quarter ended March 31, 2014 with our patient training and education, compliance packaging, prophylactic starter kits and nurse adherence calls. We believe that our focus on high-touch patient care and our experience with high-risk populations makes us well-positioned for the anticipated growth in managed lives under the Affordable Care Act, particularly with respect to managed Medicaid coverage.

        Partner of choice for biotechnology and pharmaceutical manufacturers.     We believe that our role as the partner of choice for many biotechnology and pharmaceutical manufacturers is based on the following attributes:

    Expertise in managing limited distribution drugs.   We have historically earned access to many limited distribution drugs, both at the time of their launch and post-launch. We actively monitor the drug pipeline and maintain dialogue with many of the major biotechnology and pharmaceutical manufacturers to identify opportunities in all pre-commercial stages of drug development. We believe that limited distribution is becoming the delivery system of choice for many drug manufacturers because it facilitates high patient engagement, clinical expertise and elevated focus on service. This belief is based in part on our past success in dispensing prescriptions for new drugs in as little as two days after launch, which we believe is materially faster than most of our competitors. Furthermore, we believe that our innovative solutions and service-oriented culture set us apart from our competitors, have enabled us to win a large number of limited distribution contracts and is more appealing than our competitors' platforms to emerging biotechnology firms and the boutique consulting firms that advise them. We believe that the trend toward limited distribution of specialty drugs will continue to expand in the future, making strong representation in this area essential. Accordingly, we believe our current portfolio of over 70 limited distribution drugs positions us for disproportionate growth as more limited distribution drugs come to market.

    Proven track record of adding value.   We believe we outperform our competitors in providing services that benefit specialty drug manufacturers. Our superior services are driven by our clinical expertise in oncology, immunology, hepatitis, multiple sclerosis, HIV and specialty infusion. We offer targeted pilot programs, full reporting capabilities and a variety of additional services that support patients' medication adherence when clinically appropriate. We believe

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      these superior services and capabilities were a primary driver of our gaining access to, and becoming the largest of five specialty pharmacies that can, dispense Imbruvica, Pharmacyclics' Mantle Cell Lymphoma drug launched in November 2013.

    Breadth of channel partners.   In addition to our strong relationships with payors, physicians, manufacturers and patients, we also partner with retailers, hospitals and health systems by providing critical patient-facing clinical and administrative services that help support the specialty pharmacy capabilities of these constituents. We believe that our ability to provide the patient-centric services under the brand names of our retail, hospital and health system partners makes us a valued partner for these entities that lack the infrastructure and expertise to service their specialty drug patients on their own. These partnerships broaden our exposure and influence across the healthcare continuum.

    Relationships with clinical experts and key opinion leaders.   Our singular focus on specialty pharmacy and complex chronic diseases has enabled us to develop strong relationships with clinical experts and thought leaders in key therapeutic categories, such as oncology and immunology. We leverage these relationships to gain greater visibility into future drug launches and to stay current on the latest advances in patient care.

        National footprint with highly scalable infrastructure.     During the past several years, we have made significant investments to expand our capabilities and capacity, which we believe will help us to enhance sales volume, improve efficiency and create significant barriers to entry. In December 2010, we moved our corporate headquarters to a 550,000 square foot facility in Flint, Michigan. Our operations within this facility are highly scalable, as we currently utilize approximately 40% of the facility giving us significant capacity to execute our long term growth plan without significant additional capital expenditures. Our physical footprint has enabled us to develop a centralized infrastructure that we have successfully scaled to dispense to all 50 states. We now have an advanced distribution center that enables us to ship medications nationwide as well as a centralized clinical call center that helps us deliver localized services on a national scale. In addition to our headquarters, we also operate smaller regional facilities in Flint, Michigan; Grand Rapids, Michigan; Chicago, Illinois; Ft. Lauderdale, Florida; Ontario, California; Enfield, Connecticut; Raleigh, North Carolina; and Springfield, Massachusetts. We are fully accredited and licensed to conduct business in each of the states that require such licensure.

        Strong financial profile combines sustainable growth and low capital intensity.     Our financial profile is comprised of a recurring revenue model that is driven by the chronically ill populations we serve. As a result, we have demonstrated strong growth in revenue and profitability. We have achieved consistent revenue and Adjusted EBITDA growth with revenues increasing from $377 million in 2009 to $1,515 million in 2013 and Adjusted EBITDA increasing from $6 million in 2009 to $19 million in 2013, representing compound annual growth rates of 42% and 33%, respectively. In addition, we grew our net income from $3 million to $8 million over the same time period. See "—Selected Consolidated Financial Data" for our definition of Adjusted EBITDA, why we present Adjusted EBITDA and a reconciliation of our Adjusted EBITDA to net income. We expect our growth to continue to be driven by a highly visible and recurring base of revenues, favorable demographic trends, advanced clinical developments, expanding drug pipelines, earlier detection of chronic diseases and improved access to medical care. In addition, we believe that our expanding breadth of services, our growing penetration with new customers, and our access to limited distribution drugs, will help us achieve significant and sustainable growth and profitability in future.

        Highly experienced and passionate management team.     Our senior management team, which consists of six executives, has an average of over 26 years of experience in the pharmacy and specialty pharmacy industry and represents a group of highly recognized and respected industry veterans. Led by our Chief Executive Officer, Philip Hagerman, our management team is responsible for our proven track record

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of growth, consistent performance and industry leading service. Philip, a licensed pharmacist, second generation principal and recognized specialty pharmacy industry thought-leader, is a frequent speaker at state and national pharmacy conferences and has received several awards as a leading business executive in the country, including recognition by the White House Business Council for his leadership in job creation and community development. Our senior management team has an average tenure with Diplomat of over 12 years and brings a healthy balance of significant experience with Diplomat and with other companies in the industry, including public companies. In addition, our broader sales, clinical and operations team, has deep clinical expertise and includes over 50 licensed pharmacists.

Growth Strategy

        We plan to grow our business by continuing to execute on the following key growth strategies:

        Capitalize on track record to expand leadership positions in high-growth oncology and limited distribution markets.     We believe our track record of providing a customized, high level of service to our manufacturer partners in the oncology and immunology markets has led to repeat contract awards and initial limited distribution contracts related to new drugs our partners bring to market. For example, we believe our success as a distributing pharmacy for Zytiga, a metastatic castration resistant prostate cancer drug approved by the FDA in April 2011, helped earn us limited distribution access to Xtandi, another metastatic castration resistant prostate cancer drug approved by the FDA in August 2012. Xtandi has grown to become one of our top 10 drugs with over $40 million in annual sales in 2013. Our clinical and sales teams consistently engage our emerging biotechnology partners on commercialization strategy 12 to 18 months in advance of potential FDA approval. These pre-existing relationships position us to capture market share in these high-growth markets. One example was the launch of Cometriq, a drug currently indicated for a form of thyroid cancer, on which we collaborated with the manufacturer and became the exclusive distributor.

        Expand clinical expertise to a broad range of therapeutic categories.     We serve a broad range of therapeutic categories, and we believe we can expand our clinical expertise to increasingly penetrate additional markets such as hepatitis, multiple sclerosis, HIV and specialty infusion. We believe these categories will become increasingly important to our patient population in the coming years due to advancement of therapies and increased incidences of chronic illness and that our platform will allow us to grow with market expansion. Specifically, we view specialty infusion as an attractive market due to significant projected growth and higher margins, and we intend to continue to invest in this important and growing area of our existing business. Our recent acquisitions of AHF and MedPro have significantly expanded our ability to access this market. Additionally, orphan and ultra-orphan drugs, which are associated with relatively small patient populations, are an increasingly important focus for us as the specific characteristics of these categories make utilization and compliance particularly challenging.

        Deepen and expand partner relationships.     We currently contract with and support regional and mid-sized payors and independent pharmacy benefit managers, employer groups, and union groups representing approximately 13 million managed lives across the United States. We plan to continue to work with our current clients to grow their membership and are focused on expanding our client base nationally. In addition to providing specialty pharmacy services for self-administered medications covered under the pharmacy benefit, (consider explaining pharmacy vs medical benefit) we also offer office-administered medications covered under the medical benefit to ensure that we provide a full spectrum of care to our specialty patients regardless of type of their benefit coverage and where they receive care. Further, our partnerships with retail pharmacies and hospitals allow us to serve specialty patients beyond the traditional specialty pharmacy approach. These partnerships allow patients to more easily access specialty medications in the retail setting and also positions Diplomat to be a key partner for Accountable Care Organizations.

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        Grow high-margin businesses and capitalize on investments to enhance key operating metrics.     In 2014, we contracted to significantly expand our retail customer base and expand our opportunities through service contracts to one of the largest hospital networks and group purchasing organizations. In addition, our continued expansion into the infusion market will provide us with opportunities to capitalize on a market which historically has provided higher margins. We have made significant investments in our technology, infrastructure and service lines to build a scalable foundation for growth, which we believe provides meaningful opportunities to grow revenues and enhance key operating metrics. We believe our investments in technology, both completed and in-process, will improve our operating cost profile and provide valuable revenue opportunities, as we enhance our data collection and delivery capabilities, services that are highly valued by our partners. Finally, we currently utilize approximately 40% of our 550,000 square foot facility in Flint, Michigan (purchased in 2010), providing meaningful capacity as we continue to scale our business.

        Selectively pursue growth through strategic acquisitions.     We believe the specialty pharmacy industry is highly fragmented and provides numerous opportunities to expand through acquisitions. While we will continue to focus on growing our business organically, we believe we can opportunistically enhance our competitive position through complementary acquisitions in both existing and new markets. For example, in December 2013, we completed the acquisition of AHF, a specialty infusion therapy provider focused primarily on hemophilia. In June 2014, we acquired MedPro, a specialty pharmacy focused on specialty infusion therapies including hemophilia and immune globulin. Specialty infusion is differentiated from traditional home infusion in that it requires highly customized services and level of care with therapies that can exceed $300,000 in costs per patient per year. Additionally, we plan to selectively evaluate potential acquisition opportunities in other therapeutic categories, services and technologies, with the goal of preserving our culture, continuing to deliver superior patient outcomes, enhancing value to other constituents and building long-term value for our shareholders.

Specialty Pharmacy Industry

        Specialty pharmacy services are a distinct form of pharmacy services that coordinate full service patient care and complex disease management. Specialty pharmacy services are designed to take advantage of economies of scale by using standardized and efficient processes to deliver medications with customized handling, storage and distribution requirements. Specialty pharmacies are also designed to improve clinical, adherence, and economic outcomes for patients with complex, often chronic, or rare conditions through a wide range of oral, injectable and infusible specialty pharmaceuticals.

        The U.S. market for specialty pharmaceuticals is estimated to be around $51 billion in 2012 and the market is expected to grow rapidly. See "—Market Opportunity" above for additional information regarding anticipated industry growth. We expect several factors to contribute to the continuing growth of the specialty pharmacy services industry, including the following:

    accelerating development and approval of new specialty pharmaceuticals and therapies, including from emerging biotechnology manufacturers;

    clinical advancements in personalized medicine;

    earlier detection of chronic disease;

    growing emphasis on care management and compliance monitoring to improve outcomes and reducing the overall cost of care related to high-cost, chronic diseases;

    healthcare cost containment pressures and growing recognition of early detection and proactive treatment as a means to reduce long-term treatment costs;

    growth of insured patient population;

    increased availability and acceptance of specialty pharmacy services;

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    migration of therapy from medical benefits to pharmacy benefits as well as management of specialty pharmaceuticals under the medical and pharmacy benefit;

    expansion of FDA-approved indications for currently marketed specialty pharmaceuticals;

    the anticipated approval of biosimilars and generics which will increase the availability of drugs in the market; and

    direct to consumer advertising.

        Less acute, chronic conditions are generally treated with self-administered, oral, injectable or inhalable specialty pharmaceuticals but may also be administered by a physician or nurse. These pharmaceuticals can be distributed directly to the patient for at-home administration or to the patient's physician for in-office administration. Several chronic, genetic conditions and orphan diseases are treated with infused pharmaceuticals via a more complex intravenous form of administration. These pharmaceuticals are dispensed under the supervision of a registered pharmacist and the therapies are typically delivered to the patient for self-administration in the home or administration by a credentialed home-health care nurse or trained caregiver at home or in another care site. Many of the pharmaceuticals handled by specialty pharmacies require refrigeration during shipping as well as special handling to prevent potency degradation. Patients receiving treatment usually require personalized counseling and education regarding their condition and treatment programs.

        The specialty pharmacy segment primarily treats conditions such as cancer, immune deficiency disorders, hepatitis, multiple sclerosis, hemophilia, neurological conditions and other chronic conditions. Retail pharmacies and other traditional distributors generally are designed to carry inventories of low cost, high volume products and therefore are not equipped to handle the high cost, low volume specialty pharmaceuticals that have specialized handling and administration requirements. In addition, those entities generally lack both the deep clinical expertise and the administrative and call center support functions necessary to effectively deliver specialty pharmacy services. As a result, specialty pharmaceuticals generally are provided by pharmacies that focus primarily on filling, labeling and delivering oral, injectable, infusible or inhalable pharmaceuticals and related medication and support services.

Our Services

        We provide specialty pharmacy services dedicated to servicing the needs of patients, while also providing clinical expertise, technology-driven innovation tools, and administrative efficiencies that support physicians, payors, pharmaceutical manufacturers, and retail pharmacies. We purchase specialty pharmaceuticals from manufacturers and wholesale distributors, fill prescriptions, and label, package and deliver the pharmaceuticals to patients' homes or physicians' offices through contract couriers. We utilize our Company-owned, high-volume distribution facility, seven smaller regional facilities and centralized clinical call centers to provide such services to all 50 states. The services provided to our patients and other constituents described below are integral to securing the relationships that drive our revenue and prescription volumes, and are a central focus of our specialty pharmacy business. In order to successfully compete, we must provide value to each constituent in the specialty pharmacy industry.

        Our value to constituents is based on our ability to provide large specialty and limited distribution product access, utilization management, high patient adherence rates, patient funding assistance, data management, outstanding patient and prescriber satisfaction rates and direct and indirect cost savings. Our adherence programs, including monthly monitoring calls, unique packaging to drive compliance, side effect management, patient education, and prescriber outreach, have resulted in patient adherence rates of more than 90%. Further, we manage the high cost of specialty drugs by pursuing cost savings through channel management, utilization management, formulary management (i.e., the list of specialty

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drugs that will be reimbursed by a health plan or managed care organization), and waste minimization (including our partial fill program).

        Our programs consist of the following business services:

    Specialty Drug Dispensing.   We are licensed to dispense prescriptions in all 50 states and all U.S. territories. Our business processes and state of the art dispensing solutions are well established and can provide specialty prescriptions to patients as required by the communicated "need by" date. All specialty prescriptions are verified by registered pharmacists for accuracy and appropriateness at two separate points in the dispensing process prior to shipping to patient. Our specialty dispensing and distribution capabilities include package tracking through contracted couriers, temperature controls and signature confirmation upon delivery.

    Specialty Infusion Pharmacy Services.   Our December 2013 and June 2014 acquisitions of AHF and MedPro, respectively, expanded our specialty infusion pharmacy services, a subset of specialty pharmacy services. Many acute and chronic conditions are generally treated with infusible pharmaceuticals that require administration of a more complex nature, primarily for hemophilia and immune globulin treatment. The medications are mixed and dispensed under the supervision of a registered pharmacist and the therapy is typically self-administered at home by the patient or through our extensive outsourced network of credentialed specialty nurses either in the patient's home or at other care sites.

    Patient Care Coordination.   Our patient care system is used to coordinate and track patient compliance outcomes and safety. It is built around specific drug therapies and disease states for greater consistency of care using clinical algorithms. Each step within the patient's treatment regimen is extensively researched based on various disease guideline publications. Our system automatically tracks all clinical interventions and activities and provides real-time access to patient information. Using this system, our care coordinators, including pharmacists, work with both patients and prescribers to identify potential adherence failures and implement proactive plans to optimize treatment outcomes.

    Clinical Services.   Our pharmacists and nurses, with the assistance of our pharmacy technicians, provide clinically based drug therapy management programs for clients and patients. Pharmacists provide counseling on compliance and side-effect management. Our Clinical Help Desk includes several pharmacists, as well as nurses and pharmacy technicians. A pharmacist is available to patients and prescribers 24 hours a day, seven days a week and nurses are available during normal business hours. Clinical pharmacists are responsible for high level clinical interaction with patients and healthcare practitioners including medication counseling and clinical advice. Our clinicians work with the patients' primary prescriber to identify adherence failures and to implement a proactive plan to achieve intended outcomes.

    Compliance and Persistency Programs.   Our compliance and persistency programs are drug specific and support the needs of patients based on their therapy regimen. In some cases, a dedicated nurse proactively contacts patients at specific intervals of therapy to discuss precautions, side effect management, administration of medication, and refill procedures. Prior to every refill, we call patients to verify the patient's dose and dosing regimen and shipping address, discuss side effects and confirm that the patient is appropriately taking the medication. Aside from standard protocol, we initiate calls at critical points during the therapy to improve adherence. This adherence program also addresses non-compliance by offering enhanced patient education and communication through customized programs specific to the medications we provide.

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    Patient Financial Assistance.   Our funding specialists help patients navigate their benefits and find third-party financial assistance to address coverage deficiencies. We provide services to help patients understand and receive reimbursement benefits and we work with available co-pay assistance programs, including co-pay card enrollment and program management. We currently work with substantially all major commercial co-pay card programs. Our team also coordinates with many external charitable foundations and research grant organizations that help subsidize the cost of medications for patients. We also help patients access manufacturer patient assistance (free drug) programs when necessary and available. These programs result in healthier outcomes for the patients and increased revenues for us.

    Specialty Pharmacy Training/Consulting (Diplomat University).   Diplomat University is our education and training department that educates both Diplomat employees and external professionals (including pharmacists, payors, pharmaceutical partners and physicians) on topics unique to the specialty pharmacy industry. Our in-depth, ongoing training program promotes clinical competence and builds new skills, enabling employees to provide high-level care for our patients and improve overall business performance. Diplomat University also houses our quality assurance department, which focuses on programs that promote quality and patient safety. Diplomat University-produced materials have been used in trade conference materials and magazine articles, as well as business meetings, to explain the specialty pharmacy industry generally and the broad range of solutions we can provide.

    Benefits Investigation.   Our standard procedures require that we conduct a benefits investigation for each patient we work with. In addition to processing test claims, our benefit specialists contact the appropriate medical or pharmacy benefit plan to verify coverage, deductible, coinsurance, and out-of-pocket maximum. Our specialists provide all necessary coding for the prescribed therapy or service. Any prior authorization or predetermination requirements are defined at the time of the benefits investigation. Our standard procedures require an initial test adjudication upon receipt of the referral and require subsequent investigations under certain circumstances.

    Prior Authorization.   Our prior authorization specialists contact the patient's insurance plan and collect all necessary patient specific information, together with supporting documentation, to provide to the third-party payor to support reimbursement for the prescribed medication, and coordinates with the prescribing physician. In the event that the required therapy is not listed on the third-party payor's formulary, we also compile the necessary information to file a formulary exception on behalf of the patient.

    Risk Evaluation and Medication Strategy ("REMS").   Our employees are skilled at administering REMS (Risk Evaluation and Mitigation Strategy) protocols on all levels of risk mitigation, which is required by many pharmaceutical manufacturers due to regulatory requirements. We have standard operating procedures in place to support all aspects of a REMS program, including REMS administration, REMS drug fulfillment, disease management, medication guide dispensing and the Elements to Assure Safe Use specific to pharmaceutical manufacturer's program. We also partner with manufacturers to report and track Adverse Drug Events where required. Our patient care system has been designed to capture much of the information the pharmaceutical manufacturer must report to the FDA.

    Retail Specialty Services.   Retail specialty services connects a retail pharmacy business to the specialty arena. Based on our broad industry experience, infrastructure and unique treatment-tracking software, retail specialty services offers companies a strategic partner for clinical and administrative support services that help the business and their specialty patients achieve their best outcomes. Large retailers with pharmacies, such as Safeway and Target, have access to many of the same specialty drugs we distribute, but lack the expertise and the infrastructure necessary to manage patients, payors, and physicians regarding these specialty drugs. Development of this

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      infrastructure is very costly, time consuming, and requires trained clinical experts. Our retail specialty services fills this gap with our breadth of service expertise, which includes nearly every aspect of our business other than purchasing the drugs and filling the prescriptions. We conduct patient-facing services under the specific retailer's brand name. For example, when our retail specialty services employees interact with patients and prescribers, these customers are unaware they are not engaging with our retail specialty services clients directly. These strategic relationships with retail pharmacies are important to pharmaceutical manufacturers and can further our access to additional limited distribution drugs, resulting in increased volumes of the specialty drug dispensing services described above.

    Hospital and Health System Services.   We provide clinical and administrative support services to hospitals and health systems that dispense specialty medications through their outpatient pharmacies. We partner with hospitals and health systems to assist with strategies and service delivery that maximizes cost containment and improves efficiency and clinical outcomes related to specialty pharmaceuticals. Our program also supports hospitals that are 340B covered entities through a contracted pharmacy strategy.

    Hub Services.   We also recently launched the provision of hub services to capitalize on our expertise in providing the services described above and to compete with other hub service providers. Hub services generally are centralized management services for collaboration and efficiency among the key participants in the specialty pharmacy system (including patients, physicians, payors, pharmaceutical manufacturers, retail pharmacies and other prescribers). In order to maintain client satisfaction and compliance we will keep certain information and software systems, infrastructure and employees "firewalled" from our specialty pharmacy business to avoid commingling or favoring any specialty pharmacy (including ours) within the networks of the hub customers.

Constituent Relationships

        Our services provide value to our constituents in the following ways.

    Patients

        We help manage patients' complex disease states through counseling and education regarding their treatment and by providing ongoing monitoring and, in some cases, proactive follow-up contact to encourage patient compliance with the prescribed therapy. The goal of Diplomat's patient care programs is to provide clinical services in a caring and supportive environment, optimize medication adherence, prevent disease progression and improve outcomes. To accomplish this, Diplomat focuses on each individual patient and provides solutions related to medication access, tolerance, and adherence.

        Diplomat provides patients with personalized medication programs and services for a variety of complex disease states, including the following:

    Oncology.   Cancer therapy often involves the use of highly-toxic chemotherapy or oral oncolytic agents with a high incidence of adverse events. Goals for these patients include the provision of the most effective therapy at the appropriate dose, adverse event management to ensure treatment can continue for as long as it is effective, and improvement in quality of life. Our clinicians strive to ensure optimal treatment outcomes for these patients by providing high-touch proactive and reactive care, focusing on appropriate dosage and administration, adverse event management, and adherence monitoring.

    Immunology.   Care of patients with autoimmune and/or inflammatory conditions generally involves the use of therapies aimed at slowing disease progression, reducing the rate of disease relapse, and managing disease symptoms. Goals for these patients include reducing the signs and symptoms of disease, minimizing short- and long-term side effects and complications of the

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      disease and therapy, and improving or normalizing the patient's quality of life. Our clinicians assist these patients by providing clinical management providing adverse event management support, proactively monitoring for adherence issues, and following up with prescribers in response to identified therapy issues.

    Hepatitis.   Management of hepatitis C virus infection involves the selection of appropriate therapy based on HCV genotype, the presence or absence of cirrhosis, transplant status, prior response to therapy, and whether or not the patient is co-infected with HIV or hepatitis B virus. Goals for these patients include achievement of sustained virologic response, decreasing the disease and therapy burden, and optimal adherence to therapy. Our clinicians ensure that hepatitis C virus therapy regimens are complete and appropriate, provide adverse event management support, and follow-up with prescribers to ensure optimal therapy outcomes.

    Multiple Sclerosis.   Care for patients diagnosed with multiple sclerosis involves life-long support. Goals for these patients include providing efficacious therapy to reduce the frequency of relapse and improving quality of life. Our clinicians ensure that patients are receiving the appropriate dose of therapy, provide adverse event counseling and management support, provide education on relapse mitigation strategies, and are available to respond to patient questions regarding therapy effectiveness and adverse events.

    Specialty Infusion Therapy.   Several chronic, genetic conditions and orphan diseases are treated with infused pharmaceuticals with a more complex intravenous form of administration. These pharmaceuticals are prescribed for individuals including but not limited to the following conditions: hemophilia, immune globulin and auto-immune deficiencies, hereditary angioedema and lysosomal storage disorders. Patients are generally referred to specialty infusion pharmacy services providers by physicians or case managers. The medications are dispensed under the supervision of a registered pharmacist and the therapy is typically delivered to the patient or caregiver for self-administration in the home or administration by a credentialed home-health care nurse or trained caregiver at home or in another care site.

    Other Disease States.   We also treat patients who have received organ transplants or who have HIV. Life-long therapy is essential for the prevention of organ rejection in transplant patients, and we seek to optimize adherence to therapy in order to decrease the likelihood of organ rejection. The management of HIV is complex and involves the use of highly-active anti-retroviral therapy. Goals for our patients diagnosed with HIV include achieving long-term, maximal suppression of viral load, preserving and improving immune system function (prevention of progression to acquired immunodeficiency syndrome), and prevention of the spread of HIV to others.

        A number of our patient-focused services are driven by adherence. Our standard procedures require that we maintain a team of pharmacists, nurses and certified pharmacy technicians available to answer patient questions by phone, 24 hours a day, seven days a week. We send patients all the medication and supplies they need for their prescribed therapy, including, when applicable our "CarePak" adherence packaging and starter kits, which helps patients manage the side effects of their primary prescriptions. Management of side effects is a key component of patient adherence. We also proactively contact patients with reminders when refills are required and contact their physician if a new prescription is necessary.

    Payors

        We provide payors with a comprehensive approach to meeting their pharmacy service needs. Our specialty pharmacy services offer payors a cost effective solution for the distribution of specialty pharmaceuticals, generally direct to patients for self-administration. We manage high-risk members in the payors' network and assist with adherence to such members' health plans to minimize waste in the purchase of specialty drugs and to optimize patient outcomes. We also provide access to a significant

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number of limited distribution drugs. Other services include coordination of care with the members' physicians and payors and the provision of utilization and outcomes data to evaluate therapy effectiveness.

        The value we provide to payors is reflected in the number of managed care organizations to whom we provide exclusive services. We have approximately 13 million managed lives under contract, which we define as patients enrolled in a managed care organization network including pharmacy benefit managers, health plans, state governments, employer groups and unions with whom we contract, through exclusive and preferred relationships with such organizations, whereby we are the only authorized or one of a few preferred specialty pharmacy providers to the patients in their system. These relationships accounted for approximately one-third of our revenues in 2013.

    Pharmaceutical Manufacturers

        We provide pharmaceutical manufacturers with a strong distribution channel for their existing pharmaceuticals and their new product launches. We implement patient monitoring programs that encourage compliance with the prescribed therapy. We also provide drug trial assistance including product encapsulation and packaging.

        The adherence rates that result from our patient-centered services described above directly benefit pharmaceutical manufacturers through clinically appropriate continued sales of their products to patients, who might otherwise have failed to continue their prescribed therapies, and improved patient outcomes that lead to greater market acceptance. In addition, the financial assistance and reimbursement management we provide to patients further drives pharmaceutical sales.

        In addition, pharmaceutical manufacturers frequently seek patient data on the efficacy and utilization of their products, which we currently provide in a de-identified and HIPAA-compliant format. This data provides valuable clinical information in the form of outcomes and compliance data to manufacturers to aid in their evaluation of the efficacy of their products. We continue to invest in new technologies that will enable us to better provide such analytical services.

        We have also assisted emerging biotechnology pharmaceutical companies in their commercialization of new drugs. In cases where pharmaceutical companies have successful clinical trials, but little commercialization experience, we are engaged to formulate strategies to market to, educate and fulfill the needs of patients, prescribers and payors. We refer to as this tailored, multifaceted approach as "channel strategies." We believe that in some cases, these engagements have led to exclusive rights to administer the products of these pharmaceutical companies or our inclusion in a small panel of authorized specialty pharmacies for limited distribution of drugs. We believe our significant expertise in providing channel strategies to emerging biotechnology manufacturers is unique, and has enabled us to dispense prescriptions for new drugs successfully in as little as two days after launch.

    Physicians and Other Prescribers

        We assist physicians and other prescribers with personalized and intensive patient support by providing care management related to their patients' pharmacy needs and improving patient compliance with therapy protocols. We eliminate the need for physicians to carry inventories of high cost prescriptions by distributing medications directly to patients' homes or, in other cases, to the physicians' offices. We also assist physicians and their clinical and non-clinical staff members by performing many of the administratively intensive tasks associated with benefits investigations, prior authorizations and other reimbursement related matters. We generally bill payors directly, on the patient's behalf, in nearly all cases. Further, we assist physicians by helping their patients manage the side effects of their therapies and monitoring adherence. We also provide physicians with clinical updates and assist with managing the pipeline of potential new therapies.

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Retail Pharmacies, Hospitals and Health Systems

        We provide specialty pharmacy management services for a fixed fee to various national, regional and independent retail pharmacies. We also provide such services to hospitals and health systems. These services are similar to those provided to payors with respect to their specialty pharmacy customers, except that we do not buy or dispense the specialty product. The services generally include the same patient engagement and adherence programs, reimbursement processing and patient funding programs, and general disease state management services described above. These services constituted less than 0.1% of our revenues in 2013.

Our Suppliers

        We obtain the pharmaceuticals and medical supplies and equipment that we provide to our patients through pharmaceutical manufacturers, distributors and group purchasing organizations. Most of the pharmaceuticals that we purchase are available from multiple sources and are available in sufficient quantities to meet our needs and the needs of our patients. However, some biotechnology drugs are only available through the manufacturer and may be subject to limits on distribution. In such cases, it is important for us to establish and maintain good working relations with the manufacturer in order to ensure sufficient supply to meet our patients' needs. We primarily utilize UPS in the delivery of our specialty pharmaceutical products.

        Most of the manufacturers of the pharmaceuticals we sell have the right to cancel their supply contracts with us without cause and after giving notice (generally 90 days or less). Specialty drug purchases from AmerisourceBergen and Celgene (from whom we purchase several drugs) represented 58% and 19%, respectively, of cost of goods sold in 2013, and 64% and 21%, respectively, of cost of goods sold in 2012. The reason we purchase large quantities from a single wholesaler is primarily for ease of administration and pricing. In the event of a termination of our relationship with AmerisourceBergen, we believe that there is typically at least one alternative drug wholesaler from whom we could source each non-limited distribution drug we dispense. We further believe that we could replace the inventories without a material disruption to our operations.

        Through the coverage and clinical expertise of our Company-owned, high-volume, main distribution facility and seven regional locations, some with retail capabilities and some with limited to moderate distribution capabilities, we provide pharmaceutical manufacturers with a strong distribution channel for their existing pharmaceutical products. In many cases, our national presence is critical to becoming a selected partner in the launch of new products. When providing new products to patients, we implement a monitoring program to encourage compliance with the prescribed therapy and we provide valuable clinical information to the manufacturer in the form of outcomes and compliance data to aid in their evaluation of the efficacy of the product. We receive fees, which we record as revenue or a reduction to cost of goods sold, from certain pharmaceutical manufacturers in return for providing them with clinical outcomes data.

Billing and Significant Payors

        We derive most of our revenue from contracts with third-party payors, such as managed care organizations, insurance companies, self-insured employers, pharmacy benefit managers and Medicare and Medicaid programs. We contract directly with some payors and pharmacy benefit managers or, in other cases, contract with third parties which in turn contract with payors and pharmacy benefit managers on our behalf. For the year ended 2013, approximately 22% of our revenue was derived through commercial payors, 27% through exclusive or preferred relationships with managed care organizations, and 51% through government programs.

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        We bill payors and track all of our accounts receivable through computerized billing systems. These systems allow our billing staff the flexibility to review and edit claims in the system before they are submitted to payors. For the great majority of our dispensing business, claims are submitted to payors electronically. We have extensive experience managing the coordination of benefits between commercial and government-sponsored plans. We participate with Medicare as a Durable Medical Equipment, Prosthetics, Orthotics and Supplies ("DMEPOS") pharmacy supplier, and participate in Medicare Part D. A benefit coverage specialist reviews all Medicare coverage determinations to ensure that the appropriate benefit is being billed. Upon completion of all benefit verifications, we follow each plan's guidelines to identify which plan is primary and secondary and submit the billing accordingly.

        Our financial performance is highly dependent upon effective billing and collection practices. The process begins with an accurate and complete patient admission process, in which all critical information about the patient, the patient's insurance and the patient's care needs is gathered. A critical part of this process is verification of insurance coverage and authorization from insurance to provide the required care, which typically takes place before we initiate services. An exception occurs when a patient referral is received outside of normal business hours, but we have an existing contractual relationship with the patient's insurance carrier. In such cases, we provide the patient with sufficient drugs and services to last until the next business day, when the patient's insurance coverage can be verified.

Sales and Marketing

        Our sales and marketing efforts focus on three primary objectives: (1) building new relationships and expanding existing contracts with managed care organizations and other payors or pharmacy benefit managers; (2) establishing, maintaining and strengthening relationships with key opinion leaders, physicians and other prescribers; and (3) maintaining existing and developing new relationships with pharmaceutical manufacturers to gain distribution access as they release new products or improved products. Our national and regional sales directors focus primarily on establishing and expanding our contracts with managed care organizations, while our local account managers focus on maximizing value from these contracts by developing and maintaining relationships with local and regional referral sources, such as physicians, hospital discharge planners, other hospital personnel, health maintenance organizations, preferred provider organizations or other managed care organizations, and insurance companies. In addition, we have a dedicated sales force, through a combination of internal and external team members for scalability and efficiency, focused on maintaining and expanding our relationships with biotechnology drug manufacturers to establish our position as an exclusive, semi-exclusive or participating provider.

Information Technology

        Our information technology centers around a custom-developed scalable patient care system that provides real-time prescription and patient care status to us, prescribers and contracted partners. Our technology allows us to track and report industry standard metrics on call centers, dispensing, adherence, length of therapy, and persistency. We can also provide HIPAA compliant reports that contain inventory data, prescription status, persistency, compliance, discontinuation, and payor data. In addition to reporting on patient and prescriber demographics, turnaround times, spend, and error reporting, we can also report on patient assessment data, clinical status, and other monitoring parameters. We have invested significantly in information technology in recent years to position us to improve cost efficiencies among us and our constituents and to provide additional services regarding the de-identified data we accumulate to take greater advantage of our relationships with data-driven pharmaceutical manufacturers. We also use an off-the-shelf pharmacy software system for purposes of transmitting claims to payors.

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Competition

        There are a significant number of competitors that distribute specialty pharmacy drugs and provide related services, some of which have greater resources than we do. Our competitors include: pharmacy benefit managers; retail pharmacy chains and independent retail pharmacies; health plans; national, regional and niche specialty pharmacies; specialty infusion therapy companies; physician practices and hospital systems; and group purchasing organizations. We believe that our singular focus on specialty pharmacy services allows us to more nimbly adapt to the needs of our constituents, while our size relative to other singularly focused specialty pharmacies will enable us to continue to be a leader among such entities.

        We are currently the largest independent specialty pharmacy and the fourth largest specialty pharmacy in the U.S. The three largest specialty pharmacies are Express Scripts, CVS Caremark and Walgreens. We understand that a number of other traditionally non-specialty pharmacies with significant resources are attempting to build, acquire or partner with specialty pharmacies due to the double-digit growth anticipated in spending on specialty prescription drugs compared to low to negative growth in spending on traditional prescription drugs. There are also many smaller specialty pharmacies and other entities in the healthcare industry that provide limited specialty pharmacy services that compete with us to a lesser extent. Some of these smaller entities, however, may be able to invest significant resources, through acquisition or otherwise, to compete with us on a larger scale.

        Many of the retail pharmacies to which we provide patient management services may in the future acquire a competing specialty pharmacy business or start their own specialty pharmacy business and thereby become our competitors. In addition, many of our pharmacy benefit management customers have their own specialty pharmacy businesses, and to the extent certain of our products can be obtained internally, these customers could cease doing business with us.

Governmental Regulation

        The healthcare industry is subject to extensive regulation by a number of governmental entities at the federal, state and local level. The industry is also subject to frequent regulatory change. Laws and regulations in the healthcare industry are extremely complex and, in many instances, the industry does not have the benefit of significant regulatory or judicial interpretation. Moreover, our business is impacted not only by those laws and regulations that are directly applicable to us but also by certain laws and regulations that are applicable to our managed care and other clients. If we fail to comply with the laws and regulations directly applicable to our business, we could suffer civil and/or criminal penalties, and we could be excluded from participating in Medicare, Medicaid and other federal and state healthcare programs, which would have an adverse impact on our business.

    Professional Licensure

        Pharmacists, nurses, and certain other healthcare professionals employed by us are required to be individually licensed or certified under applicable state law. We perform criminal, government exclusion and other background checks on employees and take steps to ensure that our employees possess all necessary licenses and certifications, and we believe that our employees comply in all material respects with applicable licensure laws.

    Pharmacy Licensing and Registration

        State laws require that each of our pharmacy locations be appropriately licensed and/or registered to dispense pharmaceuticals in that state. We are licensed in all states that require such licensure and believe that we substantially comply with all state licensing laws applicable to our business. Where required by law, we also have pharmacists licensed in all states in which we dispense.

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        Laws enforced by the U.S. Drug Enforcement Administration, as well as some similar state agencies, require our pharmacy locations to individually register in order to handle controlled substances, including prescription pharmaceuticals. A separate registration is required at each principal place of business where we dispense controlled substances. Federal and state laws also require that we follow specific labeling, reporting and record-keeping requirements for controlled substances. We maintain U.S. Drug Enforcement Administration registrations for each of our facilities that require such registration and follow procedures intended to comply with all applicable federal and state requirements regarding controlled substances.

    Food, Drug and Cosmetic Act

        Certain provisions of the federal Food, Drug and Cosmetic Act govern the handling and distribution of pharmaceutical products. This law exempts many pharmaceuticals and medical devices from federal labeling and packaging requirements as long as they are not adulterated or misbranded and are dispensed in accordance with and pursuant to a valid prescription. We believe that we comply with all applicable requirements.

    Fraud and Abuse Laws—Anti-Kickback Statute

        The federal Anti-Kickback Statute prohibits individuals and entities from knowingly and willfully paying, offering, receiving, or soliciting money or anything else of value in order to induce the referral of patients or to induce a person to purchase, lease, order, arrange for, or recommend services or goods covered by Medicare, Medicaid, or other government healthcare programs. The federal courts have held that an arrangement violates the Anti-Kickback Statute if any one purpose of the remuneration is to induce the referral of patients covered by the Medicare or Medicaid programs, even if another purpose of the payment is to compensate an individual for rendered services. The Anti-Kickback Statute is broad and potentially covers many standard business arrangements. Violations can lead to significant penalties, including criminal fines of up to $25,000 per violation and/or five years imprisonment, civil monetary penalties of up to $50,000 per violation plus treble damages, and/or exclusion from participation in Medicare, Medicaid, and other federal government healthcare programs. In an effort to clarify the conduct prohibited by the Anti-Kickback Statute, the Office of the Inspector General of the United States Department of Health and Human Services has published regulations that identify a limited number of safe harbors. Business arrangements that satisfy all of the elements of a safe harbor are immune from criminal enforcement or civil administrative actions. The Anti-Kickback Statute is an intent based statute and the failure of a business relationship to satisfy all of the elements of a safe harbor does not in and of itself mean that the business relationship violates the Anti-Kickback Statute. The Office of the Inspector General, in its commentary to the safe harbor regulations, has recognized that many business arrangements that do not satisfy a safe harbor nonetheless operate without the type of abuses the Anti-Kickback Statute is designed to prevent. We attempt to structure our business relationships to satisfy an applicable safe harbor. However, in those situations where a business relationship does not fully satisfy the elements of a safe harbor, or where no safe harbor exists, we attempt to satisfy as many elements of an applicable safe harbor as possible. The Office of the Inspector General is authorized to issue advisory opinions regarding the interpretation and applicability of the Anti-Kickback Statute, including whether an activity constitutes grounds for the imposition of civil or criminal sanctions. We have sought advisory opinions regarding future business relationships prior to execution, and may do so in the future.

        A number of states have statutes and regulations that prohibit the same general types of conduct as those prohibited by the Anti-Kickback Statute described above. Some state anti-fraud and anti-kickback laws apply only to goods and services covered by Medicaid. Other state anti-fraud and anti-kickback laws apply to all healthcare goods and services, regardless of whether the source of payment is governmental or private. Where applicable, we attempt to structure our business relationships to comply with these statutes.

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    Fraud and Abuse Laws—False Claims Act

        We are subject to state and federal laws that govern the submission of claims for reimbursement. These laws generally prohibit an individual or entity from knowingly and willfully presenting a claim or causing a claim to be presented for payment from a federal healthcare program that is false or fraudulent. The standard for "knowing and willful" may include conduct that amounts to a reckless disregard for the accuracy of information presented to payors. Penalties under these statutes include substantial civil and criminal fines, exclusion from the Medicare or Medicaid programs and imprisonment. One of the most prominent of these laws is the federal False Claims Act, which may be enforced by the federal government directly or by a private plaintiff by filing a qui tam lawsuit on the government's behalf. Under the False Claims Act, the government and private plaintiffs, if any, may recover monetary penalties in the amount of $5,500 to $11,000 per false claim, as well as an amount equal to three times the amount of damages sustained by the government as a result of the false claim. A number of states, including states in which we operate, have adopted their own false claims statutes as well as statutes that allow individuals to bring qui tam actions. In recent years, federal and state government authorities have launched several initiatives aimed at uncovering practices that violate false claims or fraudulent billing laws, and they have conducted numerous investigations of pharmaceutical manufacturers, PBMs, pharmacies and health care providers with respect to false claims, fraudulent billing and related matters. We believe that we have procedures in place to ensure the accuracy of our claims.

    Ethics in Patient Referrals Law (Stark Law)

        The federal Stark Law generally prohibits a physician from making referrals for certain Designated Health Services, reimbursable by Medicare or Medicaid, to entities with which the physician or an immediate family member has a financial relationship, unless an exception applies. A financial relationship is generally defined as an ownership, investment or compensation relationship. Designated Health Services' regulations include, but are not limited to, outpatient pharmaceuticals, parenteral and enteral nutrition products, home health services, durable medical equipment, physical and occupational therapy services, and inpatient and outpatient hospital services. Among other sanctions, a civil monetary penalty of up to $15,000 may be imposed for each bill or claim for a service a person knows or should know is for a service for which payment may not be made due to the Stark Law. Such persons or entities are also subject to exclusion from the Medicare and Medicaid programs. Any person or entity participating in a circumvention scheme to avoid the referral prohibitions is liable for a civil monetary penalty of up to $100,000. A $10,000 fine may be imposed for failure to comply with reporting requirements regarding an entity's ownership, investment and compensation arrangements for each day for which reporting is required to have been made under the Stark Law.

        The Stark Law exempts certain business relationships that meet its exception requirements. However, unlike the Anti-Kickback Statute under which an activity may fall outside a safe harbor and still be lawful, a referral for Designated Health Services that does not fall within an exception is strictly prohibited by the Stark Law. We attempt to structure all of our relationships with physicians who make referrals to us in compliance with an applicable exception to the Stark Law.

        In addition to the Stark Law, many of the states in which we operate have comparable restrictions on the ability of physicians to refer patients for certain services to entities with which they have a financial relationship. Certain of these state statutes mirror the Stark Law while others may be more restrictive. We attempt to structure all of our business relationships with physicians to comply with any applicable state self-referral laws.

    HIPAA and Other Privacy and Confidentiality Legislation

        Our activities involve the receipt, use and disclosure of confidential health information, including disclosure of the confidential information to a customer's health benefit plan, as permitted in accordance with applicable federal and state privacy laws. In addition, we use and disclose de-identified data for analytical and other purposes. Many state laws restrict the use and disclosure of confidential medical information, and similar new legislative and regulatory initiatives are underway at the state and federal level.

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        HIPAA imposes extensive requirements on the way in which healthcare providers that engage in certain actions covered by HIPAA, and healthcare clearinghouses (known as "covered entities") and the persons or entities that create, receive, maintain, or transmit protected health information ("PHI") to provide services to covered entities or to perform functions on their behalf (known as "business associates"), use, disclose and safeguard PHI, including requirements to protect the integrity, availability and confidentiality of electronic PHI. Many of these obligations were expanded under HITECH, passed as part of the American Recovery and Reinvestment Act of 2009. In January 2013, the Office for Civil Rights of HHS issued a final rule under HITECH that makes significant changes to the privacy, security, breach notification and enforcement regulations promulgated under HIPAA (the "Final Omnibus Rule"), and which generally took effect in September 2013. The Final Omnibus Rule enhances individual privacy protections, provides individuals new rights to their health information and strengthens the government's ability to enforce HIPAA.

        The privacy regulations (the "Privacy Rule") issued by the Office of Civil Rights pursuant to HIPAA give individuals the right to know how their PHI is used and disclosed, as well as the right to access, amend and obtain information concerning certain disclosures of PHI. Covered entities, such as pharmacies and health plans, are required to provide a written Notice of Privacy Practices to individuals that describes how the entity uses and discloses PHI, and how individuals may exercise their rights with respect to their PHI. For most uses and disclosures of PHI other than for treatment, payment, healthcare operations, and certain public policy purposes, HIPAA generally requires that covered entities obtain a valid written individual authorization. In most cases, use or disclosure of PHI must be limited to the minimum necessary to achieve the purpose of the use or disclosure. The Final Omnibus Rule modifies the content of Notice of Privacy Practices in significant ways, requiring, among other things, statements informing individuals of their rights to receive notifications of any breaches of unsecured PHI and to restrict disclosures of PHI to a health plan where the individual pays out of pocket.

        We are a covered entity under HIPAA in connection with our operation of specialty service pharmacies. To the extent that we provide services other than as a covered entity and we perform a function or activity, or provide a service to, a covered entity that involves PHI, the covered entity may be required to enter into a business associate agreement with us. Business associate agreements mandated by the Privacy Rule create a contractual obligation for us, as a business associate, to perform our duties for the applicable covered entity in compliance with the Privacy Rule. In addition, HITECH subjects us to certain aspects of the Privacy Rule and the HIPAA security regulations when we act as a business associate, including imposing direct liability on business associates for impermissible uses and disclosures of PHI and the failure to disclose PHI to the covered entity, the individual or the individual's designee (as specified in the business associate agreement), as necessary to satisfy a covered entity's obligations with respect to an individual's request for an electronic copy of PHI. The Final Omnibus Rule also extends the business associate provisions of the HIPAA Rules to subcontractors where the function, activity, or service delegated by the business associate to the subcontractor involves the creation, receipt, maintenance, or transmission of PHI. As such, business associates are required to enter into business associate agreements with subcontractors for services involving access to PHI and may be subject to civil monetary penalties for the acts and omissions of their subcontractors.

        Importantly, the Final Omnibus Rule greatly expands the types of product- and service-related communications to patients or enrollees that will require individual authorizations by requiring individual authorization for all treatment and health care operations communications where the covered entity receives payment in exchange for the communication from or on behalf of a third-party whose product or service is being described. While the Office of Civil Rights has established limited exceptions to this rule where individual authorization is not required, the marketing provisions finalized in the Final Omnibus Rule could potentially have an adverse impact on our business and revenues.

        If we fail to comply with HIPAA or our policies and procedures are not sufficient to prevent the unauthorized disclosure of PHI, we could be subject to liability, fines and lawsuits under federal and

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state privacy laws, consumer protection statutes and other laws. Criminal penalties and civil sanctions may be imposed for failing to comply with HIPAA standards either as a covered entity or business associate, and these penalties and sanctions have significantly increased under HITECH. In addition to imposing potential monetary penalties, HITECH also requires the Office of Civil Rights to conduct periodic compliance audits and empowers state attorneys general to bring actions in federal court for violations of HIPAA on behalf of state residents harmed by such violations. Several such actions have already been brought against both covered entities and at least one business associate, and continued enforcement actions are likely to occur in the future.

        The transactions and code sets regulation promulgated under HIPAA requires that all covered entities that engage in certain electronic transactions, directly or through a third-party agent, use standardized formats and code sets. We, in our role as a business associate of a covered entity, must conduct such transactions in accordance with such transaction rule and related regulations that require the use of operating rules in connection with HIPAA transactions. We, in our role as a specialty pharmacy operator, must also conduct such transactions in accordance with such regulations or engage a clearinghouse to process their covered transactions. HHS promulgated a National Provider Identifiers ("NPI") Final Rule which requires covered entities to utilize NPIs in all standard transactions. NPIs replaced NABP numbers for pharmacies, Drug Enforcement Agency numbers for physicians and similar identifiers for other health care providers for purposes of identifying providers in connection with HIPAA standard transactions. Covered entities may be excluded from federal health care programs for violating the Transaction Rule.

        The security regulations issued pursuant to HIPAA mandate the use of administrative, physical and technical safeguards to protect the confidentiality of electronic PHI. Such security rules apply to covered entities and business associates.

        We must also comply with the "breach notification" regulations, which implement provisions of HITECH. In the case of a breach of "unsecured PHI," covered entities must promptly notify affected individuals and the HHS Secretary, as well as the media in cases where a breach affects more than 500 individuals. Breaches affecting fewer than 500 individuals must be reported to the HHS Secretary on an annual basis. The regulations also require business associates of covered entities to notify the covered entity of such breaches by the business associate.

        Final regulations governing the accounting of disclosures are forthcoming. The applicable proposed rule, if finalized, would require covered entities to develop systems to monitor and record (1) which of their employees and business associates access an individual's electronic PHI contained in a designated record set, (2) the time and date access occurs, and (3) the action taken during the access session (e.g., modification, deletion, viewing). The final regulations could impose significant burdens on covered entities and business associates.

        The Health Care Reform Laws require the Secretary of HHS to develop new health information technology standards that could require changes to our existing software products. For example, the statute requires the establishment of interoperable standards and protocols to facilitate electronic enrollment of individuals in federal and state health and human services programs and provides the government with authority to require incorporation of these standards and protocols in health information technology investments as a condition of receiving federal funds for such investments.

        Pursuant to HIPAA, state laws that are more protective of PHI are not pre-empted. Therefore, to the extent states continue to enact more protective legislation, we could be required to make significant changes to our business operations. In addition, independent of any regulatory restrictions, individual health plan clients could increase limitations on our use of medical information, which could prevent us from offering certain services.

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    Medicare Part D

        The Medicare Part D program, which makes prescription drug coverage available to eligible Medicare beneficiaries through private insurers, regulates all aspects of the provision of Medicare drug coverage, including enrollment, formularies, pharmacy networks, marketing, and claims processing. The Medicare Part D program has undergone significant legislative and regulatory changes since its inception, including changes made by ACA.

        In April 2012, CMS issued a rule that requires coverage other than basic prescription drug coverage offered through Medicare Part D employer group waiver plans to be included in the definition of "other health or prescription drug coverage," starting January 1, 2014. CMS has clarified that, because the supplemental benefits primarily reduce cost sharing on claims covered under the basic benefit, they will continue as a practical matter to be subject to the Medicare Part D rules.

        Medicare Part D continues to attract a high degree of legislative and regulatory scrutiny, and the applicable government rules and regulations continue to evolve. CMS sanctions for non-compliance may include suspension of enrollment and even termination from the program. CMS has imposed restrictions and consent requirements for automatic prescription delivery programs, further limited the circumstances under which Medicare Part D plans may recoup payments to pharmacies for claims that are subsequently determined not payable under Medicare Part D and is expected to issue a proposed regulation that may limit the ability of Medicare Part D plans to establish preferred pharmacy networks. Accordingly, it is possible that legislative and regulatory developments and regulatory oversight could materially affect our Medicare Part D business or profitability.

    Health Reform Legislation

        Congress passed major health reform legislation, including the Patient Protection and Affordable Care Act in 2010, referred to in this document as ACA. This legislation affects virtually every aspect of health care in the country. In addition to establishing the framework for every individual to have health coverage beginning in 2014, ACA enacted a number of significant health care reforms. While not all of these reforms affect our business directly, many affect the coverage and plan designs that are or will be provided by many of our health plan clients. As a result, these reforms could indirectly impact many of our services and business practices, and, in many other cases, directly impact our services and business practices. Given that many of the regulations implementing ACA are still being finalized and that ongoing sub-regulatory guidance is still being issued, there is considerable uncertainty as to its full impact on our Company.

    Managed Care Reform

        In addition to health reforms enacted by ACA, proposed legislation has been considered at the state level, and legislation has been enacted in several states, aimed primarily at providing additional rights and access to drugs to individuals enrolled in managed care plans. This legislation may impact the design and implementation of prescription drug benefit plans sponsored by our PBM health plan clients and/or the services we provide to them. Both the scope of the managed care reform proposals considered by state legislatures and reforms enacted by states to date vary greatly, and the scope of future legislation that may be enacted is uncertain.

Accreditations

        We have and maintain the following accreditations:

    Accreditation Commission for Health Care .  We hold both a pharmacy infusion and a DMEPOS accreditation, effective July 21, 2011 from the Accreditation Commission for Health Care. Under such accreditation, the Accreditation Commission for Health Care reviews and assesses our activities as a pharmacy and a DMEPOS supplier for external infusion pumps and supplies. Areas of focus include infusion pharmacy business, infusion pharmacy continuum of care,

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      intravenous drug mixture preparation, administration, therapy monitoring, and client/patient counseling and education, among other aspects of our business.

    American Society of Health-System Pharmacists .  We hold a post-graduate year one pharmacy residency accreditation effective as of June 20, 2012 from the American Society of Health-System Pharmacists. The American Society of Health-System Pharmacists reviews and evaluates our residency training program against established criteria to ensure the pharmacy residents are properly trained. The American Society of Health-System Pharmacists is a nationally recognized non-profit pharmacy association that has been accrediting pharmacy residency programs for over 50 years.

    URAC.   As of January 1, 2013, we received our URAC specialty pharmacy accreditation, a nationally recognized and rigorous accreditation that includes a thorough review of documentation, an on-site survey for verifying compliance standards, and final review by the URAC Accreditation and executive committees.

    National Association of Boards of Pharmacy .  Effective May 13, 2013 we are a verified-accredited wholesale distributor. This accreditation is designed for compliance with state and federal laws, and for purposes of preventing counterfeit drugs from entering into the United States, and to protect patients from below quality drug distribution by employing security and best practice standards for wholesale drug distribution. Effective July 23, 2012, we became a National Association of Boards of Pharmacy accredited DMEPOS provider, and we have submitted our application to become a verified internet pharmacy practice site with the National Association of Boards of Pharmacy.

Intellectual Property

        We rely on a combination of copyright, trademark and trade secret laws, in addition to contractual restrictions, to establish and protect our proprietary rights. We have registered and/or applied to register a variety of our trademarks and service marks used throughout our business. DIPLOMAT SPECIALTY PHARMACY® and DIPLOMAT®, among others, are service marks registered with the U.S. Patent Trademark Office. We believe that our trade names are becoming increasingly recognized by many referral sources as representing a reliable, cost-effective source of specialty pharmacy services. We are not aware of any facts that could materially impact our continuing use of any of our intellectual property.

Properties

        We own a 550,000 square foot distribution facility in Flint, Michigan, which also contains our corporate headquarters. We currently utilize approximately 40% of our main distribution facility and corporate headquarters, which provides us with significant capacity to execute our long term growth plan without significant additional capital expenditures.

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        The following table lists information regarding each of our properties:

Location
  Total Square
Footage
  Facility Description   Owned/Leased

Flint, Michigan

    550,000   Headquarters and main distribution facility   Owned

Flint, Michigan

    7,000   Specialty and retail pharmacy   Owned

Flint, Michigan

    10,366   Specialty and wholesale pharmacy   Owned

Grand Rapids, Michigan

    12,000   Retail pharmacy   Leased (expires December 31, 2014)

Enfield, Connecticut

    4,664   Specialty pharmacy   Leased (expires December 17, 2018)

Ft. Lauderdale, Florida

    2,665   Specialty and retail pharmacy   Leased (expires March 31, 2015)

West Springfield, Massachusetts

    1,273   Specialty and retail pharmacy and office space   Leased (expires February 28, 2016)

Ontario, California

    5,790   Specialty pharmacy   Leased (expires March 15, 2017)

Buffalo Grove, Illinois

    3,408   Specialty pharmacy   Leased (expires May 31, 2016)

Raleigh, North Carolina

    6,032   MedPro headquarters   Leased (expires June 30, 2019)

Raleigh, North Carolina

    4,061   Specialty pharmacy and office space   Leased (expires December 31, 2016)

        In addition to the facilities listed above, we also own office facilities located in Swartz Creek, Michigan, which was formerly the site of our headquarters. The buildings consist of approximately 49,500 square feet, which is currently leased at approximately 50% capacity to various tenants. MedPro also leases an additional 13 small facilities for use as specialty infusion suites.

Legal Proceedings

        Our business of providing specialized pharmacy services and other related services may subject us to litigation and liability for damages in the ordinary course of business. Although the results of litigation and claims cannot be predicted, as of the date of this prospectus, we do not believe we are party to any claim or litigation, the outcome of which, if determined adversely to us, would individually or in the aggregate be reasonably expected to have a material adverse effect on our business. Regardless of the outcome, litigation can have an adverse impact on us because of defense, insurance deductible and settlement costs, diversion of management resources and other factors.

        We currently maintain insurance for general and professional liability claims. These policies provide coverage on a claims-made or occurrence basis and have certain exclusions from coverage. These insurance policies generally must be renewed annually. We cannot assure you that our insurance coverage will be adequate to cover liability claims that may be asserted against us. In addition, we carry property insurance coverage for the value of the physical assets, including drugs inventory, at all of our owned and leased facilities These policies, which generally must be renewed annually, also include coverage for business interruption. While we believe our coverage to be sufficient, we cannot assure you that our property insurance coverage will be adequate to cover any and all property losses that we may suffer.

Employees

        As of June 30, 2014, we employed 924 persons on a full-time basis and 54 persons on a part-time basis. In addition, of our employees, 307 were corporate personnel and the remaining 671 were clinically focused. The majority of our part-time employees are clinicians due to the nature and timing of the services we provide. None of our employees are covered by collective bargaining agreements. MedPro, which we recently acquired, employed an additional 34 persons on a full-time basis and 6 persons on a part-time basis, as of June 30, 2014.

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MANAGEMENT

Executive Officers and Directors

        The following table sets forth information regarding our executive officers and directors (ages as of June 30, 2014):

Name
  Age   Position

Philip R. Hagerman

    62   Chief Executive Officer, Chairman of the Board of Directors

Sean M. Whelan

    43   Chief Financial Officer, Secretary/Treasurer, Director

Gary W. Kadlec

    66   President, Director

Jeffrey M. Rowe

    58   Executive Vice President—Operations, Director

Atheer A. Kaddis

    46   Senior Vice President—Sales & Business Development, Director

        Set forth below are the biographies of the executive officers and directors, which describe their business experience during at least the past five years, as well as a discussion of the specific experience, qualifications, attributes and skills that led to the Board's conclusion that each director should continue to serve on the Board.

         Philip R. Hagerman , RPh, has served as our Chief Executive Officer, a director and the Chairman of the Board of Directors since 1991. Mr. Hagerman co-founded the Company with his father in 1975.

        Mr. Hagerman has led the Company as its principal executive officer, Chairman of the Board of Directors and a director for approximately 22 years. He has a unique perspective and understanding of our business, culture and history, having led the Company through many economic cycles and operational initiatives. His day-to-day leadership of the Company gives him critical insights into our operations, strategy and competition, and he facilitates the Board's ability to perform its oversight function. Throughout his career at the Company, he has demonstrated strong entrepreneurial skills, as well as regulatory, marketing, strategic, and operational expertise. Mr. Hagerman also possesses in-depth knowledge of, and key relationships in, the specialty pharmacy industry on a national basis.

         Sean M. Whelan , CPA, has served as our Chief Financial Officer since December 2010, our Secretary and Treasurer since January 2012, and a director since February 2012. Prior to joining Diplomat, from 2007 to 2010, he served as Chief Financial Officer of InfuSystem Holdings, Inc. (INFU), a publicly traded healthcare services company located in Madison Heights, Michigan. While there, Mr. Whelan played an instrumental role in ensuring InfuSystem's success in diverse areas such as profitable revenue growth, capital markets, debt raising, and acquisition and integration. He also oversaw the Information Technology and Human Resources organizations during periods of rapid growth. Prior to joining InfuSystem, from 1996 through 2007, Mr. Whelan held senior finance positions with Ford Motor Company, including service as accounting director for Automotive Components Holdings, LLC, a Ford subsidiary, where he had direct oversight, and financial and divestiture responsibility for the $5.0 billion entity.

        Mr. Whelan has demonstrated strong financial reporting, finance, accounting, strategic, and operational expertise. His day-to-day leadership of the Company gives him critical insights into our financial performance, operations and strategy, and he will facilitate the Audit Committee's ability to perform its oversight function. Further, his prior experience at both InfuSystem and Ford Motor Company provides him expertise with public company reporting responsibilities and complex corporate transactions, including mergers and acquisitions and capital market transactions.

         Gary W. Kadlec has served as our President since June 2012, and as a director of the Company since February 2013. From 2004 through 2007, Mr. Kadlec was the Chief Operating Officer, and from 2007 to 2011, the Chief Executive Officer and President, of excelleRx, an Omnicare company based in Philadelphia, Pennsylvania, specializing in medication therapy management. Mr. Kadlec fulfilled a one-year non-compete commitment to excelleRx/Omnicare before joining Diplomat. Prior to his time at

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excelleRx, Mr. Kadlec served as President of Specialized Pharmacy Services in Livonia, Michigan, from 1976 until it was acquired by Omnicare, Inc. in 1995. Mr. Kadlec then served as Regional and then Senior Regional Vice President of Omnicare until 2004.

        Mr. Kadlec's day-to-day leadership of the Company gives him critical insights into our operations, clinical services, managed care, new business development, and sales and marketing divisions. He has demonstrated strong regulatory, marketing, strategic, and operational expertise and he possesses in-depth knowledge of, and key relationships in, the specialty pharmacy industry on a national basis.

         Jeffrey M. Rowe , RPh, has served as our Executive Vice President, Operations, since 2012. Prior to that Mr. Rowe served as Vice President of Operations since 2006 and as a director of the Company since 2005. Mr. Rowe joined Diplomat in 1993 as a staff pharmacist concentrating on building the Company's compounding and complementary services. He served as our Pharmacy Manager from 1997 to 2006. Before joining Diplomat, Mr. Rowe owned two successful independent pharmacies.

        Mr. Rowe's day-to-day involvement in the Company's operations gives him critical insights into fundamental aspects of the Company's business, including accreditation, contracting and regulation. His broad range of knowledge includes diabetes, asthma, and other areas of disease state management, and he has expertise in the fields of compounding custom medications and complementary medicine, making him a key contributor to the Company's growth and success.

         Atheer A. Kaddis , PharmD, has served as our Senior Vice President, Sales and Business Development, since July 2012, and as a director of the Company since February 2013. Dr. Kaddis previously served as the Company's Vice President, Managed Markets, from October 2007 to July 2012. Before joining Diplomat, from April 2000 to October 2007, Dr. Kaddis served as Director of Pharmacy Services Clinical at Blue Cross Blue Shield of Michigan, where his responsibilities included formulary development, clinical program development, utilization management programs, specialty pharmacy programs, and pay for performance programs. His other prior experience includes service as a staff pharmacist at William Beaumont Hospital, a clinical oncology specialist at Grace Hospital, a Clinical Program Manager for the Ford Motor Company account at Blue Cross Blue Shield of Michigan and an Associate Director in Clinical Account Management at Merck-Medco (now part of Express Scripts).

        Dr. Kaddis has demonstrated strong sales and business development expertise. In his current role, Dr. Kaddis leads coordination of our strategies within these business units, giving him critical insights into operational efficiencies and areas of high growth potential. Further, he possesses in-depth knowledge of, and key relationships in, the specialty pharmacy industry on a national basis.

Board Composition

        Our board of directors currently consists of five directors, all of whom currently serve as executive officers of Diplomat.         and        have agreed to become members of the board of directors upon the completion of this offering.

        Upon the completion of this offering, members of the Hagerman family will control approximately        % of the total voting power of our outstanding common stock, assuming no exercise by the underwriters of their option to purchase additional shares of common stock in this offering. As a result, we will be considered a "controlled company" under the corporate governance listing standards of the                 . As a controlled company, we will be exempt from the obligation to comply with certain                corporate governance requirements, including the following:

    that a majority of our board of directors consists of "independent directors", as defined under the rules of the             ;

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    that we have a nominating and corporate governance committee that is composed entirely of independent directors with a written charter addressing the committee's purpose and responsibilities;

    that we have a compensation committee that is composed entirely of independent directors with a written charter addressing the committee's purpose and responsibilities; and

    that there be an annual performance evaluation of our nominating and corporate governance committee and compensation committee.

        These exemptions do not modify the independence requirements for our audit committee, and we intend to comply with the applicable requirements of the Sarbanes-Oxley Act and rules with respect to our audit committee within the applicable time frame.

    Director Independence

        All of our current directors are employees of Diplomat and therefore are not independent. Our board of directors has determined that each of            and            is an independent director within the meaning of the applicable rules of the SEC and the                , and that each of them is also an independent director under Rule 10A-3 of the Exchange Act for the purpose of audit committee membership. We will rely on the phase-in rules of the SEC and            that require all audit committee members to be independent within one year of the effectiveness of the registration statement of which this prospectus forms a part.

    Staggered Board

        Effective upon the completion of this offering, the Board will be divided into three staggered classes of directors of the same or nearly the same number and each director will be assigned to one of the three classes. Prior to the completion of the offering, Class I directors will be elected for a one-year term, Class II directors for a two-year term and Class III directors for a three-year term. At each succeeding annual meeting of shareholders, commencing in        , successors to the class of directors whose term expires at that annual meeting will be elected for a three-year term.

    Our Class I directors will be        and        ;

    Our Class II directors will be        and        ; and

    Our Class III directors will be        ,         and        .

        Our amended and restated articles of incorporation and bylaws, which will be effective upon the completion of this offering, provide that the number of our directors shall be fixed from time to time by the Board. Any additional directorships resulting from an increase in the number of directors will be distributed among the three classes so that, as nearly as possible, each class shall consist of one-third of the Board.

        The division of our Board into three classes with staggered three-year terms may delay or prevent shareholder efforts to effect a change of our management or a change in control. See "Description of Capital Stock—Anti-Takeover Effects of Certain Provisions of Our Amended and Restated Articles of Incorporation and Bylaws and Michigan Law" and "Risk Factors—Risks Related to this Offering and Ownership of Our Common Stock—Certain provisions of our corporate governance documents and Michigan law could discourage, delay or prevent a merger or acquisition at a premium price."

Board Leadership Structure

        Our Board is, and will be upon completion of the offering, led by Philip Hagerman, our Chief Executive Officer, a director and the Chairman of the Board of Directors since he co-founded us with

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his father in 1975. The Board believes this structure permits a unified strategic vision for us that ensures appropriate alignment between the Board and management and provides clear leadership for us, especially since we will continue to be a "controlled company" upon completion of the offering. The Board does not utilize a lead independent director. Although the Board recognizes the increasing utilization of Non-Executive Chairmen and lead directors in many public companies, the Board believes its current leadership structure is most appropriate for us now and upon completion of the offering and best serves our shareholders. There is no "one size fits all" approach to ensuring independent leadership. The Board believes that its independent directors, when appointed, will provide significant independent leadership and direction. Within 90 days of the offering, independent directors will consist of a majority of the Audit Committee, which will oversee the integrity of our financial statements. Upon completion of the offering, we expect the independent directors will also meet regularly in executive session at Board and committee meetings, and they will have access to independent advisors as they deem appropriate.

Board's Role in Risk Oversight

        Upon completion of the offering, we intend that the Board will oversee our risk management primarily through the following:

    the Board's review and approval of management's annual business plan, and review of management's longer-term strategic and liquidity plans;

    the Board's review, on at least a quarterly basis, of business developments, strategic plans and implementation, liquidity and financial results;

    the Board's oversight of succession planning;

    the Board's oversight of capital spending and financings, as well as mergers, acquisitions and divestitures;

    the Audit Committee's oversight of our significant financial risk exposures (including credit, liquidity and legal, regulatory and other contingencies), accounting and financial reporting, disclosure control and internal control processes, the internal audit function (if any), and the legal, regulatory and ethical compliance functions;

    the Board or separate committee's oversight of Board structure, our governance policies and the self-evaluation assessments conducted by the Board and committees;

    the Compensation Committee's review and approvals regarding executive officer compensation and its alignment with our business and strategic plans, and the review of compensation plans generally and the related incentives, risks and risk mitigants; and

    Board and audit committee executive sessions consisting of the independent directors.

Committees of the Board of Directors

        Our Board and intends to establish an Audit Committee and Compensation Committee prior to completion of the offering. Due to our "controlled company" status, our Board will continue to carry out the duties and responsibilities normally carried out by a nominating and corporate governance committee, including identifying and nominating directors to serve on the Board, overseeing corporate governance policies and governance disclosures, and reviewing the composition, organization, function and performance of the Board and its committees. Copies of each committee's charter will be posted on our website, www.diplomat.is, upon completion of this offering. Our Board may from time to time establish other committees.

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Audit Committee

        The Audit Committee's responsibilities will include:

    providing general oversight of our financial reporting and internal control functions;

    reviewing our reports filed with or furnished to the SEC that include financial statements or results;

    monitoring compliance with significant legal and regulatory requirements and other risks related to financial reporting and internal control; and

    the appointment, retention, compensation and oversight of the work of our independent registered public accounting firm, currently BDO USA, LLP, and any third-party consultant that assists us regarding internal audit functions.

        The Board has further determined that        qualifies as "audit committee financial expert" in accordance with SEC rules. The designation of an "audit committee financial expert" does not impose upon such persons any duties, obligations or liability that are greater than those which are generally imposed on each of them as a member of the committee and the Board, and such designation does not affect the duties, obligations or liability of any other member of the committee or the Board.

Compensation Committee

        The Compensation Committee's responsibilities will include:

    administering the compensation programs for our executive officers and non-employee directors, including monitoring compensation trends, establishing the goals and policies of the compensation programs, and approving the compensation structure and amounts that may be earned thereunder;

    recommending or approving equity grants and otherwise administering share-based plans, as well as other benefit plans and policies, to the extent delegated by the Board;

    reviewing our compensation policies and practices for all employees, at least annually, regarding risk-taking incentives and risk management policies and practices;

    reviewing certain compensation disclosures and proposals in our proxy statement and other reports filed with or furnished to the SEC; and

    the appointment, retention, compensation and oversight of the work of any compensation consultant it engages.

Director Compensation

        Directors who are also our employees receive no additional compensation for serving as a director. In 2013, our Board consisted solely of employee directors.

Code of Business Conduct and Ethics

        Our board of directors will adopt a written code of business conduct and ethics for our Company, effective upon completion of this offering, applicable to all of our employees, officers, directors and consultants, including our principal executive, financial and accounting officers and all persons performing similar functions. A copy of this code will be available on our website at www.diplomat.is upon the completion of this offering.

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EXECUTIVE COMPENSATION

Compensation Discussion and Analysis

        This section explains our compensation philosophy, objectives and design, our compensation-setting process and our executive compensation program components, as well as the decisions made in 2013 for each of our named executive officers. This section also provides certain other information as additional context for the named executive officer compensation tables that follow.

        Our named executive officers for 2013 were Philip R. Hagerman, our Chief Executive Officer; Sean M. Whelan, our Chief Financial Officer; Gary W. Kadlec, our President; Atheer A. Kaddis, our Senior Vice President, Sales and Business Development; and Jeffrey M. Rowe, our Executive Vice President, Operations (collectively, our "named executive officers").

    Named Executive Officer Compensation Philosophy, Objectives and Design

        Our named executive officer compensation program has been designed to reward, attract and retain the management deemed essential to ensure our success. The program seeks to align compensation with our short- and long-term objectives, business strategy, financial performance and Company values. In furtherance of such philosophy, our compensation objectives for the named executive officers are designed to:

    reward executives who consistently perform above expectations and are proficient in their roles with higher base pay and/or total compensation opportunity compared to Company salary range guidelines;

    link pay to performance to create incentives for our named executive officers to perform their duties at a high level; and

    grant equity awards to align long-term interests with those of our shareholders, to reward long-term performance and to assist retention.

    Compensation-Setting Process

        Unless otherwise stated, the discussion and analysis below is substantially based on decisions made by our Chief Executive Officer, in consultation with certain members of management, including our Chief Financial Officer, our President, our Executive V.P. and our General Counsel. Members of management often utilized market survey data to advise on reasonable base salary range guidelines; however, they did not engage in market or industry benchmarking in fiscal year 2013 with respect to the compensation of the NEOs.

        The compensation committee of the Board of Directors was formed in                , 2014, and it held its first meeting in                , 2014. Because the compensation committee was recently formed, its members have only recently begun to discuss our overall named executive officer compensation philosophy and related matters. Therefore, the philosophy of how we will compensate our named executive officers in the future may not be the same as how they have been compensated in prior periods, including 2013. In addition, the objectives, design and payouts of our named executive officer compensation program following this offering may, over time, vary significantly from our historical practices.

        Compensation determinations for the named executive officers for 2014 have generally been completed based on historical practice. Therefore, the compensation committee solely will be responsible for reviewing the achievement of performance-based measures for the 2014 bonus plan and approving payouts to the named executive officers in accordance with such program, as well as reviewing and approving the discretionary bonus component of the 2014 bonus plan. Beginning with the 2015 compensation program for named executive officers, the compensation committee will review,

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evaluate and modify the named executive officer compensation framework as a result of our becoming a publicly traded company after this offering. The compensation committee has appointed                 as its compensation consultant for the 2015 compensation program for named executive officers.

    Named Executive Officer Compensation Program Components in 2013

        For 2013, our executive compensation program was comprised of the following components:

    Base Salary

        We pay our executive officers an annual base salary in cash. We believe that payment of a fixed, base level of compensation enables us to attract and retain employees in a competitive market and preserves an employee's commitment during economic and/or industry downturns. Generally, we aim to set executive base salaries near the middle of the range of salaries that we have observed for executives in similar positions and with similar responsibilities. Base salaries are reviewed annually and adjusted from time to time to reflect individual responsibilities, performance and experience, as well as market compensation levels. Changes in base salary are generally effective in March each year.

        The base salaries of our named executive officers from March to December 2013 were as follows: $350,000 for Mr. Hagerman; $251,760 for Mr. Whelan; $257,146 for Mr. Kadlec; $230,780 for Dr. Kaddis; and $236,025 for Mr. Rowe.

    Cash Bonuses

        We adopted the 2013 Employee Annual Bonus Plan (the "bonus plan") in order to reward the performance of our employees, including certain of our named executive officers, in achieving our financial and strategic objectives.

        Under the bonus plan, a participant's bonus target is set forth as a percentage of base salary. For 2013, Messrs. Whelan, Kaddis and Kadlec had a bonus target of 25%, 25% and 30% of base salary, respectively. Consistent with prior years, Messrs. Hagerman and Rowe did not participate in the 2013 bonus plan due to their significant equity ownership in Diplomat and the related shareholder distributions in 2013.

        For the participating named executive officers, 30%, 40% and 30% of the bonus target was based on achievement of a 2013 revenue performance measure, a 2013 EBITDA performance measure and a subjective individual performance, respectively.

        2013 Revenue Performance Component.     For 2013, we established that achievement of threshold, target and maximum performance would correspond to payouts of 50%, 100% and 110%, respectively, with linear increases between them. We established target and maximum performance achievement levels that were challenging and aggressive. In particular, the threshold, target and maximum amounts for 2013 revenue performance represented increases of approximately 20%, 41% and 55%, respectively, over actual 2012 revenue.

        Each of Messrs. Whelan, Kadlec and Kaddis earned an 84.18% payout of the 2013 revenue performance component.

        2013 EBITDA Performance Component.     For 2013, we established that achievement of threshold, target and maximum performance would correspond to payouts of 50%, 100% and 125%, respectively, with linear increases between them. We established target and maximum performance achievement levels that were challenging and aggressive. In particular, the threshold, target and maximum amounts for 2013 EBITDA performance represented increases of approximately 20%, 47% and 77%, respectively, over actual 2012 EBITDA.

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        Each of Messrs. Whelan, Kadlec and Kaddis earned a 113.83% payout of the 2013 EBITDA performance component.

        Individual Performance Component.     For 2013, we established that achievement of individual performance would correspond to payouts of 0%, 50%, 90% or 110%, respectively, dependent on achievement of performance scores. Each of Messrs. Whelan, Kadlec and Kaddis received a high individual performance grade, which resulted in a 110% payout of the individual performance component.

    Equity Incentive Program

        As a privately held company, we have granted options under the 2007 Option Plan to create appropriate long-term incentives for our key employees, to reward performance, and to assist retention. The option plan is further described below under the heading "—Stock Plans—2007 Option Plan." With limited exceptions, our option holders are parties to buy/sell agreements or employee securities agreements with us.

        In particular, options generally are time-vested over four years from grant date and are always subject to the optionee's continued employment through the applicable vesting dates. Option grants also help us motivate key personnel to exert maximum efforts on behalf of the Company since the exercise price for options granted under the plan is the fair market value of the underlying stock on the grant date, and therefore our equity value must increase (a benefit to all shareholders) before the options have any value.

        In 2013, we did not grant any stock options to our named executive officers. We determined that the then-current equity and option holdings of our named executive officers appropriately met our retention and incentive goals, and that no additional awards were necessary.

        Prior to completion of this offering, we plan to adopt the Diplomat Pharmacy, Inc. 2014 Omnibus Incentive Plan, which provides for the grant of stock options (incentive stock options and nonqualified stock options), restricted stock, restricted stock units, stock appreciation rights, performance awards (which may take the form of performance units or performance shares) and other stock and stock unit awards. The omnibus plan is further described below under the heading "—Stock Plans—2014 Omnibus Plan."

        We intend to adopt a formal policy regarding the timing of stock option grants and other equity awards in connection with this offering. Such policy will provide that our compensation committee will not grant equity awards in anticipation of the release of material nonpublic information and will continue to set the exercise price for stock options at an amount equal to at least the fair value of the underlying stock on the grant date.

    Other Benefits and Perquisites

        We design our employee benefits programs to be affordable and competitive in relation to the market, as well as compliant with applicable laws and practices. We adjust these programs as needed based upon regular monitoring of applicable laws and practices and the competitive market.

        We maintain a tax-qualified, 401(k) retirement plan (the "401(k) plan"), pursuant to which any full-time employee who meets certain length-of-service and age requirements may contribute a portion of the employee's compensation to the plan on a pre-tax basis. The 401(k) plan is designed to meet "safe harbor" guidelines to comply with the Internal Revenue Code's anti-discrimination rules. We provide for 100% matching of the employees' first 3% of participation, plus 50% of the employees' next 2% of participation. Our named executive officers participate in the 401(k) plan on the same basis as our other full-time employees.

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        Each named executive officer receives a car allowance, which is not available generally to all salaried employees. Otherwise, our named executive officers generally are entitled to participate in the same employee benefit plans on the same terms and conditions as all other full-time employees.

    Compensation Agreements with Employees

        As a privately-held company, we believe we have been able to develop competitive compensation packages to attract qualified candidates to fill our most critical positions without entering into written employment agreements. We do not intend to enter into written employment agreements with our named executive officers following completion of this offering, but may do so in the future.

    Clawback Policy

        We do not currently have a formal policy for recovery of amounts paid on the basis of financial results which are subsequently restated. Following completion of this offering, under the Sarbanes-Oxley Act, our Chief Executive Officer and our Chief Financial Officer will be required to forfeit incentive compensation paid on the basis of previously issued financial statements for which they were responsible and which have to be restated as a result of misconduct. In the future, we intend to implement a formal policy for recovery of incentive-based compensation paid to current and former executive officers in compliance with requirements of the Dodd-Frank Act and related rulemaking.

    Tax and Accounting Treatment

    Deductibility of Executive Compensation

        Because our common stock is not currently publicly traded, executive compensation has not been subject to the provisions of Section 162(m) of the Internal Revenue Code of 1986, as amended (the "Code"), which limits the deductibility of compensation paid to certain individuals to $1 million per year, excluding qualifying performance-based compensation and certain other compensation. Following this offering, at such time as we are subject to the deduction limitation under Section 162(m) of the Code, we expect that the compensation committee will consider the impact of Section 162(m) of the Code when structuring our executive compensation arrangements with our named executive officers. However, the compensation committee will retain flexibility to approve the compensation arrangements that promote the objectives of our compensation program but that may not qualify for full or partial tax deductibility.

    Taxation of "Parachute" Payments and Deferred Compensation

        We did not provide any named executive officer with a "gross-up" or other reimbursement payment for any tax liability that he might owe as a result of the application of Sections 280G, 4999, or 409A of the Code during 2013, and we have not agreed and are not otherwise obligated to provide any named executive officer with such a "gross-up" or other reimbursement. Sections 280G and 4999 of the Code provide that certain service providers who are officers, shareholders or highly compensated individuals may be subject to an excise tax if they receive payments or benefits in connection with a change in control that exceed certain prescribed limits, and that a company, or a successor, may forfeit a deduction on the amounts subject to this additional tax. Section 409A of the Code also imposes additional significant taxes on the individual in the event that an executive officer, director or other service provider receives "deferred compensation" that does not meet the requirements of Section 409A of the Code.

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Summary Compensation Table for 2013

        The table below summarizes the total compensation paid or earned by the named executive officers in 2013.

Name and Principal Position
  Year   Salary
($)
  Bonus
($)(1)
  Non-Equity
Incentive
Plan
Compensation
($)(1)
  All Other
Compensation
($)(2)
  Total
($)
 

Philip R. Hagerman
Chief Executive Officer

    2013     350,000             22,524     372,524  

Sean M. Whelan
Chief Financial Officer

   
2013
   
248,594
   
20,770
   
44,553
   
20,275
   
334,192
 

Gary W. Kadlec
President

   
2013
   
255,222
   
25,457
   
54,607
   
9,620
   
344,906
 

Atheer A. Kaddis
Senior Vice President, Sales and Business Development

   
2013
   
227,878
   
19,039
   
40,840
   
18,719
   
306,476
 

Jeffrey M. Rowe
Executive Vice President, Operations

   
2013
   
233,056
   
   
   
18,212
   
251,268
 

(1)
Amounts reflected in the "Bonus" column represent the discretionary portion of such person's cash bonus earned under the 2013 bonus plan, i.e. the portion related to individual performance measures. Amounts reflected in the "Non-Equity Incentive Plan Compensation" column represent the Company performance-based portion of such person's cash bonus earned under the 2013 bonus plan. In accordance with the 2013 bonus plan, payments of such amounts were made on April 10, 2014 and conditioned upon such person's continued employment through such date.

(2)
Includes: 401(k) matching contributions by the Company ($12,904 for Mr. Hagerman, $10,655 for Mr. Whelan, $0 for Mr. Kadlec, $9,099 for Dr. Kaddis, and $8,592 for Mr. Rowe); and car allowances ($9,620 for each named executive officer).

Grants of Plan-Based Awards in 2013

        The following table provides information about non-equity awards granted to certain of our named executive officers in 2013. We did not grant any equity awards to our named executive officers in 2013.

 
  Estimated Possible Payouts
Under Non-Equity Incentive
Plan Awards(1)
 
Name
  Threshold
($)
  Target
($)
  Maximum
($)
 

Sean M. Whelan

    22,029     44,058     52,240  

Gary W. Kadlec

    27,000     54,001     64,029  

Atheer A. Kaddis

    20,193     40,387     47,887  

(1)
Relates to possible cash payouts attributable to the company performance-based components of the 2013 bonus plan.

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Outstanding Equity Awards at December 31, 2013

        The table below sets forth certain information with respect to outstanding stock options held by certain of our named executive officers on December 31, 2013. All of the options in the table were granted under and pursuant to our 2007 Option Plan, described below under the heading "—Stock Plans—2007 Option Plan." Certain of the options disclosed in the table were redeemed by us in 2014, which is not reflected in the table below. The amounts below do not reflect the           for          stock split to be effected prior to the offering.

Name
  Grant Date   Number of
Securities
Underlying
Unexercised
Options
(#)
Exercisable
  Number of
Securities
Underlying
Unexercised
Options
(#)
Unexercisable
  Equity
Incentive Plan
Awards:
Number of
Securities
Underlying
Unexercised
Unearned
Options (#)
  Option
Exercise
Price
($)
  Option
Expiration
Date

Sean M. Whelan

  12/16/10(1)     39.000 (2)   13.000 (3)       32,191.39   12/16/20

  3/1/12(1)     11.375 (4)   34.125 (5)       36,486.01   3/1/22

Gary W. Kadlec

 

9/1/12(1)

   
11.375

(6)
 
34.125

(7)
 
   
36,373.90
 

9/1/22

  9/1/12(8)     11.375 (9)       34.125 (10)   36,373.90   9/1/22

Atheer A. Kaddis

 

3/1/08(1)

   
52.200

(11)
 
   
   
19,135.09
 

3/1/18

  4/1/09(1)     52.200 (12)           26,109.69   4/1/19

(1)
Vests 25% on each of the first, second, third and fourth anniversaries of the grant date.

(2)
Consists of option to acquire 1.87500 shares of Class A Voting Common Stock and 37.12500 shares of Class B Nonvoting Common Stock.

(3)
Consists of option to acquire 0.62500 shares of Class A Voting Common Stock and 12.37500 shares of Class B Nonvoting Common Stock.

(4)
Consists of option to acquire 0.56875 shares of Class A Voting Common Stock and 10.80625 shares of Class B Nonvoting Common Stock.

(5)
Consists of option to acquire 1.70625 shares of Class A Voting Common Stock and 32.41875 shares of Class B Nonvoting Common Stock.

(6)
Consists of option to acquire 0.56875 shares of Class A Voting Common Stock and 10.80625 shares of Class B Nonvoting Common Stock.

(7)
Consists of option to acquire 1.70625 shares of Class A Voting Common Stock and 32.41875 shares of Class B Nonvoting Common Stock.

(8)
Mr. Kadlec's performance-based option vests as follows: 25% upon the Company generating EBITDA of $30 million or sales of $1.5 billion in a calendar year (achieved in 2013); an additional 25% upon the Company generating EBITDA of $40 million or sales of $2 billion in a calendar year; and the remaining 50% upon the Company generating EBITDA of $50 million or sales of $2.5 billion in a calendar year.

(9)
Consists of option to acquire 0.56875 shares of Class A Voting Common Stock and 10.80625 shares of Class B Nonvoting Common Stock.

(10)
Consists of option to acquire 1.70625 shares of Class A Voting Common Stock and 32.41875 shares of Class B Nonvoting Common Stock.

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(11)
Consists of option to acquire 2.60000 shares of Class A Voting Common Stock and 49.60000 shares of Class B Nonvoting Common Stock.

(12)
Consists of option to acquire 2.60000 shares of Class A Voting Common Stock and 49.60000 shares of Class B Nonvoting Common Stock.

Option Exercises and Stock Vested

        None of our named executive officers exercised any stock options or became vested in any stock awards during 2013.

Pension Benefits

        We do not offer any defined benefit pension plans to any of our executive officers.

Nonqualified Deferred Compensation

        We do not offer any nonqualified deferred compensation plans to any of our executive officer.

Potential Payments Upon Termination or Change in Control

    Termination of Employment

        We do not provide severance benefits to any of our named executive officers. Therefore, none of our named executive officers would have received any severance benefits in connection with a termination of employment as of December 31, 2013.

        Certain of our named executive officers hold stock options granted under the 2007 Option Plan. See "—Stock Plans—2007 Option Plan" for information regarding the potential effects of a termination of employment on outstanding options held by Messrs. Whelan, Kadlec and Kaddis.

    Change in Control

        The following table sets forth the value of acceleration of unvested stock options that would have accrued to certain of our named executive officers if a change in control had occurred on December 31, 2013, pursuant to the 2007 Option Plan and the related award agreements described below under "Stock Plans—2007 Option Plan."

Name
  Value of
Accelerated
Options ($)(1)
 

Sean M. Whelan(2)

    5,043,257  

Gary W. Kadlec(3)

    3,615,411  

Atheer A. Kaddis

     

(1)
Calculated as the difference between the fair value of a share of our common stock (Class A Voting or Class B Nonvoting, as the case may be) underlying the options subject to accelerated vesting on December 31, 2013 and the exercise price of those options, multiplied by the number of unvested shares, and then rounded to the nearest dollar. The fair value of a share of our common stock on December 31, 2013 was $142,320.

(2)
As of December 31, 2013, 47.12500 shares of common stock subject to Mr. Whelan's options were unvested and would accelerate upon a change in control effective December 31, 2013.

(3)
As of December 31, 2013, 34.12500 shares of common stock subject to Mr. Kadlec's time-based options were unvested and would accelerate upon a change in control effective December 31, 2013.

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    No amounts have been included in the table with respect to Mr. Kadlec's unvested performance-based options, since the applicable award agreement provides that in the event of a change in control of the Company, all such unvested options will immediately terminate unless otherwise determined by a vote of the board of directors.

    Stock Plans

            Following the closing of the offering, we will grant all equity awards under the 2014 Omnibus Plan, no further awards will be granted under our 2007 Option Plan, and all outstanding awards previously granted under the 2007 Option Plan will continue to be governed by their existing terms.

    2007 Option Plan

        Awards.     The 2007 Option Plan provides for the grant of options, which include nonqualified stock options and incentive stock options, to our employees, directors and consultants. Nonqualified stock options granted under the option plan are not intended to qualify as incentive stock options under Section 422 of the Code. No incentive stock option grants are outstanding and none may be granted in the future under the option plan.

        Plan Administration.     The board of directors administers the option plan, having authority to select participants, grant options, determine the amount and other terms and conditions of options, interpret the option plan and the options granted thereunder, and adopt such rules and procedures for administering the option plan as it deems necessary and proper. All determinations and decisions made by the board of directors under the option plan are final and binding.

        Authorized Shares.     Subject to adjustment as described in the option plan, the maximum number of shares of our common stock that may be issued pursuant to options under the option plan as nonqualified stock options is the number of shares equal to 20% of the fully-diluted capitalization of the Company from time to time, which may be either authorized and unissued shares or shares acquired by the Company and held as treasury shares. Shares that are withheld by us in connection with payment of the exercise price or to satisfy tax withholding obligations, and any shares subject to an option that expires, terminates, is forfeited or is surrendered for cancellation may be subject to new options under the option plan.

        Eligibility.     The board of directors may grant awards to employees, directors and consultants of the Company.

        Terms of Options.     Options granted under the option plan are evidenced by, and subject to the terms and conditions of, award agreements. The following is a description of the terms of nonqualified stock options under the option plan, as further set forth in the award agreements.

        Vesting.     Generally, the options are subject to time-vesting in accordance with the following schedule: 25% on each of the first, second, third and fourth anniversaries of the grant date. In the event of a change in control of the Company, all unvested options immediately vest on the effective date of such change in control.

        Exercise.     Vested options may be exercised, in whole or in part, at any time beginning on the vesting date and ending on the date the options expire or otherwise terminate (as described below). For each share of Class A Voting Common Stock purchased upon exercise of an option, a participant is required to exercise an option to purchase 19 shares of Class B Nonvoting Stock.

        Exercise Price.     Although the option plan does not so expressly provide with respect to nonqualified stock options, the exercise price for nonqualified stock options granted under the option plan has been at least the fair market value of the underlying stock on the grant date.

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        Consideration.     Upon exercise, payment of the exercise price must be made in cash or by certified check or wire transfer of immediately available funds, or if permitted by the board of directors in its sole discretion, (i) by requesting that the Company withhold shares issuable upon exercise of the option having an aggregate fair market value on the date of exercise equal to the aggregate exercise price, or (ii) through a combination of cash and such shares.

        Term; Termination of Service.     The options expire on the tenth anniversary of the grant date but are subject to earlier termination upon termination of a participant's employment or service. Upon a termination of employment or service for reason other than disability, death or cause, all unvested options will terminate on the termination date and all vested options will terminate three months after the termination date, except in the case of the participant's death during such three-month period, in which case, all vested options will terminate one year after the termination date. Upon a termination of employment or service due to disability or death, all unvested options will terminate on the termination date and all vested options will terminate one year after the termination date. In the event a deceased participant's vested options are properly exercised, the board of directors may elect to pay to the participant's legal representative the amount by which the fair market value per share on the date of exercise exceeds the exercise price, multiplied by the number of shares with respect to which the options are being exercised. Upon a termination of employment or service for cause, we may terminate any options (whether vested or unvested) in its sole discretion as of the termination date.

        Restrictions on Transfer.     The options may not be transferred except in the case of a participant's death, by will or the laws of descent and distribution. Shares issued upon exercise of the options are subject to provisions of a buy/sell agreement (or, in some cases, an employee securities agreement) with the Company which, among other things, places significant restrictions on the transfer of shares and gives the Company and other shareholders the right to purchase shares upon the happening of specified events.

        Adjustments.     In the event of any change in the outstanding shares of our common stock by reason of any recapitalization, stock split, stock dividend, combination of shares, or change in the corporate structure or capital structure of the Company, or by reason of any merger, consolidation, share exchange or similar statutory transaction other than a change in control, in order to preclude dilution or enlargement of participants' rights under the option plan, the board of directors will, in its sole discretion, adjust the maximum aggregate number and class of shares as to which options may be granted under the option plan, as well as the number and class of shares and the exercise price of options previously granted, under the option plan.

        Change in Control.     The option plan provides that, except as provided in the award agreements, in the event of a change in control, the board of directors may provide for the treatment of options in any manner it deems appropriate, including substituting for any or all outstanding options such alternative consideration as it in good faith may determine to be equitable in the circumstances, and may require in connection therewith the surrender of all options so replaced or the acceleration of the vesting of any option or the provision of the same consideration, calculated on a per share basis, as the holders of shares were entitled to receive as if the options were exercised. Generally, the award agreements provide that in the event of a change in control, all unvested options will immediately vest on the effective date of such change in control.

        Amendment and Termination.     The option plan will continue in effect until January 1, 2017, provided that the board of directors may terminate or amend the option plan at any time. In such event, shareholder approval will be required to the extent necessary to comply with Section 422 of the Code (or any other applicable law or regulation). No termination or amendment of the option plan will affect in any manner any option granted prior to the date of termination or amendment, without the consent of the participant.

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    2014 Omnibus Plan

        Prior to completion of this offering, the board of directors intends to adopt the 2014 Omnibus Plan. The following summary describes what we anticipate to be the material terms of the omnibus plan. This summary is not a complete description of all provisions of the omnibus plan and is qualified in its entirety by reference to the omnibus plan, which will be filed as an exhibit to an amended version of the registration statement of which this prospectus is a part.

        Overview.     The omnibus plan provides for the award employees, directors, consultants, advisors or to nonemployees, to whom an offer of employment has been or is being extended, of the Company and its affiliates of options, restricted stock, restricted stock units, stock appreciation rights ("SARs"), performance awards (which may take the form of performance units or performance shares) and other stock and stock unit awards. The purpose of the omnibus plan is to (i) provide incentives and awards to participants in the omnibus plan by encouraging their ownership of stock and (ii) to aid the Company and its affiliates in retaining such participants, upon whose efforts our success and future growth depends, and to attract other such individuals.

        Administration.     The omnibus plan will be administered by the compensation committee, although the board of directors may administer the omnibus plan, in whole or in part, in certain circumstances. Subject to the terms of the omnibus plan, the compensation committee may select participants to receive awards, determine the types of awards and terms and conditions of awards and interpret provisions of the omnibus plan. The compensation committee may delegate, to a subcommittee of directors and/or officers, the authority to grant or administer awards to persons who are not then reporting persons under Section 16 of the Exchange Act and who are not "covered employees" under Section 162(m) of the Code.

        Authorized Shares.     Initially, there are            shares of our common stock reserved for issuance under the omnibus plan. Each fiscal year of the Company, beginning after the adoption of the 2014 Omnibus Plan, the number of shares reserved for issuance under the plan will be increased by an amount equal to      % of the total number of outstanding shares of common stock as of the beginning of such fiscal year. No awards have yet been granted under the omnibus plan. The shares of common stock to be issued under the omnibus plan may consist of either authorized and unissued shares, or shares previously held in the treasury of the Company, or both.

        Eligibility and Share Limitations.     Awards may be made under the omnibus plan to employees, directors, consultants, advisors or to nonemployees, to whom an offer of employment has been or is being extended, of the Company or an affiliate as determined by the compensation committee to be in our best interests, provided that only employees will be eligible to receive incentive stock options, and incentive stock options may be granted with respect to no more than            shares of common stock initially reserved for issuance under the plan. The maximum number of shares of common stock subject to options or SARs that may be awarded under the omnibus plan to any person is            per fiscal year. The maximum number of shares of common stock that may be awarded under the omnibus plan to any person, other than pursuant to options or SARs, is            per fiscal year. The maximum performance award opportunity that may be awarded to any person under the omnibus plan relating to performance units and payable in cash is $             million per fiscal year.

        Types of Awards.     The omnibus plan provides for the award of options, restricted stock, restricted stock units, SARs, performance awards and other stock and stock unit awards. The terms of the awards are described below.

        Options.     The omnibus plan permits the granting of options to purchase shares of common stock intended to qualify as incentive stock options under the Code and also options to purchase shares of common stock that do not qualify as incentive stock options, which we also refer to as non-qualified

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options. The exercise price of each option may not be less than 100% of the fair market value of the common stock subject to the option on the grant date. In the case of certain 10% shareholders who receive incentive stock options, the exercise price may not be less than 110% of the fair market value of the common stock subject to the option on the grant date. Options granted under the omnibus plan may generally not be sold, transferred, pledged or assigned other than by will or under applicable laws of descent and distribution.

        The term of each option will be fixed by the compensation committee and may not exceed ten years from the grant date (or five years in the case of incentive stock options granted to 10% shareholders). The compensation committee will determine at what time or times each option may be exercised. Except as set forth otherwise in an award agreement, options will generally be forfeited upon a termination of a participant's employment or service for cause, and a participant will generally have up to (i) 90 days to exercise any vested option for a termination for any reason other than cause, death or disability, and (ii) one year to exercise any vested option for a termination due to death or disability.

        Options may be made exercisable in installments. In general, an optionee may pay the exercise price of an option by cash or certified check, and the compensation committee will be authorized to permit the exercise price to be paid by net share settlement, broker assisted cashless exercise, tendering shares of common stock already owned, or any other form permitted by the compensation committee and applicable laws, rules and regulations. The compensation committee may impose blackout periods on the exercise of any option to the extent required by applicable laws.

        Restricted Stock Awards.     The omnibus plan permits the granting of restricted stock awards, which includes restricted stock and restricted stock units. Restricted stock awards consist of shares of common stock granted subject to forfeiture if specified employment or service continuation requirements and/or performance targets are not met. The compensation committee will determine the employment or service continuation requirements and/or performance targets. Restricted stock units are substantially similar to restricted stock but result in the issuance of shares of common stock upon meeting specified continued employment or service requirements and/or performance targets rather than the issuance of shares of common stock on the grant date (and therefore do not provide the holder the rights of a shareholder during the vesting period, although the compensation committee may provide for dividend rights). Prior to the end of the restricted period, restricted stock and restricted stock units may not be sold, assigned, pledged, or otherwise disposed of or hypothecated by participants, and may be forfeited in the event of termination of employment or service. During the restricted period, the restricted stock entitles the participant to all of the rights of a shareholder, including the right to vote the shares and the right to receive any dividends thereon.

        Performance Awards.     Performance units and performance shares may also be granted under the omnibus plan. Performance units and performance shares are awards that will result in a payment to a participant only if performance goals established by the compensation committee are achieved. The compensation committee will establish performance goals in its discretion within the parameters of the omnibus plan, which, depending on the extent to which they are met, will determine the degree of granting, vesting and/or payout value of performance units and performance shares. The compensation committee may impose additional conditions on an award to qualify it as performance-based compensation within the meaning of Section 162(m) of the Code (as described below). While the performance units and performance shares remain unvested, a participant may not sell, assign, transfer, pledge or otherwise dispose of the securities, subject to specified limitations.

        Compliance with Section 162(m) of the Code.     After a transition period following a company's initial public offering, Section 162(m) of the Code limits publicly-held companies to an annual deduction for U.S. federal income tax purposes of $1 million for compensation paid to its Chief Executive Officer and the three highest compensated executive officers (other than the Chief Executive Officer and Chief Financial Officer) determined at the end of each taxable year (the "covered

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employees"). However, performance-based compensation may be excluded from this limitation. The omnibus plan is designed to permit the compensation committee to grant awards that may be intended to qualify for purposes of satisfying the conditions of Section 162(m), when applicable after the initial public offering transition period.

        Business Criteria.     The compensation committee would exclusively use one or more of the following business criteria to measure company, affiliate, and/or business unit performance for a specified performance period, whether in absolute or relative terms (including, without limitation, terms relative to a peer group or index), in establishing performance goals for awards to covered employees if the award is to be intended to satisfy the conditions of Section 162(m):

    achieving a level of company net sales;

    achieving a level of earnings (including gross earnings; earnings before certain deductions, such as interest, taxes, depreciation, or amortization, or EBITDA, or other adjustments to EBITDA as determined by the compensation committee (including discontinued operations, income (loss) from equity investment, gain on bargain purchase, gain (loss) on disposal of property, plant and equipment, non-operating income (expense), impairment, severance for officers, state tax credits and share-based compensation (income) expense); or earnings per share);

    achieving a level of income (including net income or income before consideration of certain factors, such as overhead) or a level of gross profits for the Company, an affiliate, or a business unit;

    achieving a return on the Company's (or an affiliate's) sales, revenues, capital, assets, or shareholders' equity;

    achieving a level of appreciation in the price of the shares of common stock;

    achieving a level of market share;

    achieving a share price, or a share price return relative to specified stock market indices or other benchmarks, including peer companies, over a specified period;

    achieving a level of earnings or income performance relative to peer companies over a specified period;

    achieving specified reductions of costs or targeted levels in costs;

    achieving specified improvements in collection of outstanding accounts or specified reductions in non-performing debts;

    achieving a level of cash flow;

    introducing one or more products into one or more new markets;

    acquiring a prescribed number of (or sales volume related to) new customers in a line of business, or maintaining a prescribed number of (or sales volume related to) existing customers;

    achieving a level of productivity within one or more business units;

    completing specified projects within or below the applicable budget;

    completing acquisitions or dispositions of other businesses or assets, or integrating acquired businesses or assets;

    expanding into other markets;

    scientific or regulatory achievements;

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    implementation, completion or attainment of measurable objectives with respect to research, development, patents, inventions, products, projects or facilities and other key performance indicators; and

    achieving any of the above performance measures on a per-prescription basis.

        The compensation committee will have authority to exclude one or more of the following items in establishing such performance measures, provided any such determination is made within the applicable time period required by Section 162(m) of the Code: (i) extraordinary items outside the ordinary course of business, including acquisitions, dispositions or restructurings and related expenses; (ii) accounting policy changes required by the SEC or the FASB; (iii) the effects of any statutory adjustments to corporate tax rates; (iv) the effect of any change in the outstanding shares of common stock by reason of any stock dividend or split, stock repurchase, reorganization, recapitalization, merger, consolidation, spin-off, combination or exchange of shares of common stock or other similar corporate change, or any distributions to common shareholders other than regular cash dividends; and (v) such other objective criteria established by the compensation committee within the applicable time period required by Section 162(m) of the Code or other applicable laws.

        Dividends or Dividend Equivalents for Performance Awards.     Notwithstanding anything to the contrary in the omnibus plan, the right to receive dividends, dividend equivalents or distributions with respect to a performance award will only be earned by a participant if and to the extent that the underlying award is earned.

        Other Awards.     The compensation committee may also grant the following awards under the omnibus plan:

    SARs, which are rights to receive a number of shares of common stock or, in the discretion of the compensation committee, an amount in cash or a combination of shares of common stock and cash, based on the increase in the fair market value of the shares of common stock underlying the right over the market value of such shares on the grant date (or over an amount greater than the grant date fair market value, if the compensation committee so determines) during a stated period specified by the compensation committee not to exceed ten years from the grant date;

    other stock and stock unit awards, which may be issued at such times, subject to or based upon achievement of such performance or other goals or on other such terms and conditions as the compensation committee shall deem appropriate and specify in the award agreement; and

    unrestricted stock, which are shares of common stock granted without restrictions.

        Adjustments.     The compensation committee will make appropriate adjustments in outstanding awards and the number of shares of common stock available for issuance under the omnibus plan, including the individual limitations on awards, to reflect stock dividends, splits, extraordinary cash dividends, reorganizations, recapitalizations, mergers, consolidations and other similar events.

        Change in Control.     The compensation committee may in its discretion provide for the accelerated vesting, lapse of restrictions, or cash-out of any outstanding award in connection with a change in control and may require that a participant incur a termination of employment or service or satisfy other conditions in connection with such treatment. Notwithstanding the foregoing, the compensation committee may not pay cash for any underwater options or SARs.

        Forfeiture Provisions.     The compensation committee may provide by rule or regulation or in any award agreement, or may determine in any individual case, the circumstances in which awards shall be paid or forfeited in the event a participant ceases to be employed by us, or to provide services to us, prior to the end of a performance period, period of restriction or the exercise, vesting or settlement of

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such award. Generally the omnibus plan provides that awards will be forfeited if not earned or vested upon termination, unless otherwise provided for in an award agreement.

        In addition, unless otherwise specified in an award agreement, the compensation committee retains the right to cause a forfeiture of awards upon any breach or violation of agreements, policies or plans of the Company, as well as to the extent permitted by applicable law or regulations.

        Amendment and Termination.     Unless terminated earlier, the omnibus plan will terminate on the next day preceding the tenth anniversary of the date the Board adopts the omnibus plan. The board of directors may terminate or amend the omnibus plan at any time and for any reason, in its discretion. However, no amendment may adversely impair the rights of grantees with respect to outstanding awards. Amendments will be submitted for shareholder approval to the extent required by the Code or other applicable laws, rules or regulations.

Compensation Committee Interlocks and Insider Participation

        During fiscal 2013, we did not have a compensation committee or other board committee performing similar functions; the Board consisted of our five named executive officers; and our Chief Executive Officer made determinations concerning our executive officer compensation, in consultation with certain members of management, including our Chief Financial Officer, our President, our Executive V.P. and our General Counsel. None of our executive officers served as a member of the compensation committee or board of directors of another entity, one of whose executive officers served on our board of directors in 2013.

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CERTAIN RELATIONSHIPS AND RELATED-PARTY TRANSACTIONS

Procedures for Related-Party Transactions

        Our board of directors will adopt a written code of business conduct and ethics for our Company in compliance with Sarbanes-Oxley, which will be effective and publicly available on our website at www.diplomat.is upon the completion of this offering. Under our code of business conduct and ethics, our employees, officers and directors will be discouraged from entering into any transaction that may cause a conflict of interest for us. In addition, they must report any potential conflict of interest, including related-party transactions, to their supervisor, an executive officer or the compliance officer, as defined in our code of business conduct and ethics, who then reviews and summarizes the proposed transaction for our audit committee. Pursuant to its charter, our audit committee will be required to approve any related-party transactions, including those transactions involving our directors. Such policy was not in place when the related-party transactions disclosed below were approved.

Indemnification of Officers and Directors

        Our amended and restated bylaws will generally require us to indemnify our officers and directors to the fullest extent permitted by law, and to advance expenses incurred by our directors and officers prior to the final disposition of any action or proceeding arising by reason of the fact that any such person is or was our agent. In addition, our amended and restated bylaws will permit us to provide such other indemnification and advancement of expenses to our other employees and agents as permitted by law and authorized by the Board from time to time. We will also have the power to secure insurance on behalf of any director, officer, employee or other agent for any liability arising out of his or her status as such, regardless of whether we would have the power to indemnify such person against such liability pursuant to our amended and restated bylaws.

        In connection with this offering, we will enter into separate indemnification agreements with our directors and executive officers. Such agreements will generally provide for indemnification by reason of being a director or executive officer, as the case may be. These agreements will be in addition to the indemnification provided by our amended and restated bylaws.

Related-Party Transactions

    Redemptions of Company Securities

        In January and April 2014, pursuant to various Stock Redemption Agreements, we redeemed 328.31567 shares of our Class B Nonvoting Common Stock in exchange for a total cash payment of $46,725,900 to the Hagerman family (excluding Philip Hagerman).

        Also in 2014, we redeemed nonqualified stock options to purchase shares of our Class A Voting and Class B Nonvoting Common Stock with several of our employees. Upon the redemption of these rights to purchase, the existing nonqualified stock option was cancelled and we and the option holder entered into an Amended and Restated Nonqualified Stock Option Agreement, reflecting the option holder's continuing ownership of the remaining options. In connection with the January redemptions described below, each employee entered into an Employee Securities Agreement with us, which contains certain restrictions on transfer of our securities. The transactions with our executive officers are as follows:

        We redeemed 16.86341 shares of Class B Nonvoting Common Stock from Mr. Rowe in exchange for a cash payment in the amount of $2,400,000, pursuant to a Stock Redemption Agreement dated January 2014. We also redeemed 23.00520 shares of Class B Nonvoting Common Stock from Mr. Rowe in exchange for a cash payment in the amount of $3,274,100 pursuant to a Stock Redemption Agreement dated April 2014.

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        We redeemed the right to purchase 2.6 shares of Class A Voting Common Stock and 2.27073 shares of Class B Nonvoting Common Stock in exchange for a cash payment of $600,000 to Dr. Kaddis, pursuant to a Stock Option Redemption Agreement dated January 2014. Additionally, we redeemed his right to purchase 1.62358 shares of Class B Nonvoting Common Stock in exchange for a cash payment in the amount of $200,000 to Dr. Kaddis, pursuant to a Stock Option Redemption Agreement dated April 2014.

        Mr. Kadlec received a cash payment in the amount of $200,000 in exchange of the redemption of his right to purchase 1.88775 shares of Class A Voting Common Stock, pursuant to a Stock Option Redemption Agreement dated January 2014. We also redeemed his right to purchase 0.38725 shares of Class A Voting Common Stock and 1.50050 shares of Class B Nonvoting Common Stock in exchange for a cash payment to Mr. Kadlec in the amount of $200,000, pursuant to a Stock Option Redemption Agreement dated April 2014.

        Mr. Whelan received a cash payment in the amount of $600,000 in exchange for the redemption of his right to purchase 2.5 shares of Class A Voting Common Stock and 2.94818 shares of Class B Nonvoting Common Stock, pursuant to a Stock Option Redemption Agreement dated January 2014. We also redeemed Mr. Whelan's right to purchase 4.54015 shares of Class B Nonvoting Common Stock in exchange for a cash payment in the amount of $500,000, pursuant to a Stock Option Redemption Agreement dated April 2014.

    Company Loans

        We previously made several loans to our executive officers. Loans to Philip Hagerman were in advance of regular distributions to Mr. Hagerman for S corporation tax obligations. Philip Hagerman was indebted to us in the amount of $588,400 at June 2, 2011, which indebtedness accrued interest at an annual interest rate of 3% and was evidenced by an agreement (amended January 1, 2012) to repay the loan in full prior to, or at the time of, termination of employment with the Company; Philip Hagerman repaid the loan in full in May 2012. Philip Hagerman was indebted to us in the amount of $300,000 at December 21, 2011, which indebtedness accrued interest at an annual interest rate of 1.3% and was evidenced by an agreement to repay the loan in full prior to April 1, 2012; Philip Hagerman repaid the loan in full in May 2012. In addition, Philip Hagerman had loans with us in the amounts of $100,000 at January 31, 2012 and $100,000 at February 29, 2012; he repaid the loans in full in May 2012. Philip Hagerman also had a loan with us in the amount of $235,000 at July 25, 2012, which indebtedness accrued interest at an annual interest rate of 1.3% and was evidenced by an agreement to repay the loan in full prior to, or at the time of, termination of employment; he repaid the loan in full in August 2012. Philip Hagerman was also indebted to us in the amount of $40,000 at August 10, 2012; he repaid the loan in full on such date. Additionally, we were indebted to Philip Hagerman in the original amount of $5,851,642.11 for an ownership distribution effective December 30, 2012 with interest at 3% per annum, which was to be paid in a lump sum payment on January 20, 2017, having a balance owing at December 31, 2012 in the amount of $5,852,129.75, including interest; the loan was paid off in 2013. Mr. Kadlec was indebted to us in the amount of $50,000 at November 13, 2012, and in the amount of $100,000 at March 21, 2013, which indebtedness accrued interest at an annual interest rate of 3%, and was evidenced by agreements to pay the loans in full on the earlier to occur of December 1, 2014 or termination of employment; Mr. Kadlec repaid the loans in full in May 2014.

        We were indebted to Deborah L. Ward, Philip Hagerman's sister, in the original amount of $300,000 for a covenant not to compete effective January 1, 2005, which indebtedness was evidenced by an agreement to pay equal monthly installments of $2,500; the loan was paid off in 2011. We were also indebted to Deborah L. Ward in the original amount of $480,000 for the redemption of stock options pursuant to Amendment #1 of the Stock Redemption Agreement (the "Amendment") effective June 7, 2012, which indebtedness was evidenced by an agreement to pay equal quarterly installments of $40,000. The Amendment further provides that in the event of a sale of the Company such that Philip

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Hagerman is no longer our majority shareholder or we sell substantially all of our assets, certain trusts for the benefit of Ms. Ward and certain other immediate family members are entitled to 1.0% of the net proceeds of such sale.

        We are indebted to Jeffrey M. Rowe in the original amount of $8,061,966 for the redemption of common stock effective September 18, 2012, which indebtedness is evidenced by an agreement to pay equal quarterly installments of $100,000 with a final payment of $6,161,966 on July 20, 2017, and having a balance owing at December 31, 2013 in the amount of $7,574,366, including interest. We were also indebted to Mr. Rowe in the original amount of $562,657.89 for an ownership distribution effective December 30, 2012, which indebtedness was evidenced by a promissory note, with interest at 3% until paid in full and having a balance owing at December 31, 2012 in the amount of $562,704.77, including interest; the loan was paid off in 2013.

    Other Family Relationships

        We employ Jennifer Hagerman, Philip Hagerman's daughter, as our senior director of education and quality. In this capacity, Ms. Hagerman directs Diplomat University, our educational and training department that educates both Diplomat employees and external professionals seeking education in the specialty pharmacy industry. Ms. Hagerman also oversees our quality assurance program and serves as the director of Diplomat's Postgraduate Year One Pharmacy Residency Program, which is accredited by the American Society of Health-System Pharmacists. Ms. Hagerman was recently voted president-elect of the Michigan Pharmacists Association (the "MPA") by the MPA's membership. Ms. Hagerman earned the following compensation for her services during fiscal 2013: base salary, $142,015; discretionary and performance-based bonuses, $14,868 in the aggregate; and 401(k) matching contribution, $5,680. In addition, in January 2013, we granted Ms. Hagerman the right to purchase 10.68751 shares of common stock (consisting of an option to acquire 0.53438 shares of Class A Voting Common Stock and 10.15313 shares of Class B Nonvoting Common Stock) at an exercise price of $49,966.02 per share. We redeemed her right to purchase 0.27070 shares of Class A Voting Common Stock in exchange for a cash payment of $25,000, pursuant to a Stock Option Redemption Agreement dated January 2014. In connection with the January redemption of her stock options. Ms. Hagerman also entered into an Employee Securities Agreement. Also in January and April, 2014, respectively, we redeemed 1.75660 shares of common stock from Ms. Hagerman in exchange for $250,000 on each redemption, for a total of $500,000 in the aggregate.

    Shareholder Agreements

        In December 2012, the Philip R. Hagerman Revocable Trust dated September 6, 1991, as Amended, gifted shares of Class B Nonvoting Common Stock to the Hagerman family (excluding Philip Hagerman). In connection with the gift, the donees entered into Buy/Sell Agreements with us, which contained certain restrictions on transfer of our securities.

        Prior to this offering, the Hagerman family will enter a shareholders' agreement, which will provide voting authority to Philip Hagerman for all shares beneficially owned by the Hagerman family. Due to Mr. Hagerman's status as our affiliate, such shareholder agreement will also provide transfer restrictions to ensure compliance with securities laws.

    Registration Rights Agreement

        We are a party to an amended and restated registration rights agreement dated as of March 31, 2014 (the "Registration Rights Agreement"), relating to our securities held by certain funds of T. Rowe Price Associates, Inc., Janus Capital Management, LLC, affiliates of Mr. Hagerman, and Mr. Rowe. Under the Registration Rights Agreement, we are responsible, subject to certain exceptions, for the expenses of any offering of our shares of common stock offered pursuant to the agreement other than

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underwriting discounts and selling commissions. The Registration Rights Agreement contains customary indemnification provisions. Further, under the Registration Rights Agreement, each shareholder party agreed, if required by us and the managing underwriter in an underwritten offering, not to effect (other than pursuant to such registration) any public sale or distribution of any of our or their holdings in our Company or securities convertible into any of our equity securities for (i) 180 days after the effective date of an initial public offering, and (ii) 90 days after the registration of any offering other than an initial public offering.

        Demand Registration Rights.     Under the Registration Rights Agreement, subject to certain exceptions, certain funds of T. Rowe Price Associates, Inc. and Janus Capital Management have the right to require us to register for public sale under the Securities Act all shares of common stock held by them that they request be registered, in which case we would be required to notify and offer registration to the other shareholder parties insofar as the aggregate number of shares to be registered does not exceed the number which can be sold in such offering without materially and adversely affecting the offering price, as determined by the relevant managing underwriter or investment banking firm.

        Piggyback Registration Rights.     If we propose to register the offer and sale of any of our securities under the Securities Act in connection with the public offering of such securities other than with respect to (1) a registration related to a company stock plan or (2) a registration related to the exchange of securities in certain corporate reorganizations or certain other transactions, all shareholders party to the Registration Rights Agreement will be entitled to certain "piggyback" registration rights allowing them to include their shares in such registration, subject to certain marketing and other limitations. As a result, whenever we propose to file a registration statement under the Securities Act, certain of our shareholders are entitled to notice of the registration and have the right, subject to limitations that the underwriters may impose on the number of shares included in the registration, to include their shares in the registration.

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PRINCIPAL AND SELLING SHAREHOLDERS

        The following table sets forth information regarding beneficial ownership of our common stock as of May 31, 2014, by:

    each person or group we know to beneficially own more than 5% of our outstanding shares of common stock;

    each of our named executive officers;

    each of our directors individually;

    all of our executive officers, directors and as a group; and

    each selling shareholder.

        Beneficial ownership for the purposes of the following table is determined in accordance with the rules and regulations of the SEC. These rules generally provide that a person is the beneficial owner of securities if such person has or shares the power to vote or direct the voting thereof, or to dispose or direct the disposition thereof or has the right to acquire such powers within 60 days. Shares of common stock subject to options that are currently exercisable or exercisable within 60 days of May 31, 2014 are deemed to be outstanding and beneficially owned by the person holding the options. Shares issuable pursuant to stock options are deemed outstanding for computing the percentage ownership of the person holding such options but are not outstanding for computing the percentage of any other person. The percentage of beneficial ownership of our common stock for the following table is based on our common stock outstanding as of May 31, 2014. Immediately prior to this offering, all of our issued and outstanding shares of Series A convertible preferred stock will be converted into shares of our common stock on a one-for-            basis, all of our issued and outstanding shares of Class A voting stock will be converted into shares of our common stock on a one-for-            basis, and all of our issued and outstanding shares of Class B nonvoting stock will be converted into shares of our common stock on a one-for-            basis. The number of shares of common stock outstanding after the completion of this offering also includes the shares of common stock being offered for sale by us in this offering.

        Unless otherwise indicated, the address for each listed shareholder is c/o Diplomat Pharmacy, Inc., 4100 S. Saginaw St., Flint, MI 48507. To our knowledge, except as indicated in the footnotes to this table and pursuant to applicable community property laws, the persons named in the table have sole voting and investment power with respect to all shares of common stock.

 
  Shares of Common
Stock Owned Before
this Offering
   
  Shares of Common
Stock Owned After
this Offering(1)
 
 
  Shares
Offered
 
Name
  Number   Percent   Number   Percent  

5% shareholders:

                               

Janus Funds(2)

            %                          %

T. Rowe Price Funds(3)

            %                          %

Named executive officers and directors:

                               

Philip R. Hagerman(4)

    3,349.17935     72.7 %                          %

Sean M. Whelan(5)

    54.25875     1.2 %                          %

Gary W. Kadlec(6)

    21.80613     * %                          %

Jeffrey M. Rowe(7)

    335.13139     7.2 %                          %

Atheer A. Kaddis(8)

    97.90569     2.1 %                          %

All executive officers and directors as a group (5 persons)

    3,874.47942     83.7 %                          %

*
Less than 1%

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(1)
Column includes conversion of shares of Series A Preferred Stock, Class A Voting Common Stock and Class B Nonvoting Common Stock into shares of common stock as discussed under the heading "Description of Capital Stock—Conversion of Issued and Outstanding Preferred Stock."

(2)
Consists of (i)                 shares held by Janus Global Life Sciences Fund, (ii)                  shares held by Janus Triton Fund, (iii)                 shares held by Janus Venture Fund, (iv)                  shares held by Janus Capital Funds PLC Janus US Venture Fund, and (v)                  shares held by Janus Capital Funds PLC Janus US Venture Fund. The foregoing funds (the "Janus Funds") are managed by Janus Capital Management LLC. Janus Capital Management LLC has sole voting and dispositive power over the securities held by the Janus Funds and may be deemed to be the beneficial owner of all the shares listed. The address for these entities is 151 Detroit Street, Denver CO, 80206.

(3)
Consists of (i)                 shares held by T. Rowe Price Health Sciences Fund, Inc., (ii)                  shares held by TD Mutual Funds—TD Health Sciences Fund, (iii)                 shares held by Valic Company I—Health Sciences Fund, (iv)                  shares held by T. Rowe Price Health Sciences Portfolio, (v)                 shares held by John Hancock Variable Insurance Trust—Health Sciences Trust, (vi)                  shares held by John Hancock Funds II—Health Sciences Fund, (vii)                 shares held by T. Rowe Price New Horizons Fund, Inc., (vii)                  shares held by T. Rowe Price New Horizons Trust, and (ix)                 shares held by T. Rowe Price U.S. Equities Trust. The foregoing funds and accounts are advised or sub-advised by T. Rowe Price Associates, Inc. T. Rowe Price Associates, Inc. serves as investment adviser with power to direct investments and/or sole power to vote the securities owned by these funds and accounts other than Valic Company I—Health Sciences Fund, with respect to which T. Rowe Price Associates, Inc. does not have voting power. T. Rowe Price Associates, Inc. may be deemed to be the beneficial owner of all the shares listed. T. Rowe Price Associates, Inc. is the wholly owned subsidiary of T. Rowe Price Group, Inc., which is a publicly traded financial services holding company. The address for T. Rowe Price Associates, Inc. is 100 East Pratt Street, Baltimore, MD 21202.

(4)
Represents 195 shares of Class A Voting Common Stock and 1,014.09521 shares of Class B Nonvoting Common Stock held by the Philip R. Hagerman Revocable Trust, 540.73019 shares of Class B Nonvoting Common Stock held by the 2007 Hagerman Family Trusts, 606.43395 shares of Class B Nonvoting Common Stock held by the JH Trusts, 225.0 shares of Class B Nonvoting Common Stock held by the 2013 Irrevocable Exempt Trust for Thomas R. Hagerman, 225.0 shares of Class B Nonvoting Common Stock held by the 2013 Irrevocable Exempt Trust for Taylor G. Hagerman, 225.0 shares of Class B Nonvoting Common Stock held by the 2013 Irrevocable Exempt Trust for Jennifer K. Hagerman, 225.0 shares of Class B Nonvoting Common Stock held by the 2013 Irrevocable Exempt Trust for Megan Lineberger, 46.46 shares of Class B Nonvoting Common Stock held by Philip Hagerman as custodian F/B/O Thomas Hagerman, and 46.46 shares of Class B Nonvoting Common Stock held by Philip Hagerman as custodian F/B/O Taylor Hagerman. Prior to completion of the offering, we expect Mr. Hagerman to enter into a voting agreement with each of the foregoing and certain additional family members holding our common stock (collectively, the "Hagerman family"). If the underwriters' overallotment option is exercised in full, the Hagerman family would own            shares of common stock, or            %, after this offering.

(5)
Represents shares of our common stock issuable on the exercise of options held by Mr. Whelan.

(6)
Represents shares of our common stock issuable on the exercise of options held by Mr. Kadlec.

(7)
Represents 270.13139 shares of our Class B Nonvoting Common Stock held by Mr. Rowe and 65 shares of our Class B Nonvoting Common Stock held by The Rowe Family Trust.

(8)
Represents shares of our common stock issuable on the exercise of options held by Dr. Kaddis.

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DESCRIPTION OF CAPITAL STOCK

        The following discussion is a summary of the terms of our capital stock and our amended and restated articles of incorporation and bylaws following certain amendments that we intend to make in connection with this offering, as well as certain applicable provisions of Michigan law. Forms of our amended and restated articles of incorporation and bylaws as they will be in effect following this offering have been filed as exhibits to the registration statement of which this prospectus is a part.

Conversion of Issued and Outstanding Preferred Stock

        Prior to this offering, we had three classes of common stock (Class A voting stock, Class B nonvoting stock and Class C voting stock) and one class of preferred stock (Series A convertible preferred stock). As of            , 2014, there were                    shares of our Class A voting stock outstanding that were held of record by        shareholders,                    shares of our Class B nonvoting stock outstanding that were held of record by            shareholders, no shares of Class C voting stock outstanding, and                    shares of our Series A convertible preferred stock outstanding that were held of record by certain funds of Janus Capital Management LLC and T. Rowe Price Associates, Inc. In addition,                     shares of our common stock were issuable upon exercise of outstanding options granted under our 2007 Option Plan.

        Immediately prior to this offering, all of our issued and outstanding shares of Series A convertible preferred stock, Class A voting stock and Class B nonvoting stock will be converted into shares of our common stock on a one-for-                    basis.

Authorized Capitalization

        The following description summarizes certain important terms of our capital stock, as they are expected to be in effect immediately prior to the completion of this offering. We expect to amend our existing amended and restated articles of incorporation and bylaws such that they will reflect the descriptions of those charter documents below. Because it is only a summary, it does not contain all the information that may be important to you. For a complete description of the matters set forth in this section titled "Description of Capital Stock," you should refer to our amended and restated certificate of incorporation, amended and restated bylaws, which are included as exhibits to the registration statement of which this prospectus forms a part, and to the applicable provisions of Michigan law. Immediately following the completion of this offering, our authorized capital stock will consist of                     shares of common stock, no value per share, and                    shares of preferred stock.

Common Stock

        Our amended and restated articles of incorporation will authorize us to issue up to                    shares of common stock.

    Voting Rights

        Each holder of our common stock will be entitled to one vote per share on all matters submitted to a vote of the shareholders, including the election of directors. Our amended and restated articles of incorporation and bylaws will not provide for cumulative voting rights. As a result, the holders of a majority of the shares entitled to vote in any election of directors will be able to elect all of the directors standing for election, if they should so choose.

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    Dividend Rights

        Subject to preferences that may be applicable to any then outstanding preferred stock, the holders of our common stock will be entitled to receive dividends, if any, as may be declared from time to time by the Board out of legally available funds.

    Rights Upon Liquidation

        In the event of our liquidation, dissolution or winding up, holders of our common stock will be entitled to share ratably in the net assets legally available for distribution to shareholders after the payment of all of our debts and other liabilities, subject to the satisfaction of any liquidation preference granted to the holders of any outstanding shares of preferred stock.

    Other Rights and Preferences

        As of this offering, holders of our common stock will have no preemptive, conversion or subscription rights, and there will be no redemption or sinking fund provisions applicable to our common stock. The rights, preferences and privileges of our common stock will be subject to, and may be adversely affected by, the rights, preferences and privileges of any series of preferred stock that we may issue in the future.

    Fully Paid and Nonassessable

        All of our outstanding shares are, and the shares to be issued in this offering will be, duly authorized, validly issued, fully paid and nonassessable.

Preferred Stock

        Our amended and restated articles of incorporation will authorize us to issue up to                    shares of preferred stock in one or more series. Our Board is authorized, subject to limitations prescribed by Michigan law, to issue preferred stock in one or more series, to establish from time to time the number of shares to be included in each series and to fix the designation, powers, preferences and rights of the shares of each series and any of its qualifications, limitations or restrictions, in each case without further vote or action by our shareholders. Our Board can also increase or decrease the number of shares of any series of preferred stock, but not below the number of shares of that series then outstanding, without any further vote or action by our shareholders. Our Board may authorize the issuance of preferred stock with voting or conversion rights that could adversely affect the voting power or other rights of the holders of our common shares. The issuance of preferred stock, while providing flexibility in connection with possible acquisitions and other corporate purposes, could, among other things, have the effect of delaying, deferring or preventing a change in control of our Company and might adversely affect the market price of our common stock and the voting and other rights of the holders of our common stock.

Anti-Takeover Effects of Certain Provisions of Our Amended and Restated Articles of Incorporation and Bylaws and Michigan Law

        Our amended and restated articles of incorporation and bylaws will contain certain provisions that could have the effect of delaying, deterring or preventing another party from acquiring control of us, and therefore could adversely affect the market price of our common stock. These provisions and certain provisions of the Michigan Business Corporation Act (as it may be amended from time to time, the "MBCA"), which are summarized below, may also discourage coercive takeover practices and inadequate takeover bids, and are designed, in part, to encourage persons seeking to acquire control of us to negotiate first with the Board. We believe that the benefits of increased protection of our

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potential ability to negotiate more favorable terms with an unfriendly or unsolicited acquirer outweigh the disadvantages of potentially discouraging a proposal to acquire us.

    Amended and Restated Articles of Incorporation and Bylaws

        Following this offering, our amended and restated articles of incorporation and bylaws will contain provisions that:

    permit the Board to issue up to                    shares of preferred stock, with any rights, preferences and privileges as they may determine (including the right to approve an acquisition or other change in control);

    provide that the authorized number of directors may be fixed only by the Board in accordance with our amended and restated bylaws;

    do not provide for cumulative voting rights (therefore allowing the holders of a majority of the shares entitled to vote in any election of directors to elect all of the directors standing for election);

    divide our board into three classes;

    provide that all vacancies and newly created directorships may be filled by the affirmative vote of a majority of directors then in office, even if less than a quorum;

    prohibit removal of directors without cause;

    prohibit shareholders from calling special meetings of shareholders;

    provide that shareholders seeking to present proposals before a meeting of shareholders or to nominate candidates for election as directors at a meeting of shareholders must provide advance notice in writing and also comply with specified requirements related to the form and content of a shareholder's notice;

    require at least      % supermajority shareholder approval to alter, amend or repeal certain provisions of our amended and restated articles of incorporation; and

    require at least      % supermajority shareholder approval in order for shareholders to adopt, amend or repeal our amended and restated bylaws.

      The provisions of our amended and restated articles of incorporation and bylaws, effective upon the closing of this offering, could have the effect of discouraging others from attempting hostile takeovers and, as a consequence, they might also inhibit temporary fluctuations in the market price of our common stock that often result from actual or rumored hostile takeover attempts. These provisions might also have the effect of preventing changes in our management. It is possible that these provisions could make it more difficult to accomplish transactions that our shareholders might otherwise deem to be in their best interests.

    Michigan Business Corporation Act

        We may also opt-in to the provisions of Chapter 7A of the MBCA. In general, subject to certain exceptions, Chapter 7A of the MBCA prohibits a Michigan corporation from engaging in a "business combination" with an "interested shareholder" for a period of five years following the date that such shareholder became an interested shareholder, unless: (i) prior to such date, the board of directors approved the business combination; or (ii) on or subsequent to such date, the business combination is approved by at least 90% of the votes of each class of the corporation's stock entitled to vote and by at least two-thirds of such voting stock not held by the interested shareholder or such shareholder's affiliates. The MBCA defines a "business combination" to include certain mergers, consolidations,

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dispositions of assets or shares and recapitalizations. An "interested shareholder" is defined by the MBCA to include a beneficial owner, directly or indirectly, of 10% or more of the voting power of the outstanding voting shares of the corporation. While our board of directors to date has not elected to opt-in to these provisions, any future decision to do so could have an anti-takeover effect.

Limitation on Liability and Indemnification of Officers and Directors.

        Our amended and restated articles will eliminate the liability of our directors for monetary damages to the fullest extent under the MBCA and other applicable law. The MBCA permits a corporation to eliminate or limit a director's liability to the corporation or its shareholders for money damages for any action taken or any failure to take any action as a director, except liability for:

    the amount of a financial benefit received by a director to which he is not entitled;

    any intentional infliction of harm on the corporation or its shareholders;

    any illegal distributions to shareholders or the making of improper loans as provided in Section 551 of the MBCA; and

    any intentional criminal act.

The limitation of liability in our amended and restated articles of incorporation will not affect the availability of equitable remedies such as injunctive relief or rescission, nor will it limit the liability of our directors under federal securities laws.

        Our amended and restated bylaws will generally require us to indemnify our officers and directors to the fullest extent permitted by law, and to advance expenses incurred by our directors and officers prior to the final disposition of any action or proceeding arising by reason of the fact that any such person is or was our agent. In addition, our amended and restated bylaws will permit us to provide such other indemnification and advancement of expenses to our other employees and agents as permitted by law and authorized by the Board from time to time. We will also have the power to secure insurance on behalf of any director, officer, employee or other agent for any liability arising out of his or her status as such, regardless of whether we would have the power to indemnify such person against such liability pursuant to our amended and restated bylaws.

        In connection with this offering, we will enter into separate indemnification agreements with our directors and executive officers. Such agreements will generally provide for indemnification by reason of being a director or executive officer, as the case may be. These agreements will be in addition to the indemnification provided by our amended and restated bylaws.

        The limitation of liability and indemnification provisions in our amended and restated articles of incorporation and bylaws may discourage our shareholders from bringing lawsuits against our directors for breach of their fiduciary duties. They may also reduce the likelihood of derivative litigation against our directors and officers, even though an action, if successful, might benefit us and our shareholders. A shareholder's investment may be harmed to the extent we pay the costs of settlement and damage awards against directors and officers pursuant to these indemnification provisions.

        At present, there is no pending litigation or proceeding involving any of our directors or executive officers as to which indemnification is required or permitted, and we are not aware of any threatened litigation or proceeding that may result in a claim for indemnification.

Transfer Agent and Registrar

        The transfer agent and registrar for our common stock is                    .

Listing

        Our common stock has been approved for listing on the                    under the symbol "    ," subject to official notice of issuance.

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DESCRIPTION OF INDEBTEDNESS

Line of Credit

        On June 26, 2014, we entered into an amended and restated credit agreement with GE Capital Bank, as agent, Comerica Bank, JPMorgan Chase Bank, N.A. and Wells Fargo Bank, N.A., as additional lenders. The amended and restated credit agreement provides allows us to borrow, on a revolving basis, the lesser of (x) $120.0 million and (y) the Borrowing Base (as defined), less, in either case, the sum of (a) the aggregate amount of letter of credit obligations plus (b) outstanding swing loans. The amended facility provides for issuances of letters of credit up to $3.0 million and swing loans up to $5.0 million. Additionally, the line of credit permits incremental increases in the revolving line of credit or issuance of term loans up to an aggregate amount of $25.0 million. The amended and restated credit agreement amended our prior credit agreement with GE Capital Bank, as agent, which allowed us to borrow up to $85.0 million.

        The line of credit will expire on July 20, 2017. The line of credit is guaranteed by all of our subsidiaries and collateralized by substantially all of our and our subsidiaries' respective assets.

        At                        , 2014, we had $             million of borrowings outstanding and had $             million of availability under the line of credit and we were in compliance with all applicable covenants under the line of credit.

        We may select from two interest rate options for revolving and letter of credit borrowings under the line of credit: (i) LIBOR (as defined in the line of credit) plus 1.75% or (ii) Base Rate (as defined in the line of credit) plus 0.75%. Swing loans may not be Base Rate loans.

        We are required to pay a commitment fee on the unused portion of the revolving line of credit commitment as of each calendar month at a rate of 0.25% if the unused portion is less than one-third of the commitment, 0.375% if the unused portion is greater than or equal to one-third but less than two-thirds of the commitment or 0.5% if the unused portion is greater than or equal to two-thirds of the commitment. We are also required to pay a letter of credit fee on the undrawn amount of all issued letters of credit as of each calendar month at a rate of 1.75%. The fees will be payable monthly in arrears.

        The line of credit includes customary restrictions on, among other things and subject to certain exceptions, our ability to incur additional indebtedness, pay dividends or make other distributions, redeem or repurchase capital stock, make investments and loans and enter into certain transactions, including selling assets, engaging in mergers or acquisitions and transactions with affiliates. We are required to maintain cash management arrangements to manage payments received by account debtors. Such arrangements will include entering into control agreements providing for full cash dominion, establishing lockboxes if electronic deposit capture payments exceed a certain percentage of all account collections, and entering into sweep agreements with respect to governmental payors making payments under Medicare or Medicaid.

        In the event the amount available to be drawn under our revolving line of credit is less than $20.0 million, we are required to satisfy a minimum fixed charge coverage ratio of not less than 1.10 to 1.0, as measured on a trailing 12-month basis. At June 30, 2014, we were not required to satisfy the test as we met the specified excess availability threshold.

        We have pledged the equity of substantially all of our subsidiaries as security for the line of credit. In addition, the line of credit includes customary events of defaults, including a change of control default and an event of default if a material adverse effect occurs with respect to certain FDA or health care matters. In case of an event of default, the agent would be entitled to, among other things, accelerate payment of amounts due under the line of credit, foreclose on the equity of our subsidiaries, and exercise all rights of a secured creditor on behalf of the lenders.

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Other Debt

    Stakeholder Debt

        We are also indebted to certain current or former stakeholders. The following outstanding principal balances are as of March 31, 2014. We are indebted to Mark Chaffee, a former shareholder, in the amount of $13.5 million in connection with our redemption of Mr. Chaffee's shares. We issued Mr. Chaffee a promissory note, secured by a pledge on certain treasury shares, which bears interest at a rate of 1.3% per annum and matures in January of 2017. We are indebted to Jeffrey M. Rowe, an existing shareholder, executive officer, and director, in the amount of $7.2 million for the redemption of common stock effective September 18, 2012. We issued Mr. Rowe a promissory note which requires us to pay equal quarterly installments of $100,000 at an interest rate of 1.3% per annum with a final payment of $6,161,966 on July 20, 2017. We are indebted to Deborah Ward, an existing shareholder and the sister of Philip Hagerman, our Chairman of the Board of Directors and Chief Executive Officer, in the amount of $0.2 million in connection with our redemption of certain of Ms. Ward's shares. On June 7, 2012, we issued Ms. Ward a non-interest bearing promissory note which requires us to pay quarterly installments of $40,000 until paid in full on April 20, 2015. We are indebted to Stephen M. Lund, a former employee and option holder, in the amount of $1.0 million in connection with the repurchase of his then-existing options. We issued Mr. Lund a promissory note dated October 1, 2012 which bears interest at the prime rate plus 1.0%, requires payment of quarterly installments of $71,150.65 plus interest, and matures on July 20, 2017.

    Mortgage

        We entered into a $7,440,000 mortgage loan with JP Morgan Chase in December 2010 for the purchase of our headquarters building. The outstanding principal and interest amount of $2.6 million was paid in full in May 2014.

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SHARES ELIGIBLE FOR FUTURE SALE

        Prior to this offering, there has been no market for our common stock. Future sales of substantial amounts of our common stock in the public market or the perception that such sales might occur could adversely affect market prices prevailing from time to time. Furthermore, because only a limited number of shares will be available for sale shortly after this offering due to existing contractual and legal restrictions on resale as described below, there may be sales of substantial amounts of our common stock in the public market after the restrictions lapse. This may adversely affect the prevailing market price and our ability to raise equity capital in the future.

        Upon the completion of this offering, assuming no exercise of outstanding options, we will have                    shares of common stock outstanding. Of these shares, the                     shares sold in this offering will be freely transferable without restriction or registration under the Securities Act, except for any shares purchased by one of our existing "affiliates," as that term is defined in Rule 144 under the Securities Act. The remaining shares of common stock held by our existing shareholders are "restricted securities" as defined in Rule 144. Restricted shares may be sold in the public market only if registered under the Securities Act or if they qualify for an exemption from registration, including, among others, the exemptions provided by Rules 144 and 701 promulgated by the SEC under the Securities Act. As a result of the contractual 180-day lock-up period described in "Underwriting" and the provisions of Rules 144 and 701, these shares will be available for sale in the public market as follows:

Number of Shares
  Date

                        

  On the date of this prospectus.

                        

  After 90 days from the date of this prospectus.

                        

  After 180 days from the date of this prospectus (subject, in some cases, to volume limitations).

Lock-Up Agreements

        In connection with this offering, we, our directors and our executive officers (including the selling shareholders, but excluding shares to be sold in this offering by such selling shareholders), and certain other holders of our common stock or options to purchase common stock have agreed with the underwriters, subject to certain exceptions, not to dispose of or hedge any of our common stock or securities convertible into or exercisable or exchangeable for shares of our common stock, file or cause to be filed a registration statement covering shares of common stock or any securities that are convertible into, exercisable or exchangeable for any shares of our common stock, or publicly disclose the intention to do any of the foregoing, during the period from the date of this prospectus continuing through the date 180 days after the date of this prospectus, except with the prior written consent of Credit Suisse Securities (USA) LLC and Morgan Stanley & Co. LLC. For additional information, including regarding certain exceptions to which this agreement is subject, see "Underwriting". Following the lock-up period, substantially all of the shares of our common stock that are restricted securities or are held by our affiliates as of the date of this prospectus will be eligible for sale in the public market in compliance with Rule 144.

Rule 144

        In general, under Rule 144, an affiliate who beneficially owns shares that were purchased from us, or any affiliate, at least six months previously, is entitled to sell, upon the expiration of the lock-up agreement described in "Underwriting," within any three-month period beginning 90 days after the date of this prospectus, a number of shares that does not exceed the greater of 1% of our then-outstanding shares of common stock, which will equal approximately                     shares immediately after this offering, or the average weekly trading volume of our common stock on the                    

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during the four calendar weeks preceding the filing of a notice of the sale with the SEC. Sales under Rule 144 are also subject to certain manner of sale provisions, notice requirements and the availability of current public information about us.

        Following this offering, a person that is not an affiliate of ours at the time of, or at any time during the three months preceding, a sale and who has beneficially owned restricted securities within the meaning of Rule 144 for at least six months, may sell shares subject only to the availability of current public information about us, and any such person who has beneficially owned restricted shares of our common stock for at least one year may sell shares without restriction.

        We are unable to estimate the number of shares that will be sold under Rule 144 since this will depend on the market price for our common stock, the personal circumstances of the shareholder and other factors.

Rule 701

        In general, under Rule 701, any of our employees, directors, officers, consultants or advisors who purchased shares from us in connection with a compensatory stock or option plan or other written agreement before the effective date of this offering is entitled to resell such shares 90 days after the effective date of this offering in reliance on Rule 144, without having to comply with the holding period requirements or other restrictions contained in Rule 701.

        The SEC has indicated that Rule 701 will apply to typical stock options granted by an issuer before it becomes subject to the reporting requirements of the Exchange Act, along with the shares acquired upon exercise of such options, including exercises after the date of this prospectus. Securities issued in reliance on Rule 701 are restricted securities and, subject to the contractual restrictions described above, beginning 90 days after the date of this prospectus, may be sold by persons other than "affiliates," as defined in Rule 144, subject only to the manner of sale provisions of Rule 144 and by "affiliates" under Rule 144 without compliance with its one-year minimum holding period requirement.

Registration Statements on Form S-8

        We intend to file a registration statement on Form S-8 under the Securities Act to register all of the shares of common stock issued or reserved for issuance under our 2007 Option Plan, and our 2014 Omnibus Plan, which will be effective upon the completion of this offering. This registration statement would cover approximately                    shares as of the date of this offering. Shares registered under the registration statement will generally be available for sale in the open market after the 180-day lock-up period immediately following the date of this prospectus (as such period may be extended in certain circumstances).

Registration Rights

        Beginning 180 days after the date of this prospectus, subject to certain exceptions and automatic extensions in certain circumstances, certain holders of shares of our common stock will be entitled to the rights described under "Certain Relationships and Related-Party Transactions—Registration Rights Agreement." Registration of these shares under the Securities Act would result in these shares becoming freely tradable without restriction under the Securities Act immediately upon effectiveness of the registration.

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MATERIAL U.S. FEDERAL INCOME AND ESTATE TAX CONSIDERATIONS
FOR NON-U.S. HOLDERS OF COMMON STOCK

        The following discussion is a summary of the material U.S. federal income and estate tax considerations with respect to the acquisition, ownership and disposition of our common stock by "Non-U.S. Holders" (defined below). This discussion applies only if you (1) purchase our common stock in this offering, (2) will hold the common stock as a capital asset and (3) are a "Non-U.S. Holder." You are a Non-U.S. Holder if, for U.S. federal income tax purposes, you are a beneficial owner of shares of our common stock and are not:

    an individual who is a citizen or resident of the United States;

    a corporation or other entity taxable as a corporation created or organized in, or under the laws of, the United States, any state thereof or the District of Columbia;

    an estate, the income of which is subject to U.S. federal income taxation regardless of its source;

    a trust, if a court within the United States is able to exercise primary supervision over the administration of the trust and one or more U.S. persons have the authority to control all substantial decisions of the trust; or

    a trust that has a valid election in place pursuant to the applicable Treasury regulations to be treated as a U.S. person for U.S. federal income tax purposes.

        This discussion assumes that a Non-U.S. Holder will hold our common stock as a capital asset (generally, property held for investment). The summary does not address all of the U.S. federal income and estate tax considerations that may be relevant to you in the light of your particular circumstances or if you are a beneficial owner subject to special treatment under U.S. federal income tax laws (for instance, you are a controlled foreign corporation, passive foreign investment company, company that accumulates earnings to avoid U.S. federal income tax, foreign tax-exempt organization, bank, financial institution, broker or dealer in securities, insurance company, regulated investment company, real estate investment trust, person who holds our common stock as part of a hedging or conversion transaction or as part of a short-sale or straddle, U.S. expatriate, former long-term permanent resident of the United States or partnership or other pass-through entity for U.S. federal income tax purposes). This summary does not discuss non-income taxes (except, to a limited extent below, the U.S. federal estate tax), any aspect of the U.S. federal alternative minimum tax or state, local or non-U.S. taxation. This summary is based on current provisions of the Code, Treasury regulations, judicial opinions, published positions of the Internal Revenue Service ("IRS"), and all other applicable authorities (we refer to all such sources of law in this prospectus as "Tax Authorities"). The Tax Authorities are subject to change, possibly with retroactive effect.

        If you are an individual, you may be deemed to be a resident alien, as opposed to a nonresident alien, by virtue of being present in the United States for at least 31 days in the calendar year and for an aggregate of at least 183 days during a three-year period ending in the current calendar year. For these purposes, all the days present in the current year, one-third of the days present in the immediately preceding year, and one-sixth of the days present in the second preceding year are counted. Resident aliens are subject to U.S. federal income tax as if they were U.S. citizens. Such an individual is urged to consult his or her own tax advisor regarding the U.S. federal income tax consequences of the ownership or disposition of our common stock.

        If a partnership (or an entity or arrangement classified as a partnership for U.S. federal income tax purposes) beneficially owns our common stock, the tax treatment of a partner will generally depend on the status of the partner and the activities of the partnership. If you are a partner of a partnership owning our common stock, you should consult your own tax advisor.

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        WE URGE PROSPECTIVE INVESTORS TO CONSULT THEIR OWN TAX ADVISORS REGARDING THE U.S. FEDERAL, STATE, LOCAL AND NON-U.S. INCOME AND OTHER TAX CONSIDERATIONS OF ACQUIRING, HOLDING AND DISPOSING OF SHARES OF OUR COMMON STOCK.

Distributions

        Although we do not anticipate that we will pay any dividends on our common stock in the foreseeable future, to the extent dividends are paid to Non-U.S. Holders, such distributions will be subject to U.S. withholding tax at a rate of 30% of the gross amount of the dividend, unless you are eligible for a reduced rate of withholding tax under an applicable income tax treaty and you properly provide the payor or the relevant withholding agent with an IRS Form W-8BEN or IRS Form W-8BEN-E, or successor form, claiming an exemption from or reduction in withholding under the applicable income tax treaty. Special certification and other requirements may apply if you hold shares of our common stock through certain foreign intermediaries. For payments made to a partnership or other pass-through entity, the certification requirements generally apply to the partners or other owners rather than to the partnership or other entity, and the partnership or other entity must provide the partners' or other owners' documentation to us or our paying agent. A distribution of cash or other property (other than certain pro rata distributions of our common stock) in respect of our common stock will constitute a dividend for U.S. federal income tax purposes to the extent of our current or accumulated earnings and profits as determined under the Tax Authorities. Any distribution not constituting a dividend will be treated first as reducing your adjusted tax basis in your shares of our common stock and, to the extent it exceeds your tax basis, as capital gain from the sale of stock as described below under the heading "—Sale or Other Disposition of Our Common Stock."

        Dividends we pay to you that are effectively connected with your conduct of a trade or business within the United States (and, if certain income tax treaties apply, are attributable to a U.S. permanent establishment or a fixed base maintained by you) generally will not be subject to U.S. withholding tax if you provide an IRS Form W-8ECI, or successor form, to the payor. Instead, such dividends generally will be subject to U.S. federal income tax, net of certain deductions, at the same graduated individual or corporate rates applicable to U.S. persons. If you are a corporation, effectively connected income may also be subject to a "branch profits tax" at a rate of 30% (or such lower rate as may be specified by an applicable income tax treaty).

        A Non-U.S. Holder that is eligible for a reduced rate of U.S. federal withholding tax under an income tax treaty may obtain a refund or credit of any excess amounts withheld by timely filing an appropriate claim for a refund together with the required information with the IRS.

Sale or Other Disposition of Our Common Stock

        Subject to the discussions of backup withholding and FATCA below, you generally will not be subject to U.S. federal income tax on any gain realized upon the sale or other disposition of your shares of our common stock unless:

    the gain is effectively connected with your conduct of a trade or business within the United States (and, under certain income tax treaties, is attributable to a U.S. permanent establishment or a fixed U.S. base maintained by you);

    you are an individual, you are present in the United States for a period or periods aggregating 183 days or more in the taxable year of disposition and you meet other conditions; or

    we are or have been a "United States real property holding corporation" for U.S. federal income tax purposes (which we believe we are not and have not been and do not anticipate we will become) and you hold or have held, directly or indirectly, more than five percent of our

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      common stock at any time within the five-year period ending on the date of disposition of our common stock.

        If you are described in the first bullet point above, you will be subject to U.S. federal income tax on the gain from the sale, net of certain deductions, at the same rates applicable to U.S. persons and, if you are a corporation, the 30% branch profits tax also may apply to such effectively connected gain. If you are described in the second bullet point above, you generally will be subject to U.S. federal income tax at a rate of 30% on the gain realized, although the gain may be offset by certain U.S. source capital losses realized during the same taxable year. Non-U.S. Holders should consult any applicable income tax or other treaties that may provide for different rules.

Information Reporting and Backup Withholding Requirements

        We must report annually to the IRS the amount of any dividends or other distributions we pay to you and the amount of tax we withhold on these distributions regardless of whether withholding is required. A similar report will be sent to you. The IRS may make available copies of the information returns reporting those distributions and amounts withheld to the tax authorities in the country in which you reside pursuant to the provisions of an applicable income tax treaty or exchange of information treaty.

        The United States imposes a backup withholding tax at a rate of 28% on any dividends and certain other types of payments to U.S. persons. You will not be subject to backup withholding tax on dividends you receive on your shares of our common stock if you provide proper certification of your status as a Non-U.S. Holder or you are one of several types of entities and organizations that qualify for an exemption (an "exempt recipient") and neither we nor the payor has actual knowledge (or reason to know) that you are a U.S. holder that is not an exempt recipient.

        Information reporting and backup withholding generally are not required with respect to the amount of any proceeds from the sale of your shares of our common stock outside the United States through a foreign office of a foreign broker that does not have certain specified connections to the United States. If you sell your shares of our common stock through a U.S. broker or the U.S. office of a foreign broker, however, the broker will be required to report to the IRS the amount of proceeds paid to you and also backup withhold on that amount, unless you provide appropriate certification to the broker of your status as a Non-U.S. Holder or you are an exempt recipient. Information reporting will also apply if you sell your shares of our common stock through a foreign broker deriving more than a specified percentage of its income from U.S. sources or having certain other connections to the United States, unless such broker has documentary evidence in its records that you are a Non-U.S. Holder and certain other conditions are met, or you are an exempt recipient.

        Backup withholding is not an additional tax. Any amounts withheld under the backup withholding rules from a payment to you with respect to your shares of our common stock will be refunded to you if withholding results in an overpayment of taxes or credited against your U.S. federal income tax liability, if any, by the IRS if you furnish the required information to the IRS in a timely manner.

FATCA

        Sections 1471 through 1474 of the Code (provisions commonly known as "FATCA") may impose a withholding tax of 30% on dividends and the gross proceeds of a disposition of our shares paid to a foreign financial institution unless such institution enters into an agreement with the U.S. government to withhold on certain payments and collect and provide to the U.S. tax authorities substantial information regarding U.S. account holders of such institution (which would include certain account holders that are foreign entities with U.S. owners) and meets certain other requirements. This legislation may also impose a withholding tax of 30% on dividends and the gross proceeds of a disposition of our shares paid (directly or indirectly) to a non-financial foreign entity that is the

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beneficial owner of the payment unless such entity certifies that it does not have any substantial U.S. owners or provides the name, address and taxpayer identification number of each substantial U.S. owner and such entity meets certain other requirements. Under certain circumstances, a Non-U.S. Holder of our common stock may be eligible for a refund or credit of such taxes. Based on current guidance, any withholding obligations under FATCA are expected to begin on or after July 1, 2014 with respect to dividends and on or after January 1, 2015 with respect to gross proceeds. Congress has delegated broad authority to the U.S. Treasury Department to promulgate regulations to implement FATCA. We cannot predict whether or how any such regulations will affect you. You should consult your own tax advisor as to the possible implications of this legislation on your investment in shares of our common stock.

U.S. Federal Estate Tax

        Shares of our common stock owned or treated as owned by an individual who is not a citizen or resident (as defined for U.S. federal estate tax purposes) of the United States at the time of his or her death will be included in the individual's gross estate for U.S. federal estate tax purposes and therefore may be subject to U.S. federal estate tax unless an applicable tax treaty provides otherwise.

         The preceding discussion of U.S. federal income and estate tax considerations is for general information only. It is not tax advice. Each prospective investor should consult his or her own tax advisor regarding the particular U.S. federal, state, local and non-U.S. tax consequences of purchasing, holding and disposing of our common stock, including the consequences of any proposed change in applicable laws.

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UNDERWRITING

        Under the terms and subject to the conditions contained in an underwriting agreement dated                    , 2014, we and the selling shareholders have agreed to sell to the underwriters named below, for whom Credit Suisse Securities (USA) LLC and Morgan Stanley & Co. LLC are acting as representatives (the "representatives"), the following respective numbers of shares of common stock:

Underwriter
  Number
of Shares

Credit Suisse Securities (USA) LLC

   

Morgan Stanley & Co. LLC

   

J.P. Morgan Securities LLC

   

Wells Fargo Securities, LLC

   

William Blair & Company, L.L.C. 

   

Leerink Partners LLC

   
     

Total

   
     
     

        The underwriting agreement provides that the underwriters are obligated to purchase all the shares of common stock in the offering if any are purchased, other than those shares covered by the over-allotment option described below. The underwriting agreement also provides that, if an underwriter defaults, the purchase commitments of non-defaulting underwriters may be increased or the offering may be terminated.

        We and the selling shareholders have granted to the underwriters a 30-day option to purchase on a pro rata basis up to          additional shares from us and up to           additional outstanding shares from the selling shareholders, in each case at the initial public offering price less the underwriting discounts and commissions. The option may be exercised only to cover any over-allotments of common stock.

        The underwriters propose to offer the shares of common stock initially at the public offering price on the cover page of this prospectus and to selling group members at that price less a selling concession of $        per share. After the initial public offering, the representatives may change the public offering price and concession.

        The following table summarizes the compensation and estimated expenses we and the selling shareholders will pay:

 
  Per Share   Total  
 
  Without
Over-
allotment
  With
Over-
allotment
  Without
Over-
allotment
  With
Over-
allotment
 

Underwriting Discounts and Commissions paid by us

  $              $              $              $             

Expenses payable by us

  $              $              $              $             

Underwriting Discounts and Commissions paid by the selling shareholders

  $              $              $              $             

Expenses payable by the selling shareholders

  $              $              $              $             

        The representatives have informed us that they do not expect sales to accounts over which the underwriters have discretionary authority to exceed 5% of the shares of common stock being offered.

        We have agreed that we will not offer, sell, issue, contract to sell, issue, pledge or otherwise dispose of, directly or indirectly, or file with the Securities and Exchange Commission a registration statement under the Securities Act relating to, any shares of our common stock or securities convertible into or exchangeable or exercisable for any shares of our common stock, or publicly disclose the

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intention to make any offer, sale, pledge, disposition or filing, without the prior written consent of the representatives for a period of 180 days after the date of this prospectus, subject to certain exceptions. However, in the event that either (1) during the last 17 days of the "lock-up" period, we release earnings results or material news or a material event relating to us occurs or (2) prior to the expiration of the "lock-up" period, we announce that we will release earnings results during the 16-day period beginning on the last day of the "lock-up" period, then in either case the expiration of the "lock-up" will be extended until the expiration of the 18-day period beginning on the date of the release of the earnings results or the occurrence of the material news or event, as applicable, unless the representatives waive, in writing, such an extension.

        Our officers and directors (including the selling shareholders, but excluding shares to be sold in this offering by such selling shareholders) and certain of our other shareholders, collectively representing in the aggregate      % of our common stock on a fully diluted basis, have agreed, subject to specified exceptions, that they will not offer, sell, contract to sell, pledge or otherwise dispose of, directly or indirectly, any shares of our common stock or securities convertible into or exchangeable or exercisable for any shares of our common stock, enter into a transaction that would have the same effect, or enter into any swap, hedge or other arrangement that transfers, in whole or in part, any of the economic consequences of ownership of our common stock, whether any of these transactions are to be settled by delivery of our common stock or other securities, in cash or otherwise, or publicly disclose the intention to make any offer, sale, pledge or disposition, or to enter into any transaction, swap, hedge or other arrangement, without, in each case, the prior written consent of the representatives for a period of 180 days after the date of this prospectus. However, in the event that either (1) during the last 17 days of the "lock-up" period, we release earnings results or material news or a material event relating to us occurs or (2) prior to the expiration of the "lock-up" period, we announce that we will release earnings results during the 16-day period beginning on the last day of the "lock-up" period, then in either case the expiration of the "lock-up" will be extended until the expiration of the 18-day period beginning on the date of the release of the earnings results or the occurrence of the material news or event, as applicable, unless the representatives waive, in writing, such an extension. The representatives may, in their discretion, release any of the securities subject to the lock-up agreements at any time.

        The underwriters have reserved for sale at the initial public offering price up to          shares of the common stock for employees, directors and other persons associated with us who have expressed an interest in purchasing common stock in the offering. If purchased by these persons, these shares will be subject to a 180-day lock-up restriction. The number of shares available for sale to the general public in the offering will be reduced to the extent these persons purchase the reserved shares. Any reserved shares not so purchased will be offered by the underwriters to the general public on the same terms as the other shares.

        We and the selling shareholders have agreed to indemnify the underwriters against liabilities under the Securities Act, or contribute to payments that the underwriters may be required to make in that respect.

        We have applied to list our shares of common stock on the          , under the symbol "          ".

        Prior to this offering, there has been no public market for our common stock. The initial public offering price was determined by negotiations among us, the selling shareholders and the representatives and will not necessarily reflect the market price of the common stock following this offering. The principal factors that will be considered in determining the initial public offering price will include:

    the information presented in this prospectus and otherwise available to the underwriters;

    the history of, and prospects for, the industry in which we will compete;

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    the ability of our management;

    the prospects for our future earnings;

    the present state of our development, results of operations and our current financial condition;

    the general condition of the securities markets at the time of this offering; and

    the recent market prices of, and the demand for, publicly traded common stock of generally comparable companies.

        We cannot assure you that the initial public offering price will correspond to the price at which the common stock will trade in the public market subsequent to this offering.

        The underwriters and their respective affiliates are full-service financial institutions engaged in various activities, which may include securities trading, commercial and investment banking, financial advisory, investment management, investment research, principal investment, hedging, financing and brokerage activities. Certain of the underwriters and their respective affiliates have, from time to time, performed, and may in the future perform, various financial advisory and investment banking services for us, for which they received or will receive customary fees and expenses. An affiliate of J.P. Morgan Securities LLC and an affiliate of Wells Fargo Securities, LLC are lenders under our line of credit.

        In addition, in the ordinary course of their business activities, the underwriters and their affiliates may make or hold a broad array of investments and actively trade debt and equity securities (or related derivative securities) and financial instruments (including bank loans) for their own account and for the accounts of their customers. These investments and securities activities may involve securities and/or instruments of ours or our affiliates. The underwriters and their affiliates may also make investment recommendations and/or publish or express independent research views in respect of such securities or financial instruments and may hold, or recommend to clients that they acquire, long and/or short positions in such securities and instruments.

        In connection with the offering the underwriters may engage in stabilizing transactions, over-allotment transactions, syndicate covering transactions and penalty bids in accordance with Regulation M under the Exchange Act.

    Stabilizing transactions permit bids to purchase the underlying security so long as the stabilizing bids do not exceed a specified maximum.

    Over-allotment involves sales by the underwriters of shares in excess of the number of shares the underwriters are obligated to purchase, which creates a syndicate short position. The short position may be either a covered short position or a naked short position. In a covered short position, the number of shares over-allotted by the underwriters is not greater than the number of shares that they may purchase in the over-allotment option. In a naked short position, the number of shares involved is greater than the number of shares in the over-allotment option. The underwriters may close out any covered short position by either exercising their over-allotment option and/or purchasing shares in the open market.

    Syndicate covering transactions involve purchases of the common stock in the open market after the distribution has been completed in order to cover syndicate short positions. In determining the source of shares to close out the short position, the underwriters will consider, among other things, the price of shares available for purchase in the open market as compared to the price at which they may purchase shares through the over-allotment option. If the underwriters sell more shares than could be covered by the over-allotment option, a naked short position, the position can only be closed out by buying shares in the open market. A naked short position is more likely to be created if the underwriters are concerned that there could be downward pressure on

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      the price of the shares in the open market after pricing that could adversely affect investors who purchase in this offering.

    Penalty bids permit the representatives to reclaim a selling concession from a syndicate member when the common stock originally sold by the syndicate member is purchased in a stabilizing or syndicate covering transaction to cover syndicate short positions.

These stabilizing transactions, syndicate covering transactions and penalty bids may have the effect of raising or maintaining the market price of our common stock or preventing or retarding a decline in the market price of the common stock. As a result the price of our common stock may be higher than the price that might otherwise exist in the open market. These transactions may be effected on the           or otherwise and, if commenced, may be discontinued at any time.

        A prospectus in electronic format may be made available on the web sites maintained by one or more of the underwriters, or selling group members, if any, participating in this offering, and one or more of the underwriters participating in this offering may distribute prospectuses electronically. The representatives may agree to allocate a number of shares to underwriters and selling group members for sale to their online brokerage account holders. Internet distributions will be allocated by the underwriters and selling group members that will make internet distributions on the same basis as other allocations.

European Economic Area

        In relation to each Member State of the European Economic Area which has implemented the Prospectus Directive (each, a "Relevant Member State"), with effect from and including the date on which the Prospectus Directive is implemented in that Relevant Member State (the "Relevant Implementation Date"), our common shares will not be offered to the public in that Relevant Member State prior to the publication of a prospectus in relation to the common shares that has been approved by the competent authority in that Relevant Member State or, where appropriate, approved in another Relevant Member State and notified to the competent authority in that Relevant Member State, all in accordance with the Prospectus Directive, except that, with effect from and including the Relevant Implementation Date, an offer of common shares may be made to the public in that Relevant Member State at any time:

    to any legal entity that is a qualified investor as defined in the Prospectus Directive;

    to fewer than 100 or, if the Relevant Member State has implemented the relevant provision of the 2010 PD Amending Directive, 150, natural or legal persons (other than qualified investors as defined in the Prospectus Directive), as permitted under the Prospectus Directive, subject to obtaining the prior consent of the manager for any such offer; or

    in any other circumstances which do not require the publication by the issuer of a prospectus pursuant to Article 3(2) of the Prospectus Directive.

        For the purposes of this provision, the expression an "offer of common shares to the public" in relation to any shares in any Relevant Member State means the communication in any form and by any means of sufficient information on the terms of the offer and the common shares to be offered so as to enable an investor to decide to purchase or subscribe to the common shares, as the same may be varied in that Relevant Member State by any measure implementing the Prospectus Directive in that Relevant Member State. The expression "Prospectus Directive" means Directive 2003/71/EC (and amendments thereto, including the 2010 PD Amending Directive, to the extent implemented in the Relevant Member State) and includes any relevant implementing measure in each Relevant Member State, and the expression "2010 PD Amending Directive" means Directive 2010/73/EU.

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United Kingdom

        Our common stock may not be offered or sold and will not be offered or sold to any persons in the United Kingdom other than persons whose ordinary activities involve them in acquiring, holding, managing or disposing of investments (as principal or as agent) for the purposes of their businesses and in compliance with all applicable provisions of the Financial Services and Markets Act 2000 ("FSMA") with respect to anything done in relation to our common stock in, from or otherwise involving the United Kingdom.

        In addition, each underwriter:

    has only communicated or caused to be communicated and will only communicate or cause to be communicated an invitation or inducement to engage in investment activity (within the meaning of section 21 of FSMA) to persons who have professional experience in matters relating to investments falling within Article 19(5) of the Financial Services and Markets Act of 2000 (Financial Promotion) Order 2005 or in circumstances in which section 21 of FSMA does not apply to us; and

    has complied with, and will comply with all applicable provisions of FSMA with respect to anything done by it in relation to the common stock in, from or otherwise involving the United Kingdom.

Hong Kong

        The shares of common stock may not be offered or sold by means of any document other than (i) in circumstances which do not constitute an offer to the public within the meaning of the Companies Ordinance (Cap.32, Laws of Hong Kong), or (ii) to "professional investors" within the meaning of the Securities and Futures Ordinance (Cap.571, Laws of Hong Kong) and any rules made thereunder, or (iii) in other circumstances which do not result in the document being a "prospectus" within the meaning of the Companies Ordinance (Cap.32, Laws of Hong Kong), and no advertisement, invitation or document relating to the shares of common stock may be issued or may be in the possession of any person for the purpose of issue (in each case whether in Hong Kong or elsewhere), which is directed at, or the contents of which are likely to be accessed or read by, the public in Hong Kong (except if permitted to do so under the laws of Hong Kong) other than with respect to shares of common stock which are or are intended to be disposed of only to persons outside Hong Kong or only to "professional investors" within the meaning of the Securities and Futures Ordinance (Cap. 571, Laws of Hong Kong) and any rules made thereunder.

Singapore

        This prospectus has not been registered as a prospectus with the Monetary Authority of Singapore. Accordingly, this prospectus supplement, the accompanying prospectus and any other document or material in connection with the offer or sale, or invitation for subscription or purchase, of the shares of common stock may not be circulated or distributed, nor may the shares of common stock be offered or sold, or be made the subject of an invitation for subscription or purchase, whether directly or indirectly, to persons in Singapore other than (i) to an institutional investor under Section 274 of the Securities and Futures Act, Chapter 289 of Singapore (the "SFA"), (ii) to a relevant person, or any person pursuant to Section 275(1A), and in accordance with the conditions, specified in Section 275 of the SFA or (iii) otherwise pursuant to, and in accordance with the conditions of, any other applicable provision of the SFA.

        Where the shares of common stock are subscribed or purchased under Section 275 by a relevant person which is: (i) a corporation (which is not an accredited investor) the sole business of which is to hold investments and the entire share capital of which is owned by one or more individuals, each of

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whom is an accredited investor; or (ii) a trust (where the trustee is not an accredited investor) whose sole purpose is to hold investments and each beneficiary is an accredited investor, shares, debentures and units of shares and debentures of that corporation or the beneficiaries' rights and interest in that trust shall not be transferable for six months after that corporation or that trust has acquired the shares under Section 275 except: (a) to an institutional investor under Section 274 of the SFA or to a relevant person, or any person pursuant to Section 275(1A), and in accordance with the conditions, specified in Section 275 of the SFA; (b) where no consideration is given for the transfer; or (c) by operation of law.


LEGAL MATTERS

        The validity of the issuance of the shares of common stock offered hereby and certain legal matters in connection with this offering will be passed upon for Diplomat Pharmacy, Inc. by Honigman Miller Schwartz and Cohn LLP, Detroit, Michigan. The underwriters have been represented by Cravath, Swaine & Moore LLP, New York, New York, in connection with this offering.


EXPERTS

        The consolidated financial statements of Diplomat Pharmacy, Inc. as of December 31, 2013 and 2012 and for each of the three years in the period ended December 31, 2013 included in this prospectus have been so included in reliance on the report of BDO USA, LLP, an independent registered public accounting firm, given on the authority of said firm as experts in auditing and accounting.

        The consolidated financial statements of American Homecare Federation, Inc. as of September 30, 2013 and for the nine months ended September 30, 2013 included in this prospectus have been so included in reliance on the reports of Plante Moran PLLC, an independent certified public accounting firm, given on the authority of said firm as experts in auditing and accounting.

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WHERE YOU CAN FIND MORE INFORMATION

        We have filed with the SEC a registration statement, of which this prospectus is a part of, on Form S-1 under the Securities Act with respect to the shares of common stock offered hereby. This prospectus does not contain all of the information set forth in the registration statement and the exhibits, amendments and schedules thereto. Statements contained in this prospectus relating to the contents of any contract, agreement or other document are not necessarily complete, and, in each instance, we encourage you to read in its entirety the copy of the contract, agreement or other document filed as an exhibit to the registration statement. Whenever this prospectus refers to any contract, agreement or other document, you should refer to the exhibits that are a part of the registration statement for a copy of the contract, agreement or document. A copy of the registration statement, including the exhibits thereto, may be read and copied at the SEC's Public Reference Room at 100 F Street, N.E., Washington, D.C. 20549. Information on the operation of the Public Reference Room may be obtained by calling the SEC at 1-800-SEC-0330. In addition, the SEC maintains an Internet website that contains reports, proxy statements and other information about issuers, like us, that file electronically with the SEC; you may inspect these reports and other information without charge on that Internet website. The address of that site is www.sec.gov.

        As a result of this offering, we will become subject to the informational requirements of the Exchange Act. We will fulfill our obligations with respect to such requirements by filing periodic reports and other information with the SEC. We intend to furnish our shareholders with annual reports containing consolidated financial statements certified by an independent public accounting firm.

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INDEX TO THE CONSOLIDATED FINANCIAL STATEMENTS

 
  Page  

Financial Statements of Diplomat Pharmacy, Inc.

       

Audited Financial Statements:

       

Report of Independent Registered Public Accounting Firm

    F-2  

Consolidated Balance Sheets as of December 31, 2013 and 2012

    F-3  

Consolidated Statements of Operations for the years ended December 31, 2013, 2012 and 2011

    F-4  

Consolidated Statements of Cash Flows for the years ended December 31, 2013, 2012, and 2011

    F-5  

Consolidated Statements of Shareholders' (Deficit) Equity for the years ended December 31, 2013, 2012 and 2011

    F-6  

Notes to Consolidated Financial Statements

    F-7  

Unaudited Financial Statements:

   
 
 

Condensed Consolidated Balance Sheets as of March 31, 2014 and December 31, 2013

    F-27  

Condensed Consolidated Statements of Operations for the three months ended March 31, 2014 and 2013

    F-28  

Condensed Consolidated Statements of Cash Flows for the three months ended March 31, 2014 and 2013

    F-29  

Condensed Consolidated Statements of Shareholders' Deficit for the three months ended March 31, 2014

    F-30  

Notes to Condensed Consolidated Financial Statements

    F-31  

Financial Statements of American Homecare Federation, Inc.

   
 
 

Independent Auditor's Report

    F-48  

Consolidated Balance Sheet as of September 30, 2013

    F-49  

Consolidated Statement of Operations and Comprehensive Income for the nine months ended September 30, 2013

    F-50  

Consolidated Statement of Changes in Stockholders' Equity for the nine months ended September 30, 2013

    F-51  

Consolidated Statement of Cash Flows for the nine months ended September 30, 2013

    F-52  

Notes to Consolidated Financial Statements

    F-53  

Unaudited Pro Forma Combined Financial Information of Diplomat Pharmacy, Inc.

   
 
 

Pro forma Combined Consolidated Balance Sheet as of March 31, 2014

    F-63  

Pro forma Combined Consolidated Statement of Operations for the three months ended March 31, 2014

    F-64  

Pro forma Combined Consolidated Statement of Operations for the year ended December 31, 2013

    F-65  

Notes to Pro forma Combined Consolidated Financial Information

    F-66  

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REPORT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM

Board of Directors and Shareholders
Diplomat Pharmacy, Inc.
Flint, Michigan

        We have audited the accompanying consolidated balance sheets of Diplomat Pharmacy, Inc. as of December 31, 2013 and 2012 and the related consolidated statements of operations, shareholders' (deficit) equity, and cash flows for each of the three years in the period ended December 31, 2013. These financial statements are the responsibility of the Company's management. Our responsibility is to express an opinion on these financial statements based on our audits.

        We conducted our audits in accordance with the standards of the Public Company Accounting Oversight Board (United States). Those standards require that we plan and perform the audit to obtain reasonable assurance about whether the financial statements are free of material misstatement. The Company is not required to have, nor were we engaged to perform, an audit of its internal control over financial reporting. Our audits included consideration of internal control over financial reporting as a basis for designing audit procedures that are appropriate in the circumstances, but not for the purpose of expressing an opinion on the effectiveness of the Company's internal control over financial reporting. Accordingly, we express no such opinion. An audit also includes examining, on a test basis, evidence supporting the amounts and disclosures in the financial statements, assessing the accounting principles used and significant estimates made by management, as well as evaluating the overall financial statement presentation. We believe that our audits provide a reasonable basis for our opinion.

        In our opinion, the consolidated financial statements referred to above present fairly, in all material respects, the financial position of Diplomat Pharmacy, Inc. at December 31, 2013 and 2012, and the results of its operations and its cash flows for each of the three years in the period ended December 31, 2013, in conformity with accounting principles generally accepted in the United States of America.

/s/ BDO USA, LLP

Troy, Michigan
June 27, 2014

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DIPLOMAT PHARMACY, INC.

Consolidated Balance Sheets

 
  December 31,  
 
  2013   2012  
 
  (Dollars in Thousands,
Except Par Values)

 

ASSETS

             

Current assets:

             

Cash and cash equivalents

  $ 9,109   $  

Accounts receivable, net

    104,047     71,634  

Other receivables

    6,082     3,961  

Inventories

    56,454     41,206  

Notes receivable from related parties

    2,165     96  

Prepaid expenses and other current assets

    1,924     2,485  
           

Total current assets

    179,781     119,382  

Property and equipment, net

   
12,378
   
12,634
 

Capitalized software for internal use, net

    6,564     4,605  

Goodwill

    1,537      

Definite-lived intangible assets, net

    7,100      

Investment in non-consolidated entity

    3,577     2,133  

Other noncurrent assets

    840     841  
           

  $ 211,777   $ 139,595  
           
           

LIABILITIES AND SHAREHOLDERS' DEFICIT

             

Current liabilities:

             

Accounts payable

  $ 142,353   $ 104,567  

Line of credit

    62,622     27,020  

Short-term debt, including current portion of long-term debt

    6,693     4,126  

Accrued compensation

    2,703     2,197  

Other accrued expenses

    2,296     2,269  
           

Total current liabilities

    216,667     140,179  

Long-term debt, less current portion

   
18,849
   
31,956
 

Other noncurrent liabilities

    673      

Commitments and contingencies

   
 
   
 
 

Shareholders' deficit:

   
 
   
 
 

Common stock:

             

Class A voting shares ($1.00 par value; 5,000 authorized shares; 195 issued and outstanding shares at both December 31, 2013 and 2012)

         

Class B non-voting shares ($1.00 par value; 95,000 authorized shares; 4,080 issued and outstanding shares at both December 31, 2013 and 2012)

    4     4  

Additional paid-in capital

    4,446     3,560  

Accumulated deficit

    (28,862 )   (36,104 )
           

Total shareholders' deficit

    (24,412 )   (32,540 )
           

  $ 211,777   $ 139,595  
           
           

   

See accompanying notes to consolidated financial statements.

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DIPLOMAT PHARMACY, INC.

Consolidated Statements of Operations

 
  Year Ended December 31,  
 
  2013   2012   2011  
 
  (Dollars in Thousands,
Except Per Share Amounts)

 

Net sales

  $ 1,515,139   $ 1,126,943   $ 771,962  

Cost of goods sold

    (1,426,112 )   (1,057,608 )   (715,448 )
               

Gross profit

    89,027     69,335     56,514  

Selling, general and administrative expenses

   
(77,944

)
 
(64,392

)
 
(47,434

)
               

Income from operations

    11,083     4,943     9,080  

Interest expense

   
(1,996

)
 
(1,086

)
 
(598

)

Equity loss of non-consolidated entity

    (1,055 )   (267 )   (95 )

Other income

    196     337     764  
               

Net income / net comprehensive income

  $ 8,228   $ 3,927   $ 9,151  
               
               

Net Income Per Common Share:

                   

Basic

  $ 1,924.70   $ 878.35   $ 1,759.77  
               
               

Diluted

  $ 1,885.45   $ 853.50   $ 1,723.13  
               
               

Weighted Average Shares Outstanding:

                   

Basic

    4,275     4,471     5,200  

Diluted

    4,364     4,602     5,311  

Pro Forma Data (Unaudited) (Note 14):

   
 
   
 
   
 
 

Income before income taxes

  $ 8,228   $ 3,927   $ 9,151  

Income tax provision

    (2,911 )   (1,558 )   (3,307 )
               

Net income / net comprehensive income

  $ 5,317   $ 2,369   $ 5,844  
               
               

Pro Forma Net Income Per Common Share (Unaudited):

                   

Basic

  $ 1,243.68   $ 529.99   $ 1,123.87  
               
               

Diluted

  $ 1,218.32   $ 515.00   $ 1,100.42  
               
               

   

See accompanying notes to consolidated financial statements.

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DIPLOMAT PHARMACY, INC.

Consolidated Statements of Cash Flows

 
  Year Ended December 31,  
 
  2013   2012   2011  
 
  (Dollars in Thousands)
 

Cash Flows From Operating Activities

                   

Net income

  $ 8,228   $ 3,927   $ 9,151  

Adjustments to reconcile net income to net cash provided from operating activities:

                   

Depreciation and amortization

    3,934     3,842     3,079  

Equity loss of non-consolidated entity

    1,055     267     95  

Asset impairment

    932          

Share-based compensation expense

    886     915     1,410  

Net provision for doubtful accounts

    873     605     1,162  

Amortization of debt issuance costs

    204     85      

Loss on disposal of property and equipment

    13     29     230  

Certain expenses paid with notes

        480      

Changes in operating assets and liabilities, net of acquired business:

                   

Accounts receivable

    (29,774 )   (23,833 )   (13,437 )

Inventories

    (14,109 )   (13,995 )   (1,402 )

Accounts payable

    36,138     31,854     12,504  

Other assets and liabilities

    (2,153 )   830     (253 )
               

Net cash provided from operating activities

    6,227     5,006     12,539  

Cash Flows From Investing Activities

   
 
   
 
   
 
 

Payment to acquire business, net of cash acquired

    (10,232 )        

Expenditures for capitalized software for internal use

    (4,679 )   (1,105 )   (1,294 )

Expenditures for property and equipment

    (852 )   (3,214 )   (4,443 )

Capital investment in non-consolidated entity

    (2,500 )   (1,500 )   (994 )

Net (issuance) repayment of related party notes receivable

    (2,069 )   829     (188 )

Net proceeds from sale of property and equipment

    40     141     172  
               

Net cash used by investing activities

    (20,292 )   (4,849 )   (6,747 )

Cash Flows From Financing Activities

   
 
   
 
   
 
 

Net proceeds from (payments on) line of credit

    35,602     23,390     (6,500 )

Payments on long term debt

    (10,540 )   (7,893 )   (726 )

Proceeds from long term debt

            474  

Debt issuance and finance activity costs

    (204 )   (892 )    

Shareholder distributions

    (1,684 )   (10,868 )   (1,109 )

Payments associated with stock and stock option redemptions

        (3,894 )    
               

Net cash provided from (used by) financing activities

    23,174     (157 )   (7,861 )

Increase (decrease) in cash and cash equivalents

   
9,109
   
   
(2,069

)

Cash and cash equivalents at beginning of year

   
   
   
2,069
 
               

Cash and cash equivalents at end of year

  $ 9,109   $   $  
               
               

Supplemental Cash Flow Information

                   

Cash interest paid

  $ 1,793   $ 1,041   $ 596  

Issuance of notes payable associated with stock and stock option redemptions

        28,249      

Distributions declared, not yet paid

        6,413      

Forgiveness of note receivable

        196      

   

See accompanying notes to consolidated financial statements.

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DIPLOMAT PHARMACY, INC.

Consolidated Statements of Shareholders' (Deficit) Equity

 
  Common Stock    
   
   
 
 
  Class A
Voting
  Class B
Non-Voting
  Additional
Paid-in
Capital
  Accumulated
Deficit
  Total  
 
  (Dollars in Thousands)
 

Balance at January 1, 2011

  $   $ 5   $ 2,388   $ (87 ) $ 2,306  

Net income / net comprehensive income

   
   
   
   
9,151
   
9,151
 

Share-based compensation expense

            1,410         1,410  

Shareholder distributions

                (1,109 )   (1,109 )
                       

Balance at December 31, 2011

        5     3,798     7,955     11,758  

Net income / net comprehensive income

   
   
   
   
3,927
   
3,927
 

Stock redemptions

          (1 )   (640 )   (28,752 )   (29,393 )

Share-based compensation expense

            915         915  

Redemption of certain stock options

            (513 )   (1,953 )   (2,466 )

Shareholder distributions

                (17,281 )   (17,281 )
                       

Balance at December 31, 2012

        4     3,560     (36,104 )   (32,540 )

Net income / net comprehensive income

   
   
   
   
8,228
   
8,228
 

Share-based compensation expense

            886         886  

Shareholder distributions

                (986 )   (986 )
                       

Balance at December 31, 2013

  $   $ 4   $ 4,446   $ (28,862 ) $ (24,412 )
                       
                       

   

See accompanying notes to consolidated financial statements.

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DIPLOMAT PHARMACY, INC.

Notes to Consolidated Financial Statements

(Dollars in Thousands, Except Per Share Amounts)

1. BASIS OF PRESENTATION AND SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES

        Business Activity:     Diplomat Pharmacy, Inc. d/b/a Diplomat Specialty Pharmacy (the "Company") is a specialty pharmacy sales business and includes all of its wholly owned subsidiaries including American Homecare Federation, Inc. ("AHF") that was acquired in December 2013. The Company stocks, dispenses and distributes prescriptions for various biotech and specialty pharmaceuticals and operates as one reportable segment. The Company has its corporate headquarters and main distribution facility in Flint, Michigan and maintains seven other pharmacy locations in Michigan, Illinois, Florida, California, Connecticut and Massachusetts.

        Financial Statement Presentation:     The audited consolidated financial statements of the "Company have been prepared in accordance with accounting principles generally accepted in the United States of America ("U.S. GAAP").

        Principles of Consolidation:     The consolidated financial statements include the accounts of the Diplomat Pharmacy, Inc. and all of its wholly-owned subsidiaries. The Company also owns a 25% interest in a non-consolidated entity which is accounted for under the equity method of accounting. All intercompany transactions and accounts have been eliminated in consolidation.

        Use of Estimates:     The preparation of financial statements in conformity with U.S. GAAP requires management to make estimates and assumptions that affect the amounts reported therein. Due to the inherent uncertainty involved in making estimates, actual results reported in future periods may be based upon amounts that differ from these estimates.

        Concentrations of Risk:     Financial instruments which potentially subject the Company to concentrations of credit risk consist principally of cash on deposit with banks or other financial institutions and trade accounts receivable.

        A federal program provides non-interest bearing cash balances insurance coverage up to $250 per depositor at each financial institution. The Company's cash balances may exceed federally insured limits.

        Concentration of credit risk with respect to trade receivables is limited by the large number of patients comprising the Company's customer base and their dispersion across multiple payors and multiple geographic areas. As of December 31, 2013 and 2012, the Company had no significant trade receivable concentrations of credit risk.

        Cash Equivalents:     The Company considers all highly liquid investments with maturities of 90 days or less from the date of purchase to be cash equivalents.

        Accounts Receivable and Allowance for Doubtful Accounts:     Accounts receivable primarily include amounts from third-party pharmacy benefit managers and insurance providers and are based on contracted prices. Trade receivables require no collateral and are on an unsecured basis. Accounts receivable terms vary by payor, but generally are due within 30 days after the sale of the product or performance of the service.

        The Company maintains an allowance for doubtful accounts that reduces receivables to amounts that are expected to be collected. In estimating the allowance, management considers factors such as current overall economic conditions, historical and anticipated customer performance, historical

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DIPLOMAT PHARMACY, INC.

Notes to Consolidated Financial Statements (Continued)

(Dollars in Thousands, Except Per Share Amounts)

1. BASIS OF PRESENTATION AND SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES (Continued)

experience with write-offs, and the level of past due accounts. Changes in these conditions may result in additional allowances. Once an amount is deemed to be uncollectible, the amount is written off against the allowance.

        The following is a rollforward of the Company's allowance for doubtful accounts for the three years ended December 31, 2013:

Balance at January 1, 2011

  $ (547 )

Provisions

    (1,162 )

Write-offs, net of settlements

    1,034  
       

Balance at December 31, 2011

    (675 )

Provisions

    (605 )

Write-offs, net of settlements

    529  
       

Balance at December 31, 2012

    (751 )

Provisions

    (873 )

Acquired allowance (Note 2)

    (107 )

Write-offs, net of settlements

    775  
       

Balance at December 31, 2013

  $ (956 )
       
       

        Inventories:     Inventories are stated at the lower of cost or market and consist primarily of prescription medications, over-the-counter ("OTC") medications and medical supplies. Cost is determined using the first-in, first-out method and are adjusted to actual cost quarterly based on a physical count. Inventory is returnable and fully refundable before six months of expiration, and any remaining expired medication is relieved from inventory quarterly. The Company records an estimated reserve for service fees and other deductions from the refund expected for returns of expired medication.

        Property and Equipment:     Property and equipment are valued at cost less accumulated depreciation. Expenditures for maintenance and repairs are expensed as incurred, while expenditures that increase asset lives are capitalized. Depreciation is computed generally on a straight-line basis over the estimated useful lives of the assets. For income tax purposes, accelerated methods of depreciation are generally used.

        When items of property or equipment are sold or retired, the related cost and accumulated depreciation are removed from the accounts, and any gain or loss is included in earnings.

        Construction in progress is stated at cost, which includes the cost of construction and other direct costs attributable to the construction. No provision for depreciation is made on construction in progress until such time as the relevant assets are completed and put into use.

        Assets held for sale are carried at the lower of their historical depreciated costs or estimated fair values less costs to sell.

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Table of Contents


DIPLOMAT PHARMACY, INC.

Notes to Consolidated Financial Statements (Continued)

(Dollars in Thousands, Except Per Share Amounts)

1. BASIS OF PRESENTATION AND SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES (Continued)

        Capitalized Software for internal use:     The Company has also developed software for internal use. The Company expenses the costs incurred during the preliminary project stage, and capitalizes the direct development costs (including the associated payroll and related costs for employees working on development, and outside contractor costs) during the application development stage. The Company monitors development on an ongoing basis and capitalizes the costs of any major improvements or new functionality. Amortization is computed generally on a straight-line basis over the estimated useful lives of the assets. For income tax purposes, accelerated methods of amortization are generally used.

        Goodwill:     Goodwill represents excess purchase price paid for a business over the estimated fair value of its acquired net assets related to the Company's acquisition of AHF on December 16, 2013. See Note 2 for further details.

        Goodwill will be reviewed for impairment annually, or more frequently if impairment indicators exist. Accounting guidance provides the option of performing a qualitative assessment that may allow companies to forego the annual two-step quantitative impairment test for goodwill if it is determined that the fair value of the applicable reporting unit is more likely than not greater than its carrying value. This qualitative assessment evaluates various events and circumstances, such as macro-economic conditions, industry and market conditions, cost factors, relevant events and financial trends, that may impact a reporting unit's fair value. If the two-step impairment test for goodwill is deemed necessary, this quantitative impairment analysis compares the fair values of the Company's reporting units to their related carrying values. If a reporting unit carrying value exceeds its fair value, the Company must then calculate the reporting unit's implied fair value of goodwill and impairment charges are recorded for any excess of the goodwill carrying value over the implied fair value of goodwill. The reporting units' fair values are based upon consideration of various valuation methodologies, including projected future cash flows discounted at rates commensurate with the risks involved, guideline transaction multiples, and multiples of current and future earnings.

        Definite-Lived Intangible Assets:     Intangible assets consist of the assets related to the acquisition of AHF, and are amortized over their estimated useful lives using the accelerated method for patient relationships, and the straight line method for the remaining intangible assets.

        Long-Lived Asset Impairment Testing:     Long-lived assets, which include property, equipment, capitalized software, investment in non-consolidated entity and definite-lived intangible assets, are periodically reviewed for impairment indicators. In assessing long-lived assets for impairment, assets are grouped with other assets and liabilities at the lowest level for which identifiable cash flows are largely independent of the cash flows of other assets and liabilities. If impairment indicators exist, the Company performs an undiscounted cash flow test to determine recoverability. If this recoverability test identifies a possible impairment, management will perform a fair value analysis. Fair values of long-lived assets are determined through various techniques, such as applying probability weighted, expected present value calculations to the estimated future cash flows using assumptions a market participant would utilize or through the use of valuation specialists. The Company compares the fair value of the long-lived asset to it net carrying value and an impairment charge is recorded for the amount by which the net carrying value of the long-lived asset exceeds its fair value.

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Table of Contents


DIPLOMAT PHARMACY, INC.

Notes to Consolidated Financial Statements (Continued)

(Dollars in Thousands, Except Per Share Amounts)

1. BASIS OF PRESENTATION AND SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES (Continued)

        Debt Issuance Costs:     Debt issuance costs related to the Company's revolving line of credit are capitalized within "Other noncurrent assets" and amortized as interest expense on a straight-line basis over the term of the agreement for which the fees were paid.

        Share-Based Compensation:     The Company expenses the grant date fair values of its employee stock options over their respective vesting periods on a straight-line basis. Estimating grant date fair values for employee stock options requires management to make assumptions regarding the current value of the Company's common shares, expected volatility of value of those underlying shares, the risk-free rate over the expected life of the stock options, and the date on which share-based payments will be settled. The Company estimates its common share fair value using the income approach and market approach using the market comparable method. Expected volatility is based on an implied volatility for a group of healthcare companies as of the measurement date. Risk-free rate is determined based upon U.S. Treasury rates over the estimated expected option lives. Expected dividend yield is zero as the Company does not anticipate that any dividends will be declared during the expected term of the options. Expected option life is less than the option term. If actual results differ significantly from these estimates and assumptions, particularly in relation to management's estimation of volatility which requires the most judgment due to the Company being a private entity, share-based compensation expense, primarily with respect to future share-based awards, could be materially impacted.

        Revenue Recognition:     The Company recognizes revenue from prescription drug sales for home delivery at the time the drugs are shipped. Revenues from dispensing specialty prescriptions that are filled at an open door or retail pharmacy location are recorded at prescription adjudication, which approximates fill date. Sales taxes are presented on a net basis (excluded from revenues and costs). Revenues generated from prescription drugs were $1,504,534, $1,119,775 and $767,625 for the years ended December 31, 2013, 2012 and 2011, respectively.

        Shipping and handling costs are not billed to patients; therefore, there are no shipping and handling revenues. Conversely, the Company recognizes shipping and handling costs as incurred by the Company as a component of "Selling, general and administrative expenses" and were $10,123, $8,203 and $5,548 for the years ended December 31, 2013, 2012 and 2011, respectively.

        The Company recognizes revenue from service, data and consulting services when the services have been performed and the earnings process is complete. Revenues generated from service, data and consulting services were approximately $10,606, $7,168 and $4,337 for the years ended December 31, 2013, 2012 and 2011, respectively.

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Table of Contents


DIPLOMAT PHARMACY, INC.

Notes to Consolidated Financial Statements (Continued)

(Dollars in Thousands, Except Per Share Amounts)

1. BASIS OF PRESENTATION AND SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES (Continued)

        The Company derived its revenue from the following therapeutic classes:

 
  For the year ended December 31,  
 
  2013   2012   2011  

Oncology

  $ 736,987   $ 495,028   $ 353,684  

Immunology(1)

    378,685     319,092     216,069  

Multiple Sclerosis

    169,470     110,947     71,199  

Other (none greater than 10%)

    229,997     201,876     131,010  
               

Total Revenue

  $ 1,515,139   $ 1,126,943   $ 771,962  
               
               

(1)
Includes drugs dispensed to treat arthritis, crohn's disease and psoriasis.

        Advertising and Marketing Costs:     Advertising and marketing costs are expensed as incurred and were $823, $604 and $1,004 for the years ended December 31, 2013, 2012 and 2011, respectively.

        Income Taxes:     The Company had elected to be taxed under the provisions of Subchapter S of the Internal Revenue Code. Under these provisions, the Company did not pay federal corporate income taxes on its taxable income. Instead, the stockholders were liable for individual federal income taxes on their respective shares of the Company's taxable income. Distributions were made periodically to the Company's shareholders to the extent needed to cover their income tax liability based on the Company's taxable income. See Note 14 for discussion on the Company's subsequent change to its income tax status.

        New Accounting Pronouncements:     In February 2013, the Financial Accounting Standards Board ("FASB") issued Accounting Standards Update ("ASU") No. 2013-4, Liabilities (Topic 405): Obligations Resulting from Joint and Several Liability Arrangements for Which the Total Amount of the Obligation is Fixed at the Reporting Date . This ASU is effective for interim and annual periods beginning after December 15, 2013 and requires the measurement of obligations resulting from joint and several liability arrangements for which the total amount of the obligation is fixed at the reporting date as the sum of: a) the amount the reporting entity agreed to pay on the basis of its arrangement among its co-obligors; and b) any additional amount the reporting entity expects to pay on behalf of its co-obligors. Required disclosures include a description of the joint-and-several arrangement and the total outstanding amount of the obligation for all joint parties. The Company anticipates the adoption of this guidance will have minimal impact on its financial position, results of operations, cash flows or disclosures.

        In July 2013, the FASB issued ASU No. 2013-11 , Income Taxes (Topic 740): Presentation of an Unrecognized Tax Benefit When a Net Operating Loss Carryforward, a Similar Tax Loss, or a Tax Credit Carryforward Exists. This ASU is effective for fiscal years and interim periods beginning after December 15, 2013 and changes the presentation of unrecognized tax benefits. The Company is currently evaluating the impact that the adoption of this guidance will have on its financial position, results of operations, cash flows and/or disclosures.

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Table of Contents


DIPLOMAT PHARMACY, INC.

Notes to Consolidated Financial Statements (Continued)

(Dollars in Thousands, Except Per Share Amounts)

1. BASIS OF PRESENTATION AND SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES (Continued)

        In April 2014, the FASB issued ASU No. 2014-8 , Presentation of Financial Statements (Topic 205) and Property, Plant, and Equipment (Topic 360): Reporting Discontinued Operations and Disclosures of Disposals of Components of an Entity. This ASU is effective within annual periods beginning on or after December 15, 2014, and interim periods within annual periods beginning on or after December 15, 2015 with early adoption permitted in certain circumstances. This ASU changes the requirements for reporting discontinued operations. The Company is currently evaluating the impact that the adoption of this guidance will have on its financial position, results of operations, cash flows and/or disclosures.

        In May 2014, the FASB issued ASU No. 2014-9 , Revenue from Contracts with Customers (Topic 606). This ASU is effective for annual periods beginning after December 15, 2016, including interim periods within that reporting period. This ASU changes the requirements for revenue recognition. The Company is currently evaluating the impact that the adoption of this guidance will have on its financial position, results of operations, cash flows and/or disclosures.

2. BUSINESS ACQUISITION

        On December 16, 2013, the Company acquired all of the authorized, issued and outstanding shares of capital stock of AHF for a total acquisition price of approximately $13,449, excluding related acquisition costs of approximately $662 that were expensed. Included in the total acquisition price was approximately $12,100 in cash and contingent consideration fair valued at $1,300, with a maximum payout of $2,000 that is based on achieving certain revenue and gross profit targets. At the closing of the acquisition, approximately $1,353 of the purchase consideration was deposited into an escrow account that will be held for two years after the closing date to satisfy any of the Company's indemnification claims.

        AHF provides clotting medications, ancillaries and supplies to individuals with bleeding disorders, such as hemophilia. AHF has provided uninterrupted state-of-the-art services exclusively to the bleeding disorders community since 1989. The acquisition of AHF will allow the Company to participate in AHF's direct purchase agreements with key hemophilia manufacturers while also providing AHF access to the Company's proprietary care management modules to better manage clinical care of the AHF patients. The Company ascribes significant value to the cost reductions as well as synergies and other benefits that do not meet the recognition criteria of acquired identifiable intangible assets. Accordingly, the value of these components is included within goodwill. The acquisition is treated as a stock purchase for accounting purposes, and the goodwill resulting from this acquisition is not deductible for tax purposes. The results of operations for AHF are included in the Company's consolidated financial statements from the acquisition date, which were not material for the year ended December 31, 2013.

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DIPLOMAT PHARMACY, INC.

Notes to Consolidated Financial Statements (Continued)

(Dollars in Thousands, Except Per Share Amounts)

2. BUSINESS ACQUISITION (Continued)

        A summary of the preliminary allocation of the purchase consideration for AHF is as follows:

Cash and cash equivalents

  $ 1,917  

Accounts receivable, net

    3,512  

Inventories

    1,138  

Prepaid expenses and other current assets

    27  

Property and equipment

    158  

Goodwill

    1,537  

Definite-lived intangible assets

    7,100  

Current liabilities

    (1,940 )
       

  $ 13,449  
       
       

        The following unaudited pro forma results assume that the AHF acquisition occurred as of January 1, 2012 and are inclusive of purchase price adjustments. This pro forma information is not necessarily indicative of the results that actually would have been obtained had the acquisition been in effect for the periods presented nor that may be obtained in the future.

 
  Year Ended December 31,  
 
  2013   2012  

Net sales

  $ 1,543,548   $ 1,158,862  
           
           

Net income

  $ 9,067   $ 3,778  
           
           

Net income per common share—basic

  $ 2,120.90   $ 844.89  
           
           

Net income per common share—diluted

  $ 2,077.64   $ 820.99  
           
           

        Definite-lived intangible assets that were acquired and their respective useful lives are as follows:

 
  Useful Life   Amount  

Patient relationships

  10 years   $ 5,100  

Trade names and trademarks

  10 years     1,400  

Non-compete employment agreements

  5 years     600  
           

      $ 7,100  
           
           

        Given the proximity of the acquisition date to year-end, the Company recorded no amortization expense for the year ended December 31, 2013. Amortization of these definite-lived intangible assets

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Table of Contents


DIPLOMAT PHARMACY, INC.

Notes to Consolidated Financial Statements (Continued)

(Dollars in Thousands, Except Per Share Amounts)

2. BUSINESS ACQUISITION (Continued)

began in 2014. The Company's estimated future amortization expense for these definite-lived intangible assets is as follows:

2014

  $ 903  

2015

    869  

2016

    838  

2017

    806  

2018

    777  

Thereafter

    2,907  
       

  $ 7,100  
       
       

3. FAIR VALUE MEASUREMENTS

        Accounting guidance clarifies that fair value is an exit price, representing the amount that would be received to sell an asset or paid to transfer a liability in an orderly transaction between market participants. As such, fair value is a market-based measurement that should be determined based upon assumptions that market participants would use in pricing an asset or liability. As a basis for considering such assumptions, a three-tier fair value hierarchy was established, which prioritizes the inputs used in measuring fair value as follows:

Level 1:   Observable inputs such as quoted prices in active markets;

Level 2:

 

Inputs, other than quoted prices in active markets, that are observable either directly or indirectly; and

Level 3:

 

Unobservable inputs in which there is little or no market data, which require the reporting entity to develop its own assumptions.

        An asset's or liability's fair value measurement level within the fair value hierarchy is based on the lowest level of any input that is significant to the fair value measurement. Valuation techniques used need to maximize the use of observable inputs and minimize the use of unobservable inputs.

        Assets and liabilities measured at fair value are based on one or more of the following three valuation techniques noted in FASB ASC Topic 820:

    A.
    Market approach: Prices and other relevant information generated by market transactions involving identical or comparable assets or liabilities.

    B.
    Cost approach: Amount that would be required to replace the service capacity of an asset (replacement cost).

    C.
    Income approach: Techniques to convert future amounts to a single present amount based upon market expectations (including present value techniques, option-pricing and excess earnings models).

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Table of Contents


DIPLOMAT PHARMACY, INC.

Notes to Consolidated Financial Statements (Continued)

(Dollars in Thousands, Except Per Share Amounts)

3. FAIR VALUE MEASUREMENTS (Continued)

        Assets and liabilities of the Company remeasured and disclosed at fair value on a recurring basis at December 31, 2013 and 2012 are set forth in the table below:

 
  Asset
(Liability)
  Level 2   Valuation
Technique

December 31, 2013:

               

Interest rate swap contract

  $ (16 ) $ (16 ) C

December 31, 2012:

   
 
   
 
 

 

Interest rate swap contract

  $ (53 ) $ (53 ) C

        The significant inputs, primarily the LIBOR yield curve, used to determine the fair value of the Company's interest rate swap contract were considered Level 2 observable market inputs. The Company monitored the credit and nonperformance risk associated with its counterparty and believed them to be insignificant and not warranting a credit adjustment at December 31, 2013 and 2012.

        The Company's interest rate swap agreement had an original notional amount of $2,160, equal to a mortgage loan with Bank of America. The purpose of the swap agreement was to fix the interest rate on the monthly balance of the mortgage and reduce exposure to interest rate fluctuations. Under the agreement, the Company paid the counterparty interest at a fixed rate of 2.72% and received interest at a variable rate, adjusted quarterly and based on LIBOR. Because this instrument is not classified as a hedging activity, changes in the fair value of this instrument are included in interest expense on the accompanying statements of operations. Fair value of the interest rate swap agreement was recorded in "Other accrued expenses" on the consolidated balance sheets.

        Assets and liabilities of the Company measured at fair value on a nonrecurring basis at December 31, 2013 are set forth in the table below:

 
  Asset
(Liability)
  Level 3   Gain
(Loss)
  Valuation
Technique

December 31, 2013:

                     

Assets held for sale

  $ 300   $ 300   $ (932 ) C

        Assets held for sale, which represent certain properties and are contained within "Prepaid expenses and other current assets" on the consolidated balance sheets, with a carrying value of $1,232 as of December 31, 2012 were written down to their fair value of $300, resulting in an impairment charge of $932, which was recorded within "Selling, general and administrative expenses" for the year ended December 31, 2013. The Company determined the fair value of these assets through the use of a realtor.

        There were no assets nor liabilities measured at fair value on a nonrecurring basis at December 31, 2012 that required any adjustments to their respective carrying values.

        The carrying amounts of the Company's financial instruments, consisting primarily of cash and cash equivalents, accounts receivable, accounts payable and other liabilities, approximate their estimated fair values due to the relative short-term nature of the amounts. The carrying amount of debt approximates fair value due to variable interest rates at customary terms and rates the Company could obtain in current financing.

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Table of Contents


DIPLOMAT PHARMACY, INC.

Notes to Consolidated Financial Statements (Continued)

(Dollars in Thousands, Except Per Share Amounts)

4. INVENTORIES

        Inventories consist of the following:

 
  December 31,
2013
  December 31,
2012
 

Prescription medications, OTC medications and medical supplies, and retail items

  $ 56,155   $ 40,912  

Raw materials

    284     280  

Finished goods

    15     14  
           

  $ 56,454   $ 41,206  
           
           

5. PROPERTY AND EQUIPMENT

        Property and equipment are recorded at cost and are depreciated over the estimated useful lives of the respective assets using the straight-line method. Depreciation expense for the years ended December 31, 2013, 2012 and 2011 was $1,365, $1,798 and $1,144, respectively.

        Property and equipment consist of the following:

 
  Useful Life   December 31,
2013
  December 31,
2012
 

Land

    $ 332   $ 332  

Buildings

  40 years     7,419     6,543  

Building and leasehold improvements

  5 - 15 years*     889     656  

Equipment and fixtures

  5 - 10 years     6,465     6,183  

Computer equipment

  3 - 5 years     2,096     2,389  

Vehicles

  5 years     82     268  

Construction in progress

      25     59  
               

        17,308     16,430  

Accumulated depreciation

        (4,930 )   (3,796 )
               

      $ 12,378   $ 12,634  
               
               

*
Unless applicable lease term is shorter

        Included in "Prepaid expenses and other current assets" on the consolidated balance sheets are certain properties held for sale with carrying values of $300 and $1,232 as of December 31, 2013 and 2012, respectively. See Note 3 that describes a $932 impairment loss that was recognized during the year ended December 31, 2013 associated with these held for sale assets.

6. CAPITALIZED SOFTWARE FOR INTERNAL USE

        Capitalized software for internal use is recorded at cost and is amortized over the estimated useful lives of the respective assets using the straight-line method. Amortization expense for the years ended December 31, 2013, 2012 and 2011 was $2,568, $2,021 and $1,865, respectively.

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Table of Contents


DIPLOMAT PHARMACY, INC.

Notes to Consolidated Financial Statements (Continued)

(Dollars in Thousands, Except Per Share Amounts)

6. CAPITALIZED SOFTWARE FOR INTERNAL USE (Continued)

        Balances of capitalized software for internal use are as follows:

 
  Useful Life   December 31,
2013
  December 31,
2012
 

Capitalized software for internal use

  3 years   $ 13,638   $ 7,847  

Construction in progress

        941     2,314  
               

        14,579     10,161  

Accumulated amortization

        (8,015 )   (5,556 )
               

      $ 6,564   $ 4,605  
               
               

        The Company's estimated future amortization expense for its capitalized software for internal use is as follows:

2014

  $ 2,562  

2015

    2,110  

2016

    951  

2017

    941  
       

  $ 6,564  
       
       

7. INVESTMENT IN NON-CONSOLIDATED ENTITY

        In October 2011, the Company purchased a 25% minority interest in WorkSmartMD, L.L.C., also known as Ageology, for $5,000 of cash consideration, which was paid in installments during 2011, 2012 and 2013. No further payments or other commitments are required as of December 31, 2013.

        Ageology is an anti-aging physician network dedicated to nutrition, fitness and hormones. The Company accounts for Ageology under the equity method, as it has significant influence over its operations. The Company's portion of Ageology's net losses for the years ended December 31, 2013, 2012 and 2011 were $1,055, $267 and $95, respectively. The Company's equity investment balance in Ageology at December 31, 2013 and 2012 was $3,577 and $2,133, respectively.

        During November and December 2013, the Company entered into two $1,000 6% per annum interest-bearing promissory notes receivable from Ageology, due on demand. The notes are secured by all personal property and fixtures owned by Ageology and are included, along with accrued interest, in "Notes receivable from related parties" on the consolidated balance sheets. Also included in this account are notes receivable from certain officers at December 31, 2013 and 2012 of $154 and $96, respectively, which were fully paid in early 2014.

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Table of Contents


DIPLOMAT PHARMACY, INC.

Notes to Consolidated Financial Statements (Continued)

(Dollars in Thousands, Except Per Share Amounts)

7. INVESTMENT IN NON-CONSOLIDATED ENTITY (Continued)

        The following tables present summarized financial information of Ageology:

 
  Years Ended December 31,  
 
  2013   2012   2011  

Statements of Operations

                   

Net sales

  $ 1   $ 26   $  

Net loss

    (4,220 )   (1,069 )   (378 )

 

 
  December 31,
2013
  December 31,
2012
 

Balance Sheets

             

Current assets

  $ 633   $ 267  

Noncurrent assets

    53     782  

Current liabilities

    2,138     13  

8. LINE OF CREDIT

        On July 20, 2012, the Company entered into a five-year line of credit with General Electric Capital Corporation ("GE"). The original facility was comprised of a $60,000 revolving loan commitment, which is secured by security interest in and lien upon substantially all of the Company's assets, not otherwise encumbered. The Company maintains a depository bank account where money is swept directly to the line of credit. Advances under the revolving credit loan commitment are limited to a borrowing base that consists of approximately 85% of the book value of eligible accounts receivable. In 2013, the facility was amended to increase the aggregate revolving loan commitments under the line of credit from $60,000 to $85,000, leaving $22,378 available to borrow as of December 31, 2013. See Note 14 for discussion on the Company's subsequent amendment to further increase the aggregate revolving loan commitments under the line of credit.

        Interest on borrowings are charged at a rate equal to either: (a) the base rate, which equates to the rate last quoted by The Wall Street Journal as the "Prime Rate" or as further defined in the agreement in the absence of such, plus an applicable margin (the "Base Rate"); or (b) LIBOR, as defined by the agreement, plus an applicable margin. The applicable margin on the Base Rate borrowings is 0.75% and on LIBOR rate borrowings is 1.75%. The effective interest rate for Base Rate borrowings at December 31, 2013 was 4.00%. The effective rate on LIBOR rate borrowings at December 31, 2013 was 1.92%. At December 31, 2013, the Company had Base Rate borrowings outstanding in the amount $37,622 and LIBOR rate borrowings outstanding in the amount of $25,000. Additionally, the Company is charged a monthly unused commitment fee ranging from 0.25% to 0.50% on the average unused daily balance.

        In connection with securing this facility, the Company incurred transaction costs totaling $1,097. These costs are being amortized as interest expense over the five-year life of the line of credit.

        The revolving credit commitment with GE and the mortgage with JPMorgan Chase Bank, N.A. (Note 9) contain certain financial and non-financial covenants. The Company was in compliance with all covenants as of December 31, 2013 and 2012.

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Table of Contents


DIPLOMAT PHARMACY, INC.

Notes to Consolidated Financial Statements (Continued)

(Dollars in Thousands, Except Per Share Amounts)

9. DEBT

        Debt consists of the following:

 
  December 31,
2013
  December 31,
2012
 

Note payable to an individual; payable monthly in the amount of $242 - $282 including interest at 1.3% through January 2017; secured by redeemed shares held in escrow per the pledge agreement and subordinated to the line of credit commitment and the mortgage loan

  $ 14,252   $ 17,023  

Note payable to a shareholder; payable quarterly in the amount of $100 including interest at 1.3%; matures July 20, 2017; secured by redeemed shares held in escrow per the pledge agreement and subordinated to the line of credit commitment and the mortgage loan

   
7,235
   
7,538
 

Mortgage with JPMorgan Chase; payable in quarterly payments of principal of $124 plus interest at a rate per year equal to the adjusted LIBOR rate (2.16% effective rate at December 31, 2013) plus the floating rate (4.25% effective rate at December 31, 2013); matures June 30, 2014; secured by certain property

   
2,728
   
3,224
 

Note payable to an individual; payable quarterly in the amount of $79 including interest at 4.25%; matures July 20, 2017; secured by redeemed shares held in escrow per the pledge agreement and subordinated to the line of credit commitment and the mortgage loan

   
1,087
   
1,349
 

Note payable to an individual; payable quarterly in the amount of $40 interest free; matures June 15, 2015; unsecured and subordinated to the line of credit commitment and the mortgage loan

   
240
   
400
 

Note payable to a shareholder; payable in a lump sum plus interest at 3% when it matures January 20, 2017; unsecured and subordinated to the line of credit commitment and the mortgage loan. 

   
   
5,851
 

Capital lease payables to CISCO Capital; payable in monthly installments of $16 including interest at 2.41%; matured Oct - Dec 2013; secured by equipment

   
   
134
 

Note payable to a shareholder; payable in a lump sum plus interest at 3% when it matures January 20, 2017; unsecured and subordinated to the line of credit commitment and the mortgage loan. 

   
   
563
 
           

    25,542     36,082  

Less short-term debt, including current portion of long-term debt

    (6,693 )   (4,126 )
           

Long-term debt, less current portion

  $ 18,849   $ 31,956  
           
           

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DIPLOMAT PHARMACY, INC.

Notes to Consolidated Financial Statements (Continued)

(Dollars in Thousands, Except Per Share Amounts)

9. DEBT (Continued)

        Future principal payments required as of December 31, 2013 are as follows:

2014

  $ 6,693  

2015

    3,932  

2016

    3,382  

2017

    11,535  
       

Total

  $ 25,542  
       
       

10. COMMITMENTS AND CONTINGENCIES

Claims and Lawsuits

        The Company is subject to claims and lawsuits that arise primarily in the ordinary course of business. It is the opinion of the Company that the disposition or ultimate resolution of such claims and lawsuits will not have a material adverse effect on the consolidated financial position of the Company.

Purchase Commitments

        The Company purchases a significant portion of its prescription drug inventory from AmerisourceBergen, a prescription drug wholesaler. These purchases accounted for approximately 58%, 64% and 59% of cost of goods sold for the years ended December 31, 2013, 2012 and 2011, respectively. The Company entered into an agreement in January 2012 with AmerisourceBergen that required a minimum of $3,500,000 in purchase obligations over a five-year period. The Company fully expects to meet this requirement. Furthermore, the Company has alternative vendors available if necessary.

        The Company purchases certain prescription drugs from Celgene, a drug manufacturer. These purchases accounted for approximately 19%, 21% and 26% of cost of goods sold for the years ended December 31, 2013, 2012 and 2011, respectively, with no minimum purchase obligation.

Lease Commitments

        Capital lease obligations:     In 2010, the Company entered into four agreements to lease telephone equipment with an original cost of $551. These agreements qualify as a capital lease and, as such, they are included in the equipment account on the accompanying balance sheets. The leases have been fully depreciated in 2013 and there are no future minimum lease payments.

        Operating lease obligations:     The Company leases multiple pharmacy and distribution facilities and office equipment under various operating lease agreements expiring through December 2017. Total rental expense under operating leases for the years ended December 31, 2013, 2012 and 2011 was $1,109, $460 and $415, respectively, exclusive of property taxes, insurance and other occupancy costs generally payable by the Company.

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DIPLOMAT PHARMACY, INC.

Notes to Consolidated Financial Statements (Continued)

(Dollars in Thousands, Except Per Share Amounts)

10. COMMITMENTS AND CONTINGENCIES (Continued)

        Future minimum payments under non-cancelable operating leases with initial or remaining terms of more than one year are as follows:

2014

  $ 1,241  

2015

    968  

2016

    304  

2017

    21  
       

  $ 2,534  
       
       

11. CAPITAL STOCK

        The Company filed Amended Articles of Incorporation effective July 5, 2007 which establish classes of common stock. The amendment authorizes 5,000 shares of Class A Voting Common Stock and 95,000 shares of Class B Non-Voting Common Stock. Each share of existing common stock issued and outstanding as of July 5, 2007 was converted into 0.05 shares of Class A Voting Common Stock and 0.95 shares of Class B Non-Voting Common Stock. Shareholder agreements representing 1,300 shares of common stock contain provisions that, upon the death of the shareholder, all shares immediately will be deemed to have been offered for sale to the Company and to each of the other shareholders at an agreed-upon price and terms, as set forth in the shareholder agreements.

        Each share of common stock has equal and identical rights, preferences and limitations, except for voting rights. The holders of shares of the Class A Voting Common Stock are entitled to one vote for each share of common stock held on any matter submitted to a vote of the shareholders. The holders of shares of the Class B Non-Voting Common Stock have no voting rights, except as otherwise required by law. See also subsequent events in Note 14 for further disclosure on common stock transactions.

        In January 2012, the Company entered into a settlement agreement with a former shareholder whereby 32.50 shares of Class A Common Stock and 617.50 shares of Class B Common Stock formerly owned by this shareholder were purchased by the Company for consideration of $20,978 of which $2,065 was paid in cash, forgiveness of note of $196 and the remaining $18,717 was payable in full, as per the terms of an executed promissory note, maturing January 2017 (Note 9).

        In September 2012, the Company entered into a settlement agreement with a current shareholder whereby 32.50 shares of Class A Common Stock and 242.50 shares of Class B Common Stock formerly owned by this shareholder were purchased by the Company for consideration of $8,415, of which $786 was paid in cash and the remaining $7,629 was payable in full, as per the terms of an executed promissory note, maturing July 2017 (Note 9).

        Additionally in 2012, the Company settled a matter with a prior shareholder in which $580 of expense was recognized of which $100 was paid in cash and the remaining $480 was payable in full, as per the terms of an executed promissory note, maturing June 2015 (Note 9).

12. SHARE-BASED COMPENSATION

        The Company's 2007 Stock Option Plan, as approved by the Company's Board of Directors and amended March 1, 2009, authorizes the granting of stock options to its key employees at no less than

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DIPLOMAT PHARMACY, INC.

Notes to Consolidated Financial Statements (Continued)

(Dollars in Thousands, Except Per Share Amounts)

12. SHARE-BASED COMPENSATION (Continued)

the market price on the date the option is granted. Options generally become exercisable in installments of 25% per year, beginning on the first anniversary of the grant date and each of the three anniversaries thereafter, and have a maximum term of ten years. All share-based compensation awards for employees have been granted under the 2007 Stock Option Plan.

        The Company uses the Black-Scholes-Merton option pricing model to determine the grant date valuation of options and has applied the assumptions set forth in the following table:

 
  Year Ended December 31,
 
  2013   2012   2011

Exercise price of options (in thousands)

  $50.0 - $137.4   $36.4 - $50.8   $32.2

Expected volatility

  23.3% - 25.3%   22.5% - 25.3%   21.6 - 23.0%

Expected dividend yield

  0%   0%   0%

Risk-free rate over the estimated expected life

  0.65 - 1.27%   0.55 - 0.66%   0.94 - 1.53%

Expected life (in years)

  4.0   4.0   4.0

        Total compensation cost expensed during the years ended December 31, 2013, 2012 and 2011 related to employee stock options was $886, $915 and $1,410, respectively. During 2012, the Company redeemed stock options to buy 0.0104 shares of Class A common stock and 0.1982 shares of Class B common stock from two former employees for cash consideration totaling $1,043 and a note payable in the amount of $1,423, resulting in a reduction of additional paid-in capital of $513 and an increase in accumulated deficit of $1,953.

        At December 31, 2013, the total compensation cost related to non-vested options not yet recognized was $2,340, which will be recognized over a weighted average period of 2.1 years, assuming the employees complete their service period for vesting of the options.

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DIPLOMAT PHARMACY, INC.

Notes to Consolidated Financial Statements (Continued)

(Dollars in Thousands, Except Per Share Amounts)

12. SHARE-BASED COMPENSATION (Continued)

        A summary of the Company's stock option activity on an annual basis is as follows:

 
  Number
of Shares
  Weighted
Average
Exercise
Price
  Weighted
Average
Grant
Date Fair
Value
  Weighted
Average
Remaining
Contractual
Term
  Aggregate
Intrinsic
Value
 
 
   
  (In Thousands)
  (Years)
   
 

Outstanding at January 1, 2011

    702.2   $ 21.4   $ 8.9     8.0   $ 292  

Granted

    78.0     32.2     1.8              

Forfeited

    (208.6 )   26.6     6.5              
                           

Outstanding at December 31, 2011

    571.6     21.0     8.8     7.2   $ 1,412  

Granted

    248.2     37.7     2.5              

Expired/cancelled

    (166.2 )   18.5     8.1              
                           

Outstanding at December 31, 2012

    653.6     27.9     6.6     7.5   $ 14,976  

Granted

    129.6     79.8     11.0              
                           

Outstanding at December 31, 2013

    783.2   $ 36.5   $ 7.3     7.0   $ 69,732  
                       
                       

Exercisable at December 31, 2013

    411.7   $ 22.9   $ 7.4     5.6   $ 37,851  
                       
                       

13. INCOME PER COMMON SHARE

        The following is a reconciliation of the numerators and the denominators of the basic and diluted income per common share:

 
  Year Ended December 31,  
 
  2013   2012   2011  

Net income

  $ 8,228   $ 3,927   $ 9,151  
               
               

Weighted average common shares outstanding, basic

    4,275     4,471     5,200  

Incremental shares on assumed exercise of stock options

    89     131     111  
               

Weighted average common shares outstanding, diluted

    4,364     4,602     5,311  
               
               

Net income per common share:

                   

Basic

  $ 1,924.70   $ 878.35   $ 1,759.77  

Diluted

  $ 1,885.45   $ 853.50   $ 1,723.13  

        Options to purchase 44, 441 and 415 common shares were not included in the computation of diluted earnings per share because the exercise prices were greater than the average market price of the Company's common shares during the years ended December 31, 2013, 2012 and 2011, respectively.

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DIPLOMAT PHARMACY, INC.

Notes to Consolidated Financial Statements (Continued)

(Dollars in Thousands, Except Per Share Amounts)

14. SUBSEQUENT EVENTS

        The Company has evaluated subsequent events through June 27, 2014, the date the consolidated financial statements were originally available for issuance and re-evaluated subsequent events through July 2, 2014.

Income Tax Status Change

        On January 23, 2014, the Company changed its income tax status from an S corporation to a C corporation. Accordingly, on that date, the Company recorded a net deferred income tax liability of $2,492 (unaudited) and reclassified all of its accumulated deficit, inclusive of the net deferred tax liability adjustment, into additional paid-in capital. The pro forma data presented on the consolidated statements of operations give effect to the Company's election to be a C corporation as if that election was made effective January 1, 2011.

        As a C corporation, the Company will account for income taxes under the asset and liability method to account for income taxes. Deferred tax assets or liabilities will be determined based on the difference between the financial statement and tax bases of assets and liabilities and on tax credit carryforwards as measured by the enacted tax rates which will be in effect when these items are expected to impact the tax returns. The Company would provide a valuation allowance against net deferred tax assets unless, based upon the available evidence, it is more likely than not that the deferred tax assets will be realized.

        The Company will prepare and file tax returns based on interpretations of tax laws and regulations. In the normal course of business the Company's tax returns will be subject to examination by various taxing authorities. Such examinations may result in future tax and interest assessments by these taxing authorities. In determining the Company's tax provision for financial reporting purposes, the Company will establish a reserve for uncertain income tax positions unless it is determined to be "more likely than not" that such tax positions would be sustained upon examination, based on their technical merits. That is, for financial reporting purpose, the Company will only recognize tax benefits taken on the tax return if it believes it is "more likely than not" that such tax position would be sustained. There will be considerable judgment involved in determining whether it is "more likely than not" that such tax positions would be sustained.

        The Company will adjust its tax reserve estimates periodically because of ongoing examinations by, and settlements with, varying taxing authorities, as well as changes in tax laws, regulations and interpretations. The consolidated tax provision of any given period will include adjustments to prior year income tax accruals and related estimated interest charges that are considered appropriate. The Company's policy will be to recognize, when applicable, interest and penalties on uncertain income tax positions as part of income tax expense.

Equity Matters

        In January and March 2014, the Company authorized an aggregate of 732 shares of a new class of common stock, Class C Voting, of which none are outstanding as of May 15, 2014. The Class C Voting Common Stock is identical in all respects to the Class A and Class B Common Stock other than for voting rights. Pursuant to the amended and restated articles of incorporation effective March 31, 2014,

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DIPLOMAT PHARMACY, INC.

Notes to Consolidated Financial Statements (Continued)

(Dollars in Thousands, Except Per Share Amounts)

14. SUBSEQUENT EVENTS (Continued)

the Class A Common Stock is entitled to 20 votes per share, the Class B Common Stock is nonvoting and the Class C Common Stock is entitled to one vote per share.

        In January 2014, the Company also entered into a Series A Preferred Stock Purchase Agreement with certain funds of T. Rowe Price under which the Company issued to certain funds of T. Rowe Price 351.32097 shares of Series A Preferred Stock at a purchase price of $142 per share. The Company will use $20,000 of this $50,000 investment for general corporate purposes inclusive of fees associated with this transaction, and the remaining $30,000 was used to redeem common stock ($26,900) and common stock options ($3,100).

        In April 2014, the Company entered into a Series A Preferred Stock Purchase Agreement with certain funds of Janus Capital Group ("Janus") under which the Company issued to certain funds of Janus 379.4267 shares of Series A Preferred Stock at a purchase price of $142 per share. The Company will use $25,200 of the $54,000 investment for general corporate purposes inclusive of fees associated with this transaction, and the remaining $28,800 was used to redeem common stock ($26,500) and common stock options ($2,300).

        The Series A Preferred Stock is entitled to vote as if converted into Class C Common Stock on the voting date. The Series A Preferred Stock has no coupon rate, is convertible into Class C Common Stock at any time at the option of the holder, has optional redemption rights and has liquidation preferences. The conversion rate is on a one-for-one basis, subject to adjustment for stock splits and subdivisions, stock combinations, certain future issuances of common stock or common stock equivalents at effective prices lower than the then-applicable conversion rate, and other circumstances as described in the amended articles of incorporation. The Series A Preferred Stock automatically converts into Class C Common Stock upon either (i) a qualified common stock public offering (as defined), or (ii) an affirmative vote of the majority of the Series A Preferred Stock.

        Pursuant to an affirmative vote of the majority of the Series A Preferred Stock, the holders thereof can demand redemption of all outstanding shares of Class A Preferred Stock anytime on or after the earlier of (i) January 23, 2021, (ii) such time as the Company's aggregate market price (as defined) is equal or greater than $5,000,000, and (iii) such time as certain changes are made to the Company's board of directors, certain executive officers and/or certain controlling shareholders. The redemption price is payable in cash and will be the greater of the original issuance price plus all declared but unpaid dividends and fair market value (as defined). Upon a liquidation event (as defined), the Series A Preferred Stockholders are entitled to receive the greater of (i) the sum of the original issuance price plus a 15% return compounded annually, and (ii) the amount they would receive upon the liquidation had the Series A Preferred Stock converted into Class C Common Stock just prior to the liquidation date.

Other Matters

        In February 2014, the interest rate swap disclosed in Note 3 was terminated and the related liability of $9 at that time was paid in full.

        On May 30, 2014, the Company satisfied its mortgage loan obligation owed to JPMorgan Chase Bank. The total payment of $2,609 was comprised of $2,604 for the face amount of the note and $5 for accrued interest.

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DIPLOMAT PHARMACY, INC.

Notes to Consolidated Financial Statements (Continued)

(Dollars in Thousands, Except Per Share Amounts)

14. SUBSEQUENT EVENTS (Continued)

        On May 30, 2014, the Company entered into a Stock Option Redemption Agreement with a former executive whereby the Company redeemed options to acquire 0.104 shares of common stock, comprised of 0.0052 shares of Class A Voting Common Stock and 0.0988 shares of Class B Non-Voting Common Stock, for the cash purchase price of $4,000.

        On June 26, 2014, the Company's line of credit with GE was amended to increase the aggregate revolving loan commitments under the line of credit from $85,000 to $120,000.

        On June 27, 2014, the Company acquired all of the outstanding stock of MedPro Rx, Inc. ("MedPro") for $52,000 in cash, 84.31703 shares of the Company's Class B Nonvoting Common Stock, valued at approximately $12,000, and up to $11,500 of contingent consideration that is based on the achievement of certain revenue and gross profit targets. MedPro is a specialty pharmacy focused on specialty infusion therapies including hemophilia and immune globulin based in Raleigh, North Carolina. The Company acquired MedPro to expand its existing specialty infusion business and to increase its presence in the mid-Atlantic Southern regions of the country. The results of operations for MedPro will be included in the Company's consolidated financial statements from the acquisition date.

        The Company is in the process of preparing for an initial public offering ("IPO"). The Company's expectation is that the IPO will occur during the latter half of 2014, though no assurances can be made. Upon completion of the IPO, all outstanding shares of preferred stock, Class A Voting Stock and Class B Non-Voting Stock will automatically convert into shares of common stock. Additionally, prior to our IPO, the Company will effect a stock split in the form of a stock dividend. Accordingly, all share and per share amounts presented in these consolidated financial statements and notes thereto, will be adjusted, where applicable to reflect this stock dividend and adjustment of the preferred stock conversion ratio.

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DIPLOMAT PHARMACY, INC.

Condensed Consolidated Balance Sheets (Unaudited)

 
  March 31, 2014
Pro Forma
Shareholders'
Deficit
(Note 15)
  March 31,
2014
  December 31,
2013
 
 
  (Dollars in Thousands, Except Par Values)
 

ASSETS

                   

Current assets:

                   

Cash and cash equivalents

        $   $ 9,109  

Accounts receivable, net

          122,332     104,047  

Other receivables

          5,186     6,082  

Inventories

          50,313     56,454  

Notes receivable from related parties

          2,650     2,165  

Deferred income taxes

          310      

Prepaid expenses and other current assets

          2,373     1,924  
                 

Total current assets

          183,164     179,781  

Property and equipment, net

          12,024     12,378  

Capitalized software for internal use, net

          7,172     6,564  

Goodwill

          1,537     1,537  

Definite-lived intangible assets, net

          6,874     7,100  

Investment in non-consolidated entity

          3,176     3,577  

Other noncurrent assets

          857     840  
                 

        $ 214,804   $ 211,777  
                 
                 

LIABILITIES AND SHAREHOLDERS' DEFICIT

                   

Current liabilities:

                   

Accounts payable

        $ 146,620   $ 142,353  

Line of credit

          38,747     62,622  

Short-term debt, including current portion of long-term debt

          6,533     6,693  

Accrued compensation

          2,129     2,703  

Income taxes payable

          1,324      

Other accrued expenses

          1,920     2,296  
                 

Total current liabilities

          197,273     216,667  

Long-term debt, less current portion

          17,902     18,849  

Deferred income taxes

          2,802      

Other noncurrent liabilities

          660     673  

Commitments and contingencies

                   

Shareholders' deficit:

                   

Preferred stock ($0.001 par value; 732 authorized shares at March 31, 2014; 351.32097 issued and outstanding shares at March 31, 2014)

  $     48,627      

Common stock:

                   

Class A voting shares ($1.00 par value; 5,000 authorized shares; 195 issued and outstanding shares at both March 31, 2014 and December 31, 2013)           

             

Class B non-voting shares ($1.00 par value; 95,000 authorized shares; 3,891 issued and outstanding shares at March 31, 2014 and 4,080 issued and outstanding shares at December 31, 2013)

        4     4  

Class C voting shares ($1.00 par value; 732 authorized shares; none issued or outstanding)

             

Additional paid-in capital

    (6,101 )   (54,732 )   4,446  

Accumulated deficit

    2,268     2,268     (28,862 )
               

Total shareholders' deficit

  $ (3,833 )   (3,833 )   (24,412 )
               

        $ 214,804   $ 211,777  
                 
                 

   

See accompanying notes to condensed consolidated financial statements.

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DIPLOMAT PHARMACY, INC.

Condensed Consolidated Statements of Operations (Unaudited)

 
  Three Months Ended
March 31,
 
 
  2014   2013  
 
  (Dollars in Thousands,
Except Per Share Amounts)

 

Net sales

  $ 465,677   $ 343,670  

Cost of goods sold

    (436,168 )   (323,294 )
           

Gross profit

    29,509     20,376  

Selling, general and administrative expenses

   
23,539
   
(17,920

)
           

Income from operations

    5,970     2,456  

Interest expense

   
(530

)
 
(503

)

Equity loss of non-consolidated entity

    (401 )   (102 )

Other income

    468     64  
           

Income before income taxes

    5,507     1,915  

Income tax expense

    (3,817 )    
           

Net income / net comprehensive income

    1,690     1,915  

Net income allocable to preferred shareholders

   
102
   
 
           

Net income allocable to common shareholders

  $ 1,588   $ 1,915  
           
           

Net income per common share:

             

Basic

  $ 384.38   $ 448.04  
           
           

Diluted

  $ 358.17   $ 446.17  
           
           

Weighted average shares outstanding:

             

Basic

    4,132     4,275  

Diluted

    4,435     4,293  

Pro Forma Data (Notes 1 and 15):

   
 
   
 
 

Income before income taxes

  $ 5,507   $ 1,915  

Income tax expense

    (2,030 )   (679 )
           

Net income / net comprehensive income

    3,477     1,236  

Net income allocable to preferred shareholders

   
   
 
           

Net income allocable to common shareholders

  $ 3,477   $ 1,236  
           
           

Pro forma net income per common share:

             

Basic

  $ 841.40   $ 289.21  
           
           

Diluted

  $ 784.02   $ 288.00  
           
           

   

See accompanying notes to condensed consolidated financial statements.

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DIPLOMAT PHARMACY, INC.

Condensed Consolidated Statements of Cash Flows (Unaudited)

 
  Three Months Ended
March 31,
 
 
  2014   2013  
 
  (Dollars in Thousands)
 

Cash Flows From Operating Activities

             

Net income

  $ 1,690   $ 1,915  

Adjustments to reconcile net income to net cash provided from (used by) operating activities:

             

Depreciation and amortization

    1,312     913  

Share-based compensation expense

    262     239  

Equity loss of non-consolidated entity

    401     102  

Net (recovery of) provision for doubtful accounts

    (95 )   205  

Amortization of debt issuance costs

    84     48  

Deferred income tax expense

    2,492      

Loss (gain) on disposal of property and equipment

    3     (3 )

Changes in operating assets and liabilities:

             

Accounts receivable

    (18,190 )   (18,443 )

Inventories

    6,141     6,260  

Accounts payable

    4,267     12,938  

Other assets and liabilities

    708     4,615  
           

Net cash (used by) provided from operating activities

    (925 )   8,789  

Cash Flows From Investing Activities

   
 
   
 
 

Expenditures for capitalized software for internal use

    (1,350 )   (758 )

Expenditures for property and equipment

        (148 )

Capital investment in non-consolidated entity

        (750 )

Net issuance of related parties' notes receivable

    (485 )   (54 )

Net proceeds from sales of equipment

    6      
           

Net cash used by investing activities

    (1,829 )   (1,710 )

Cash Flows From Financing Activities

   
 
   
 
 

Net (payments on) proceeds from line of credit

    (23,875 )   109  

Payments on long-term debt

    (1,107 )   (7,188 )

Proceeds from sale of preferred stock, net of transaction costs

    48,627      

Payments associated with stock and stock option redemptions

    (30,000 )    
           

Net cash used by financing activities

    (6,355 )   (7,079 )
           

Decrease in cash and cash equivalents

   
(9,109

)
 
 

Cash and cash equivalents at beginning of period

   
9,109
   
 
           

Cash and cash equivalents at end of period

 
$

 
$

 
           
           

Supplemental Cash Flow Information

   
 
   
 
 

Cash paid for interest

  $ 455   $ 446  

   

See accompanying notes to condensed consolidated financial statements.

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DIPLOMAT PHARMACY, INC.

Condensed Consolidated Statement of Shareholders' Deficit (Unaudited)

 
   
  Common Stock    
   
   
 
 
  Preferred
Stock
  Class A
Voting
  Class B
Non-Voting
  Additional
Paid-in
Capital
  Accumulated
Deficit
  Total  
 
  (Dollars in Thousands)
 

Balance at January 1, 2014

  $   $   $ 4   $ 4,446   $ (28,862 ) $ (24,412 )

Net income/net comprehensive income

                    1,690     1,690  

Reclassification of S corporation accumulated deficit

                (29,440 )   29,440      

Issuance of preferred stock, net of $1,373 in transaction costs

    48,627                     48,627  

Stock redemptions

                (26,900 )       (26,900 )

Redemption of certain stock options

                (3,100 )       (3,100 )

Share-based compensation expense

                262         262  
                           

Balance at March 31, 2014

  $ 48,627   $   $ 4   $ (54,732 ) $ 2,268   $ (3,833 )
                           
                           

   

See accompanying notes to condensed consolidated financial statements.

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DIPLOMAT PHARMACY, INC.

Notes to Condensed Consolidated Financial Statements (Unaudited)

(Dollars in Thousands, Except Per Share Amounts)

1. BASIS OF PRESENTATION AND SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES

        Business Activity:     Diplomat Pharmacy, Inc. d/b/a Diplomat Specialty Pharmacy (the "Company") is a specialty pharmacy sales business and includes all of its wholly owned subsidiaries including American Homecare Federation, Inc. ("AHF") that was acquired in December 2013. The Company stocks, dispenses and distributes prescriptions for various biotech and specialty pharmaceuticals and operates as one reportable segment. The Company has its corporate headquarters and main distribution facility in Flint, Michigan and maintains seven other pharmacy locations in Michigan, Illinois, Florida, California, Connecticut and Massachusetts.

        Interim Financial Statements:     The unaudited condensed consolidated financial statements of the Company have been prepared in accordance with the rules and regulations of the Securities and Exchange Commission ("SEC"). Certain information and footnote disclosures normally included in financial statements prepared in accordance with accounting principles generally accepted in the United States of America ("U.S. GAAP") have been condensed or omitted pursuant to such rules and regulations. These statements include all adjustments (consisting of normal recurring adjustments) that management believes are necessary for a fair presentation of the results of operations, financial position and cash flows of the Company. The Company's management believes that the disclosures are adequate to make the information presented not misleading when read in conjunction with the consolidated financial statements and the notes thereto included in the Company's annual financial statements for the year ended December 31, 2013. Operating results for the three months ended March 31, 2014 are not necessarily indicative of the results that may be expected for the year ending December 31, 2014.

        Principles of Consolidation:     The consolidated financial statements include the accounts of the Diplomat Pharmacy, Inc. and all of its wholly-owned subsidiaries. The Company also owns a 25% interest in a non-consolidated entity which is accounted for under the equity method of accounting. All intercompany transactions and accounts have been eliminated in consolidation.

        Use of Estimates:     The preparation of financial statements in conformity with U.S. GAAP requires management to make estimates and assumptions that affect the amounts reported therein. Due to the inherent uncertainty involved in making estimates, actual results reported in future periods may be based upon amounts that differ from these estimates.

        Concentrations of Risk:     Financial instruments which potentially subject the Company to concentrations of credit risk consist principally of cash on deposit with banks or other financial institutions and trade accounts receivable.

        A federal program provides non-interest bearing cash balances insurance coverage for up to $250 per depositor at each financial institution. The Company's cash balances may exceed federally insured limits.

        Concentration of credit risk with respect to trade receivables is limited by the large number of patients comprising the Company's customer base and their dispersion across multiple payors and multiple geographic areas. As of March 31, 2014 and December 31, 2013, the Company had no significant trade receivable concentrations of credit risk.

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DIPLOMAT PHARMACY, INC.

Notes to Condensed Consolidated Financial Statements (Unaudited) (Continued)

(Dollars in Thousands, Except Per Share Amounts)

1. BASIS OF PRESENTATION AND SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES (Continued)

        Cash Equivalents:     The Company considers all highly liquid investments with maturities of 90 days or less from the date of purchase to be cash equivalents.

        Accounts Receivable and Allowance for Doubtful Accounts:     Accounts receivable primarily include amounts from third-party pharmacy benefit managers and insurance providers and are based on contracted prices. Trade receivables require no collateral and are on an unsecured basis. Accounts receivable terms vary by payor, but generally are due within 30 days after the sale of the product or performance of the service.

        The Company maintains an allowance for doubtful accounts that reduces receivables to amounts that are expected to be collected. In estimating the allowance, management considers factors such as current overall economic conditions, historical and anticipated customer performance, historical experience with write-offs, and the level of past due accounts. Changes in these conditions may result in additional allowances. Once an amount is deemed to be uncollectible, the amount is written off against the allowance. The allowance for doubtful accounts as of March 31, 2014 and December 31, 2013 was $860 and $956, respectively.

        Inventories:     Inventories are stated at the lower of cost or market and consist primarily of prescription medications, over-the-counter ("OTC") medications and medical supplies. Cost is determined using the first-in, first-out method and are adjusted to actual cost quarterly based on a physical count. Inventory is returnable and fully refundable before six months of expiration, and any remaining expired medication is relieved from inventory quarterly. The Company records an estimated reserve for service fees and other deductions from the refund expected for returns of expired medication.

        Property and Equipment:     Property and equipment are valued at cost less accumulated depreciation. Expenditures for maintenance and repairs are expensed as incurred, while expenditures that increase asset lives are capitalized. Depreciation is computed generally on a straight-line basis over the estimated useful lives of the assets. For income tax purposes, accelerated methods of depreciation are generally used.

        When items of property or equipment are sold or retired, the related cost and accumulated depreciation are removed from the accounts, and any gain or loss is included in earnings.

        Construction in progress is stated at cost, which includes the cost of construction and other direct costs attributable to the construction. No provision for depreciation is made on construction in progress until such time as the relevant assets are completed and put into use.

        Assets held for sale are carried at the lower of their historical depreciated costs or estimated fair values less costs to sell.

        Capitalized Software for Internal Use:     The Company has also developed software for internal use. The Company expenses the costs incurred during the preliminary project stage, and capitalizes the direct development costs (including the associated payroll and related costs for employees working on development, and outside contractor costs) during the application development stage. The Company monitors development on an ongoing basis and capitalizes the costs of any major improvements or new

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DIPLOMAT PHARMACY, INC.

Notes to Condensed Consolidated Financial Statements (Unaudited) (Continued)

(Dollars in Thousands, Except Per Share Amounts)

1. BASIS OF PRESENTATION AND SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES (Continued)

functionality. Amortization is computed generally on a straight-line basis over the estimated useful lives of the assets. For income tax purposes, accelerated methods of amortization are generally used.

        Goodwill:     Goodwill represents excess purchase price paid for a business over the estimated fair value of its acquired net assets related to the Company's acquisition of AHF on December 16, 2013. See Note 2 for further details.

        Goodwill will be reviewed for impairment annually, or more frequently if impairment indicators exist. Accounting guidance provides the option of performing a qualitative assessment that may allow companies to forego the annual two-step quantitative impairment test for goodwill if it is determined that the fair value of the applicable reporting unit is more likely than not greater than its carrying value. This qualitative assessment evaluates various events and circumstances, such as macro-economic conditions, industry and market conditions, cost factors, relevant events and financial trends, that may impact a reporting unit's fair value. If the two-step impairment test for goodwill is deemed necessary, this quantitative impairment analysis compares the fair values of the Company's reporting units to their related carrying values. If a reporting unit carrying value exceeds its fair value, the Company must then calculate the reporting unit's implied fair value of goodwill and impairment charges are recorded for any excess of the goodwill carrying value over the implied fair value of goodwill. The reporting units' fair values are based upon consideration of various valuation methodologies, including projected future cash flows discounted at rates commensurate with the risks involved, guideline transaction multiples, and multiples of current and future earnings.

        Definite-Lived Intangible Assets:     Intangible assets consist of the assets related to the acquisition of AHF, and are amortized over their estimated useful lives using the accelerated method for patient relationships, and the straight line method for the remaining intangible assets.

        Long-Lived Asset Impairment Testing:     Long-lived assets, which include property, equipment, capitalized software, investment in non-consolidated entity and definite-lived intangible assets, are periodically reviewed for impairment indicators. In assessing long-lived assets for impairment, assets are grouped with other assets and liabilities at the lowest level for which identifiable cash flows are largely independent of the cash flows of other assets and liabilities. If impairment indicators exist, the Company performs an undiscounted cash flow test to determine recoverability. If this recoverability test identifies a possible impairment, management will perform a fair value analysis. Fair values of long-lived assets are determined through various techniques, such as applying probability weighted, expected present value calculations to the estimated future cash flows using assumptions a market participant would utilize or through the use of valuation specialists. The Company compares the fair value of the long-lived asset to it net carrying value and an impairment charge is recorded for the amount by which the net carrying value of the long-lived asset exceeds its fair value.

        Debt Issuance Costs:     Debt issuance costs related to the Company's revolving line of credit are capitalized within "Other noncurrent assets" and amortized as interest expense on a straight-line basis over the term of the agreement for which the fees were paid.

        Share-Based Compensation:     The Company expenses the grant date fair values of its employee stock options over their respective vesting periods on a straight-line basis. Estimating grant date fair

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DIPLOMAT PHARMACY, INC.

Notes to Condensed Consolidated Financial Statements (Unaudited) (Continued)

(Dollars in Thousands, Except Per Share Amounts)

1. BASIS OF PRESENTATION AND SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES (Continued)

values for employee stock options requires management to make assumptions regarding the current value of the Company's common shares, expected volatility of value of those underlying shares, the risk-free rate over the expected life of the stock options, and the date on which share-based payments will be settled. The Company estimates its common share fair value using the income approach and market approach using the market comparable method. Expected volatility is based on an implied volatility for a group of healthcare companies as of the measurement date. Risk-free rate is determined based upon U.S. Treasury rates over the estimated expected option lives. Expected dividend yield is zero as the Company does not anticipate that any dividends will be declared during the expected term of the options. Expected option life is less than the option term. If actual results differ significantly from these estimates and assumptions, particularly in relation to management's estimation of volatility which requires the most judgment due to the Company being a private entity, share-based compensation expense, primarily with respect to future share-based awards, could be materially impacted.

        Revenue Recognition:     The Company recognizes revenue from prescription drug sales for home delivery at the time the drugs are shipped. Revenues from dispensing specialty prescriptions that are filled at an open door or retail pharmacy location are recorded at prescription adjudication, which approximates fill date. Sales taxes are presented on a net basis (excluded from revenues and costs). Revenues generated from prescription drugs were $462,798 and $341,301 for the three months ended March 31, 2014 and 2013, respectively.

        Shipping and handling costs are not billed to patients; therefore, there are no shipping and handling revenues. Conversely, the Company recognizes shipping and handling costs as incurred by the Company as a component of "Selling, general and administrative expenses" and were $2,803 and $2,303 for the three months ended March 31, 2014 and 2013, respectively.

        The Company recognizes revenue from service, data and consulting services when the services have been performed and the earnings process is complete. Revenues generated from service, data and consulting services were $2,879 and $2,369 for the three months ended March 31, 2014 and 2013, respectively.

        The Company derived its revenue from the following therapeutic classes:

 
  For the quarter ended March 31,  
 
  2014   2013  

Oncology

  $ 221,274   $ 161,587  

Immunology(1)

    101,393     88,002  

Multiple Sclerosis

    50,269     37,288  

Other (none greater than 10%)

    92,741     56,793  
           

Total Revenue

  $ 465,677   $ 343,670  
           
           

(1)
Includes drugs dispensed to treat arthritis, crohn's disease and psoriasis.

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DIPLOMAT PHARMACY, INC.

Notes to Condensed Consolidated Financial Statements (Unaudited) (Continued)

(Dollars in Thousands, Except Per Share Amounts)

1. BASIS OF PRESENTATION AND SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES (Continued)

        Advertising and Marketing Costs:     Advertising and marketing costs are expensed as incurred and were $222 and $172 for the three months ended March 31, 2014 and 2013, respectively.

        Income Taxes:     Prior to January 23, 2014, the Company had elected to be taxed under the provisions of Subchapter S of the Internal Revenue Code. Under these provisions, the Company did not pay federal corporate income taxes on its taxable income. Instead, the stockholders were liable for individual federal income taxes on their respective shares of the Company's taxable income. Distributions were made periodically to the Company's shareholders to the extent needed to cover their income tax liability based on the Company's taxable income.

        On January 23, 2014, the Company changed its income tax status from an S corporation to a C corporation. Accordingly, on that date, the Company recorded a net deferred income tax liability of $2,492 and reclassified all of its accumulated deficit, inclusive of the net deferred tax liability adjustment, into additional paid-in capital. The pro forma data presented on the condensed consolidated statements of operations give effect to the Company's election to be a C corporation as if that election was made effective January 1, 2013, in addition to also giving effect to the conversion of preferred stock as described in Note 15.

        As a C corporation, the Company accounts for income taxes under the asset and liability approach. Deferred tax assets or liabilities are determined based on the difference between the financial statement and tax bases of assets and liabilities and on tax credit carryforwards as measured by the enacted tax rates which will be in effect when these items impact the tax returns. The Company provides a valuation allowance against net deferred tax assets unless, based upon the available evidence, it is more likely than not that the deferred tax assets will be realized.

        The Company prepares and file tax returns based on interpretations of tax laws and regulations. In the normal course of business the Company's tax returns are subject to examination by various taxing authorities. Such examinations may result in future tax and interest assessments by these taxing authorities. In determining the Company's tax provision for financial reporting purposes, the Company establishes a reserve for uncertain income tax positions unless it is determined to be "more likely than not" that such tax positions would be sustained upon examination, based on their technical merits. That is, for financial reporting purposes, the Company only recognizes tax benefits taken on the tax return if it believes it is "more likely than not" that such tax position would be sustained. There is considerable judgment involved in determining whether it is "more likely than not" that such tax positions would be sustained. As of March 31, 2014, the Company has no recorded uncertain tax positions.

        The Company adjusts its tax reserve estimates periodically because of ongoing examinations by, and settlements with, varying taxing authorities, as well as changes in tax laws, regulations and interpretations. The consolidated tax provision of any given year includes adjustments to prior year income tax accruals and related estimated interest charges that are considered appropriate. The Company's policy is to recognize, when applicable, interest and penalties on uncertain income tax positions as part of income tax expense.

        Earnings per Share:     The Company computes net earnings per common share using the two-class method as its preferred shares meet the definition of a participating security and thereby share in the

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DIPLOMAT PHARMACY, INC.

Notes to Condensed Consolidated Financial Statements (Unaudited) (Continued)

(Dollars in Thousands, Except Per Share Amounts)

1. BASIS OF PRESENTATION AND SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES (Continued)

net income or loss of the Company on a ratable basis with the common stockholders. The preferred shares portion of net income for the three months ended March 31, 2014 was 6%. Basic net income per common share is computed by dividing net income allocable to common stockholders by the weighted average number of common shares outstanding during the period. Diluted earnings per common share further includes any common shares available to be issued upon exercise of outstanding stock options if such inclusion would be dilutive.

        New Accounting Pronouncements:     In February 2013, the Financial Accounting Standards Board ("FASB") issued Accounting Standards Update ("ASU") No. 2013-4, Liabilities (Topic 405): Obligations Resulting from Joint and Several Liability Arrangements for Which the Total Amount of the Obligation is Fixed at the Reporting Date . This ASU is effective for interim and annual periods beginning after December 15, 2013 and requires the measurement of obligations resulting from joint and several liability arrangements for which the total amount of the obligation is fixed at the reporting date as the sum of: a) the amount the reporting entity agreed to pay on the basis of its arrangement among its co-obligors; and b) any additional amount the reporting entity expects to pay on behalf of its co-obligors. Required disclosures include a description of the joint-and-several arrangement and the total outstanding amount of the obligation for all joint parties. The Company's adoption of this guidance had no impact on its financial position, results of operations, cash flows or disclosures.

        In July 2013, the FASB issued ASU No. 2013-11 , Income Taxes (Topic 740): Presentation of an Unrecognized Tax Benefit When a Net Operating Loss Carryforward, a Similar Tax Loss, or a Tax Credit Carryforward Exists. This ASU is effective for fiscal years and interim periods beginning after December 15, 2013 and changes the presentation of unrecognized tax benefits. The Company's adoption of this guidance had no impact on its financial position, results of operations, cash flows or disclosures.

        In April 2014, the FASB issued ASU No. 2014-8 , Presentation of Financial Statements (Topic 205) and Property, Plant, and Equipment (Topic 360): Reporting Discontinued Operations and Disclosures of Disposals of Components of an Entity. This ASU is effective within annual periods beginning on or after December 15, 2014, and interim periods within annual periods beginning on or after December 15, 2015 with early adoption permitted in certain circumstances. This ASU changes the requirements for reporting discontinued operations. The Company is currently evaluating the impact that the adoption of this guidance will have on its financial position, results of operations, cash flows and/or disclosures.

        In May 2014, the FASB issued ASU No. 2014-9 , Revenue from Contracts with Customers (Topic 606). This ASU is effective for annual periods beginning after December 15, 2016, including interim periods within that reporting period. This ASU changes the requirements for revenue recognition. The Company is currently evaluating the impact that the adoption of this guidance will have on its financial position, results of operations, cash flows and/or disclosures.

2. BUSINESS ACQUISITION

        On December 16, 2013, the Company acquired all of the authorized, issued and outstanding shares of capital stock of AHF for a total acquisition price of approximately $13,449, excluding related acquisition costs of approximately $662 that were expensed. Included in the total acquisition price was

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DIPLOMAT PHARMACY, INC.

Notes to Condensed Consolidated Financial Statements (Unaudited) (Continued)

(Dollars in Thousands, Except Per Share Amounts)

2. BUSINESS ACQUISITION (Continued)

approximately $1,300 related to contingent consideration that is based on achieving certain revenue and gross profit targets. At the closing of the acquisition, approximately $1,353 of the purchase consideration was deposited into an escrow account that will be held for two years after the closing date to satisfy any of the Company's indemnification claims.

        AHF provides clotting medications, ancillaries and supplies to individuals with bleeding disorders, such as hemophilia. AHF has provided uninterrupted state-of-the-art services exclusively to the bleeding disorders community since 1989. The acquisition of AHF will allow the Company to participate in AHF's direct purchase agreements with key hemophilia manufacturers while also providing AHF access to the Company's proprietary care management modules to better manage clinical care of the AHF patients. The Company ascribes significant value to the cost reductions as well as synergies and other benefits that do not meet the recognition criteria of acquired identifiable intangible assets. Accordingly, the value of these components is included within goodwill. The acquisition is treated as a stock purchase for accounting purposes, and the goodwill resulting from this acquisition is not deductible for tax purposes. The results of operations for AHF are included in the Company's consolidated financial statements from the acquisition date.

        A summary of the preliminary allocation of the purchase consideration for AHF is as follows:

Cash and cash equivalents

  $ 1,917  

Accounts receivable, net

    3,512  

Inventories

    1,138  

Prepaid expenses and other current assets

    27  

Property and equipment

    158  

Goodwill

    1,537  

Definite-lived intangible assets

    7,100  

Current liabilities

    (1,940 )
       

  $ 13,449  
       
       

        The following unaudited pro forma results for the three months ended March 31, 2013 assume that the AHF acquisition occurred as of January 1, 2013 and are inclusive of purchase price adjustments. This pro forma information is not necessarily indicative of the results that actually would have been obtained had the acquisition been in effect for the period presented nor that may be obtained in the future.

Net sales

  $ 351,382  
       
       

Net income

  $ 2,312  
       
       

Net income per common share—basic

  $ 540.84  
       
       

Net income per common share—diluted

  $ 538.58  
       
       

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Table of Contents


DIPLOMAT PHARMACY, INC.

Notes to Condensed Consolidated Financial Statements (Unaudited) (Continued)

(Dollars in Thousands, Except Per Share Amounts)

2. BUSINESS ACQUISITION (Continued)

        Definite-lived intangible assets that were acquired and their respective useful lives are as follows:

 
  Useful Life   Amount  

Patient relationships

  10 years   $ 5,100  

Trade names and trademarks

  10 years     1,400  

Non-compete employment agreements

  5 years     600  
           

      $ 7,100  
           
           

        Given the proximity of the acquisition date to year-end, the Company recorded no amortization expense for the year ended December 31, 2013. Amortization of these definite-lived intangible assets began in 2014. Amortization expense was $226 for the three months ended March 31, 2014.

3. FAIR VALUE MEASUREMENTS

        Accounting guidance clarifies that fair value is an exit price, representing the amount that would be received to sell an asset or paid to transfer a liability in an orderly transaction between market participants. As such, fair value is a market-based measurement that should be determined based upon assumptions that market participants would use in pricing an asset or liability. As a basis for considering such assumptions, a three-tier fair value hierarchy was established, which prioritizes the inputs used in measuring fair value as follows:

Level 1:   Observable inputs such as quoted prices in active markets;

Level 2:

 

Inputs, other than quoted prices in active markets, that are observable either directly or indirectly; and

Level 3:

 

Unobservable inputs in which there is little or no market data, which require the reporting entity to develop its own assumptions.

        An asset's or liability's fair value measurement level within the fair value hierarchy is based on the lowest level of any input that is significant to the fair value measurement. Valuation techniques used need to maximize the use of observable inputs and minimize the use of unobservable inputs.

        Assets and liabilities measured at fair value are based on one or more of the following three valuation techniques noted in FASB ASC Topic 820:

    A.
    Market approach: Prices and other relevant information generated by market transactions involving identical or comparable assets or liabilities.

    B.
    Cost approach: Amount that would be required to replace the service capacity of an asset (replacement cost).

    C.
    Income approach: Techniques to convert future amounts to a single present amount based upon market expectations (including present value techniques, option-pricing and excess earnings models).

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Table of Contents


DIPLOMAT PHARMACY, INC.

Notes to Condensed Consolidated Financial Statements (Unaudited) (Continued)

(Dollars in Thousands, Except Per Share Amounts)

3. FAIR VALUE MEASUREMENTS (Continued)

        Assets and liabilities of the Company remeasured and disclosed at fair value on a recurring basis at December 31, 2013 are set forth in the table below:

 
  Asset
(Liability)
  Level 2   Valuation
Technique

December 31, 2013:

               

Interest rate swap contract

  $ (16 ) $ (16 ) C

        The significant inputs, primarily the LIBOR yield curve, used to determine the fair value of the Company's interest rate swap contract were considered Level 2 observable market inputs. The Company monitored the credit and nonperformance risk associated with its counterparty and believed them to be insignificant and not warranting a credit adjustment at December 31, 2013.

        The Company's interest rate swap agreement had an original notional amount of $2,160, equal to a mortgage loan with Bank of America. The purpose of the swap agreement was to fix the interest rate on the monthly balance of the mortgage and reduce exposure to interest rate fluctuations. Under the agreement, the Company paid the counterparty interest at a fixed rate of 2.72% and received interest at a variable rate, adjusted quarterly and based on LIBOR. Because this instrument is not classified as a hedging activity, changes in the fair value of this instrument are included in interest expense on the accompanying condensed consolidated statements of operations. Fair value of the interest rate swap agreement was recorded in "Other accrued expenses" on the December 31, 2013 condensed consolidated balance sheet. This agreement was terminated in February 2014 at a cost of $9.

        The carrying amounts of the Company's financial instruments, consisting primarily of cash and cash equivalents, accounts receivable, accounts payable and other liabilities, approximate their estimated fair values due to the relative short-term nature of the amounts. The carrying amount of debt approximates fair value due to variable interest rates at customary terms and rates the Company could obtain in current financing.

4. INVENTORIES

        Inventories consist of the following:

 
  March 31,
2014
  December 31,
2013
 

Prescription medications, OTC medications and medical supplies, and retail items

  $ 50,028   $ 56,155  

Raw materials

    273     284  

Finished goods

    12     15  
           

  $ 50,313   $ 56,454  
           
           

5. PROPERTY AND EQUIPMENT

        Property and equipment are recorded at cost and are depreciated over the estimated useful lives of the respective assets using the straight-line method. Depreciation expense for the three months ended March 31, 2014 and 2013 was $347 and $346, respectively.

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DIPLOMAT PHARMACY, INC.

Notes to Condensed Consolidated Financial Statements (Unaudited) (Continued)

(Dollars in Thousands, Except Per Share Amounts)

5. PROPERTY AND EQUIPMENT (Continued)

        Property and equipment consist of the following:

 
  Useful Life   March 31,
2014
  December 31,
2013
 

Land

    $ 332   $ 332  

Buildings

  40 years     7,419     7,419  

Building and leasehold improvements

  5 - 15 years*     889     889  

Equipment and fixtures

  5 - 10 years     6,465     6,465  

Computer equipment

  3 - 5 years     2,096     2,096  

Vehicles

  5 years     59     82  

Construction in progress

      27     25  
               

        17,287     17,308  

Accumulated depreciation

        (5,263 )   (4,930 )
               

      $ 12,024   $ 12,378  
               
               

*
Unless applicable lease term is shorter

        Included in "Prepaid expenses and other current assets" on the condensed consolidated balance sheets are certain properties held for sale with a carrying value of $300 at both March 31, 2014 and December 31, 2013.

6. CAPITALIZED SOFTWARE FOR INTERNAL USE

        Capitalized software for internal use is recorded at cost and is amortized over the estimated useful lives of the respective assets using the straight-line method. Amortization expense for the three months ended March 31, 2014 and 2013 was $740 and $567, respectively.

        Balances of capitalized software for internal use are as follows:

 
  Useful Life   March 31,
2014
  December 31,
2013
 

Capitalized software for internal use

  3 years   $ 13,687   $ 13,638  

Construction in progress

        2,240     941  
               

        15,927     14,579  

Accumulated amortization

        (8,755 )   (8,015 )
               

      $ 7,172   $ 6,564  
               
               

7. INVESTMENT IN NON-CONSOLIDATED ENTITY

        In October 2011, the Company purchased a 25% minority interest in WorkSmartMD, L.L.C., also known as Ageology, for $5,000 of cash consideration, which was paid in installments during 2011, 2012 and 2013. No further payments or other commitments are required as of March 31, 2014.

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Table of Contents


DIPLOMAT PHARMACY, INC.

Notes to Condensed Consolidated Financial Statements (Unaudited) (Continued)

(Dollars in Thousands, Except Per Share Amounts)

7. INVESTMENT IN NON-CONSOLIDATED ENTITY (Continued)

        Ageology is an anti-aging physician network dedicated to nutrition, fitness and hormones. The Company accounts for Ageology under the equity method, as it has significant influence over its operations. The Company's portion of Ageology's net losses for the three months ended March 31, 2014 and 2013 were $401 and $102, respectively. The Company's equity investment balance in Ageology at March 31, 2014 and December 31, 2013 was $3,176 and $3,577, respectively.

        The Company entered into a $500 8% per annum interest-bearing secured promissory notes receivable from Ageology, due on demand. During November and December 2013, the Company entered into two $1,000 6% per annum interest-bearing promissory notes receivable from Ageology, due on demand. The notes are secured by all personal property and fixtures owned by Ageology and are included, along with interest, in "Notes receivable from related parties" on the consolidated balance sheets. Also included in this account are notes receivable from certain officers at December 31, 2013 of $154 which were fully paid in early 2014.

        The following table presents summarized financial information of Ageology:

 
  Three Months
Ended
March 31,
 
 
  2014   2013  

Statements of Operations

             

Net sales

  $   $ 2  

Net loss

    (1,604 )   (408 )

8. LINE OF CREDIT

        On July 20, 2012, the Company entered into a five-year line of credit with General Electric Capital Corporation ("GE"). The original facility was comprised of a $60,000 revolving loan commitment, which is secured by security interest in and lien upon substantially all of the Company's assets, not otherwise encumbered. The Company maintains a depository bank account where money is swept directly to the line of credit. Advances under the revolving credit loan commitment are limited to a borrowing base that consists of approximately 85% of the book value of eligible accounts receivable. In 2013, the facility was amended to increase the aggregate revolving loan commitments under the line of credit from $60,000 to $85,000, leaving $46,253 available to borrow as of March 31, 2014. See Note 15 for discussion on the Company's subsequent amendment to further increase the aggregate revolving loan commitments under the line of credit.

        Interest on borrowings are charged at a rate equal to either: (a) the base rate, which equates to the rate last quoted by The Wall Street Journal as the "Prime Rate" or as further defined in the agreement in the absence of such, plus an applicable margin (the "Base Rate"); or (b) LIBOR, as defined by the agreement, plus an applicable margin. The applicable margin on the Base Rate borrowings is 0.75% and on LIBOR rate borrowings is 1.75%. The effective interest rate for Base Rate borrowings at both March 31, 2014 and December 31, 2013 was 4.00%. The effective rate on LIBOR rate borrowings at March 31, 2014 and December 31, 2013 was 1.903% and 1.92%, respectively. At March 31, 2014, the Company had Base Rate borrowings outstanding in the amount $13,747 and

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DIPLOMAT PHARMACY, INC.

Notes to Condensed Consolidated Financial Statements (Unaudited) (Continued)

(Dollars in Thousands, Except Per Share Amounts)

8. LINE OF CREDIT (Continued)

LIBOR rate borrowings outstanding in the amount of $25,000. Additionally, the Company is charged a monthly unused commitment fee ranging from 0.25% to 0.50% on the average unused daily balance.

        In connection with securing this facility, the Company incurred transaction costs totaling $1,097. These costs are being amortized as interest expense over the five-year life of the line of credit.

        The revolving credit commitment with GE and the mortgage with JPMorgan Chase Bank, N.A. (Note 9) contain certain financial and non-financial covenants. The Company was in compliance with all covenants as of March 31, 2014 and December 31, 2013.

9. DEBT

        Debt consists of the following:

 
  March 31,
2014
  December 31,
2013
 

Note payable to an individual; payable monthly in the amount of $242-$282 including interest at 1.3% through January 2017; secured by redeemed shares held in escrow per the pledge agreement and subordinated to the line of credit commitment and the mortgage loan

  $ 13,453   $ 14,252  

Note payable to a shareholder; payable quarterly in the amount of $100 including interest at 1.3%; matures July 20, 2017; secured by redeemed shares held in escrow per the pledge agreement and subordinated to the line of credit commitment and the mortgage loan

   
7,158
   
7,235
 

Mortgage with JPMorgan Chase; payable in quarterly payments of principal of $124 plus interest at a rate per year equal to the adjusted LIBOR rate (2.15% effective rate at March 31, 2014) plus the floating rate (4.25% effective rate at March 31, 2014); matures June 30, 2014; secured by certain property

   
2,604
   
2,728
 

Note payable to an individual; payable quarterly in the amount of $79 including interest at 4.25%; matures July 20, 2017; secured by redeemed shares held in escrow per the pledge agreement and subordinated to the line of credit commitment and the mortgage loan

   
1,020
   
1,087
 

Note payable to an individual; payable quarterly in the amount of $40 interest free; matures June 15, 2015; unsecured and subordinated to the line of credit commitment and the mortgage loan

   
200
   
240
 
           

   
24,435
   
25,542
 

Less short-term debt, including current portion of long-term debt

   
(6,533

)
 
(6,693

)
           

Long-term debt, less current portion

 
$

17,902
 
$

18,849
 
           
           

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DIPLOMAT PHARMACY, INC.

Notes to Condensed Consolidated Financial Statements (Unaudited) (Continued)

(Dollars in Thousands, Except Per Share Amounts)

10. INCOME TAXES

        Significant components of the expense for income taxes for the period from January 23, 2014 to March 31, 2014 are as follows:

Current:

       

Federal

  $ 1,211  

State and local

    114  
       

Total current

    1,325  

Deferred:

   
 
 

Federal

    2,341  

State and local

    151  
       

Total deferred

    2,492  
       

  $ 3,817  
       
       

        Included in the deferred tax expense is an expense recorded upon the January 23, 2014 effectiveness of the Company's election to become a C corporation.

        The reconciliation of income taxes computed at the United States federal statutory tax rate to income tax expense for the period from January 23, 2014 to March 31, 2014 is:

Income tax expense at United States statutory rate

  $ 1,872  

Tax effect from:

       

Earnings while an S corporation

    (650 )

Adoption of C corporation status

    2,492  

State income taxes, net of federal benefit

    114  

Other

    (11 )
       

Income tax expense

  $ 3,817  
       
       

        Significant components of the Company's deferred tax assets and liabilities at March 31, 2014 are as follows:

Deferred tax assets:

       

Compensation and benefits

  $ 1,492  

Accounts receivable

    307  

Other temporary differences

    62  
       

Total deferred tax assets

    1,861  

Deferred tax liabilities:

   
 
 

Property and intangible assets

    2,538  

Investment

    1,507  

Prepaid expenses

    308  
       

Total deferred tax liabilities

    4,353  
       

Total deferred taxes

  $ 2,492  
       
       

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DIPLOMAT PHARMACY, INC.

Notes to Condensed Consolidated Financial Statements (Unaudited) (Continued)

(Dollars in Thousands, Except Per Share Amounts)

11. COMMITMENTS AND CONTINGENCIES

Claims and Lawsuits

        The Company is subject to claims and lawsuits that arise primarily in the ordinary course of business. It is the opinion of the Company that the disposition or ultimate resolution of such claims and lawsuits will not have a material adverse effect on the consolidated financial position of the Company.

Purchase Commitments

        The Company purchases a significant portion of its prescription drug inventory from AmerisourceBergen, a prescription drug wholesaler. The Company entered into an agreement in January 2012 with AmerisourceBergen that required a minimum of $3,500,000 in purchase obligations over a five-year period. The Company fully expects to meet this requirement. Furthermore, the Company has alternative vendors available if necessary.

        The Company purchases certain prescription drugs from Celgene, a drug manufacturer. These purchases also comprise a large portion of the Company's prescription drug inventory. The Company has no minimum purchase obligation with Celgene.

Lease Commitments

        The Company leases multiple pharmacy and distribution facilities and office equipment under various operating lease agreements expiring through December 2017. Total rental expense under operating leases for the three months ended March 31, 2014 and 2013 was $428 and $205, respectively, exclusive of property taxes, insurance and other occupancy costs generally payable by the Company.

12. CAPITAL STOCK

        Pursuant to the Second Amended and Restated Articles of Incorporation dated March 31, 2014, the Company has the following classes of capital stock:

Class
  Par Value   Authorized   Voting Rights

Class A Common

  $ 1.00     5,000   20 votes per share

Class B Common

  $ 1.00     95,000   Non-voting

Class C Common

  $ 1.00     732   One vote per share

Series A Preferred

  $ 0.001     732   As described below
               

          101,464    
               
               

        Each class of common stock has equal and identical rights, preferences and limitations, other than for voting rights. No common stock is redeemable at the option of the holder. The Series A Preferred Stock is entitled to vote as if converted into Class C Common Stock on the voting date.

        The Series A Preferred Stock has no coupon rate, is convertible into Class C Common Stock at any time at the option of the holder, has optional redemption rights and has liquidation preferences. The conversion rate is on a one-for-one basis, subject to adjustment for stock splits and subdivisions, stock combinations, certain future issuances of common stock or common stock equivalents at effective

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DIPLOMAT PHARMACY, INC.

Notes to Condensed Consolidated Financial Statements (Unaudited) (Continued)

(Dollars in Thousands, Except Per Share Amounts)

12. CAPITAL STOCK (Continued)

prices lower than the then-applicable conversion rate, and other circumstances as described in the amended articles of incorporation. The Series A Preferred Stock automatically converts into Class C Common Stock upon either (i) a qualified common stock public offering (as defined), or (ii) an affirmative vote of the majority of the Series A Preferred Stock.

        Pursuant to an affirmative vote of the majority of the Series A Preferred Stock, the holders thereof can demand redemption of all outstanding shares of Class A Preferred Stock anytime on or after the earlier of (i) January 23, 2012, (ii) such time as the Company's aggregate market price (as defined) is equal or greater than $5,000,000, and (iii) such time as certain changes are made to the Company's board of directors, certain executive officers and/or certain controlling shareholders. The redemption price is payable in cash and will be the greater of the original issuance price plus all declared but unpaid dividends and fair market value (as defined). Upon a liquidation event (as defined) the Series A Preferred Stockholders are entitled to receive the greater of (i) the sum of the original issuance price plus a 15% return compounded annually and (ii) the amount they would receive upon the liquidation had the Series A Preferred Stock converted into Class C Common Stock on the liquidation date.

        In January 2014, the Company entered into a Series A Preferred Stock Purchase Agreement with T. Rowe Price under which the Company issued to certain funds of T. Rowe Price 351.32097 shares of Series A Preferred Stock at a purchase price of $142 per share. The Company used $20,000 of this $50,000 investment for general corporate purposes inclusive of fees associated with this transaction, and the remaining $30,000 was used to redeem common stock ($26,900) and common stock options ($3,100) (Note 13).

13. SHARE-BASED COMPENSATION

        The Company's 2007 Stock Option Plan, as approved by the Company's Board of Directors and amended March 1, 2009, authorizes the granting of stock options to its key employees at no less than the market price on the date the option is granted. Options generally become exercisable in installments of 25% per year, beginning on the first anniversary of the grant date and each of the three anniversaries thereafter, and have a maximum term of ten years. All share-based compensation awards for employees have been granted under the 2007 Stock Option Plan. The Company uses the Black-Scholes-Merton option pricing model to determine the valuation of granted options.

        Total compensation cost expensed during the three months ended March 31, 2014 and 2013 related to employee stock options was $262 and $239, respectively. In January 2014, the Company redeemed stock options to buy 0.0175 shares of Class A common stock and 0.0107 shares of Class B common stock from certain current and former employees for cash consideration totaling $3,100 (Note 12).

        At March 31, 2014, the total compensation cost related to non-vested options not yet recognized was $2,021, which will be recognized over a weighted average period of 1.5 years, assuming the employees complete their service period for vesting of the options.

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DIPLOMAT PHARMACY, INC.

Notes to Condensed Consolidated Financial Statements (Unaudited) (Continued)

(Dollars in Thousands, Except Per Share Amounts)

13. SHARE-BASED COMPENSATION (Continued)

        A summary of the Company's stock option activity for the three months ended March 31, 2014 is as follows:

 
  Number
of Shares
  Weighted
Average
Exercise
Price
  Weighted
Average
Grant
Date Fair
Value
  Weighted
Average
Remaining
Contractual
Term
  Aggregate
Intrinsic
Value
 
 
   
  (In Thousands)
  (Years)
   
 

Outstanding at January 1, 2014

    783.2   $ 36.5   $ 7.3     7.0   $ 69,732  

Cancelled

    (28.2 )   32.4     9.0              
                           

Outstanding at March 31, 2014

    755.0   $ 36.7   $ 7.3     6.8   $ 70,001  
                       
                       

Exercisable at March 31, 2014

    434.9   $ 24.6   $ 6.8     5.6   $ 41,417  
                       
                       

14. INCOME PER COMMON SHARE

        The following is a reconciliation of the numerators and the denominators of the basic and diluted income per common share:

 
  Three Months
Ended
March 31,
 
 
  2014   2013  

Net income

  $ 1,690   $ 1,915  

Net income allocable to preferred shareholders

    102      
           

Net income allocable to common shareholders

  $ 1,588   $ 1,915  
           
           

Weighted average common shares outstanding, basic

    4,132     4,275  

Incremental shares on assumed exercise of stock options

    303     18  
           

Weighted average common shares outstanding, diluted

    4,435     4,293  
           
           

Net income per common share:

             

Basic

  $ 384.38   $ 448.04  
           
           

Diluted

  $ 358.17   $ 446.17  
           
           

        There were no anti-dilutive options outstanding as of March 31, 2014 or 2013.

15. SUBSEQUENT EVENTS

        The Company has evaluated subsequent events through July 2, 2014, the date the consolidated financial statements were originally available for issuance.

        In April 2014, the Company entered into a Series A Preferred Stock Purchase Agreement with Janus Capital Group ("Janus") under which the Company issued to certain funds of Janus 379.4267 shares of Series A Preferred Stock at a purchase price of $142 per share. The Company will use $25,200 of the $54,000 investment for general corporate purposes inclusive of fees associated with this

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DIPLOMAT PHARMACY, INC.

Notes to Condensed Consolidated Financial Statements (Unaudited) (Continued)

(Dollars in Thousands, Except Per Share Amounts)

15. SUBSEQUENT EVENTS (Continued)

transaction, and the remaining $28,800 was used to redeem common stock ($26,500) and common stock options ($2,300).

        On May 30, 2014, the Company satisfied its mortgage loan obligation owed to JPMorgan Chase Bank. The total payment of $2,609 was comprised of $2,604 for the face amount of the note and $5 for accrued interest.

        On May 30, 2014, the Company entered into a Stock Option Redemption Agreement with a former executive whereby the Company redeemed options to acquire 0.104 shares of common stock, comprised of 0.0052 shares of Class A Voting Common Stock and 0.0988 shares of Class B Non-Voting Common Stock, for the cash purchase price of $4,000.

        On June 26, 2014, the Company's line of credit with GE was amended to increase the aggregate revolving loan commitments under the line of credit from $85,000 to $120,000.

        On June 27, 2014, the Company acquired all of the outstanding stock of MedPro Rx, Inc. ("MedPro") for $52,000 in cash, 84.31703 shares of the Company's Class B Nonvoting Common Stock, valued at approximately $12,000, and up to $11,500 of contingent consideration that is based on the achievement of certain revenue and gross profit targets. MedPro is a specialty pharmacy focused on specialty infusion therapies including hemophilia and immune globulin based in Raleigh, North Carolina. The Company acquired MedPro to expand its existing specialty infusion business and to increase its presence in the mid-Atlantic Southern regions of the country. The results of operations for MedPro will be included in the Company's consolidated financial statements from the acquisition date.

        The Company is in the process of preparing for an initial public offering ("IPO"). The Company's expectation is that the IPO will occur during the latter half of 2014, though no assurances can be made. Upon completion of the IPO, all outstanding shares of preferred stock, Class A Voting Stock and Class B Non-Voting Stock will automatically convert into shares of common stock. Additionally, prior to our IPO, the Company will effect a stock split in the form of a stock dividend. Accordingly, all share and per share amounts presented in these consolidated financial statements and notes thereto, will be adjusted, where applicable to reflect this stock dividend and adjustment of the preferred stock conversion ratio.

        In addition to giving effect to the Company's election to be a C corporation as described in Note 1, the pro forma data presented on the condensed consolidated statements of operations give effect to the conversion of outstanding capital stock as if such conversion occurred immediately upon its January 2014 issuance date. Similarly, the pro forma shareholders' deficit data presented on the condensed consolidated balance sheets give effect to these conversions as if they occurred on March 31, 2014. This pro forma data does not reflect the common shares issued in the IPO nor the expected uses of the related net proceeds.

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Independent Auditor's Report

To the Stockholders and Board of Directors
American Homecare Federation, Inc. and Affiliate

        We have audited the accompanying consolidated financial statements of American Homecare Federation, Inc. and Affiliate (the "Company"), which comprise the consolidated balance sheet as of September 30, 2013 and the related consolidated statements of operations and comprehensive income, changes in stockholders' equity, and cash flows for the nine months then ended, and the related notes to the consolidated financial statements.

Management's Responsibility for the Consolidated Financial Statements

        Management is responsible for the preparation and fair presentation of these consolidated financial statements in accordance with accounting principles generally accepted in the United States of America; this includes the design, implementation, and maintenance of internal control relevant to the preparation and fair presentation of consolidated financial statements that are free from material misstatement, whether due to fraud or error.

Auditor's Responsibility

        Our responsibility is to express an opinion on these consolidated financial statements based on our audit. We conducted our audit in accordance with auditing standards generally accepted in the United States of America. Those standards require that we plan and perform the audit to obtain reasonable assurance about whether the consolidated financial statements are free from material misstatement.

        An audit involves performing procedures to obtain audit evidence about the amounts and disclosures in the consolidated financial statements. The procedures selected depend on the auditor's judgment, including the assessment of the risks of material misstatement of the consolidated financial statements, whether due to fraud or error. In making those risk assessments, the auditor considers internal control relevant to the entity's preparation and fair presentation of the consolidated financial statements in order to design audit procedures that are appropriate in the circumstances, but not for the purpose of expressing an opinion on the effectiveness of the entity's internal control. Accordingly, we express no such opinion. An audit also includes evaluating the appropriateness of accounting policies used and the reasonableness of significant accounting estimates made by management, as well as evaluating the overall presentation of the consolidated financial statements.

        We believe that the audit evidence we have obtained is sufficient and appropriate to provide a basis for our audit opinion.

Opinion

        In our opinion, the consolidated financial statements referred to above present fairly, in all material respects, the financial position of American Homecare Federation, Inc. and Affiliate as of September 30, 2013 and the results of their operations and their cash flows for the nine months then ended, in accordance with accounting principles generally accepted in the United States of America.

Emphasis of Matter

        As described in Note 12 to the consolidated financial statements, on December 16, 2013, all of the outstanding stock of American Healthcare Federation, Inc. was acquired by an unrelated party.

/s/ PLANTE MORAN PLLC

June 24, 2014

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American Homecare Federation, Inc. and Affiliate

Consolidated Balance Sheet

September 30, 2013

 
   
 

Assets

       

Current Assets

   
 
 

Cash and cash equivalents

  $ 1,069,028  

Investments (Note 2)

    557,876  

Accounts receivable—Net of allowance for doubtful accounts of $244,000

    3,992,481  

Inventories (Note 1)

    1,167,065  

Prepaid expenses

    38,295  
       

Total current assets

    6,824,745  

Property and Equipment —Net (Note 3)

    741,878  

Other Assets —Security deposits

   
1,897
 
       

Total assets

  $ 7,568,520  
       
       

Liabilities and Stockholders' Equity

       

Current Liabilities

   
 
 

Accounts payable

  $ 1,283,820  

Current portion of long-term debt (Note 5)

    362,762  

Accrued and other current liabilities

    1,193,707  
       

Total current liabilities

    2,840,289  

Long-term Debt —Net of current portion (Note 5)

    1,246,798  

Redeemable Common Stock (Note 8)

   
746,459
 

Stockholders' Equity

   
2,734,974
 
       

Total liabilities and stockholders' equity

  $ 7,568,520  
       
       

   

See Notes to Consolidated Financial Statements.

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American Homecare Federation, Inc. and Affiliate

Consolidated Statement of Operations and Comprehensive Income

Nine Months Ended September 30, 2013

Net Sales

  $ 21,757,091  

Cost of Goods Sold

    16,859,764  
       

Gross Profit

    4,897,327  

Selling, General, and Administrative Expenses

    3,888,748  
       

Income from Operations

    1,008,579  

Other Income (Expenses)

       

Interest income

    25,288  

Loss on sale of investments—Realized

    (10,719 )

Interest expense

    (63,847 )
       

Net other expenses

    (49,278 )
       

Net Income

    959,301  

Other Comprehensive Income —Unrealized gain on investments

    3,656  
       

Comprehensive Income

  $ 962,957  
       
       

Amounts Attributable to Noncontrolling Interest and AHF Stockholders

       

Net Income

  $ 959,301  

Less Net Income Attributable to Noncontrolling Interest in Affiliate

    25,851  
       

Net Income Attributable to AHF Stockholders

  $ 933,450  
       
       

Comprehensive Income

  $ 962,957  

Less Comprehensive Income Attributable to Noncontrolling Interest in Affiliate

    25,851  
       

Comprehensive Income Attributable to AHF Stockholders

  $ 937,106  
       
       

   

See Notes to Consolidated Financial Statements.

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American Homecare Federation, Inc. and Affiliate

Consolidated Statement of Changes in Stockholders' Equity

Nine Months Ended September 30, 2013

 
  AHF Stockholders    
   
 
 
  Common
Stock
  Treasury
Stock
  Retained
Earnings
  Accumulated
Other
Comprehensive
Loss
  Total   Noncontrolling
Interest
  Total
Equity
 

Balance —January 1, 2013

  $ 221,650   $ (262,747 ) $ 2,071,382   $ (10,627 ) $ 2,019,658   $ 184,882   $ 2,204,540  

Net income

            933,450         933,450     25,851     959,301  

Other comprehensive income

                3,656     3,656         3,656  

Distributions

            (449,687 )       (449,687 )   (22,620 )   (472,307 )

Issuance of noncontrolling interest (Note 11)

                        70,000     70,000  

Redemption (Note 7)

        (18,110 )           (18,110 )       (18,110 )

Accretion of redeemable common stock (Note 8)

            (19,606 )       (19,606 )       (19,606 )

Reclassification—Expiration of redemption options (Note 8)

            7,500         7,500         7,500  
                               

Balance —September 30, 2013

  $ 221,650   $ (280,857 ) $ 2,543,039   $ (6,971 ) $ 2,476,861   $ 258,113   $ 2,734,974  
                               
                               

   

See Notes to Consolidated Financial Statements.

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American Homecare Federation, Inc. and Affiliate

Consolidated Statement of Cash Flows

Nine Months Ended September 30, 2013

Cash Flows from Operating Activities

       

Net income

  $ 959,301  

Adjustments to reconcile net income to net cash from operating activities:

       

Depreciation

    33,576  

Loss on disposal of property and equipment

    314  

Net realized loss on investments

    10,719  

Changes in operating assets and liabilities which (used) provided cash:

       

Accounts receivable

    (704,780 )

Inventories

    213,048  

Prepaid expenses and other assets

    12,592  

Accounts payable

    562,179  

Accrued and other liabilities

    884,460  
       

Net cash provided by operating activities

    1,971,409  

Cash Flows from Investing Activities

       

Purchases of property and equipment

    (16,421 )

Purchases of investments

    (212,925 )

Proceeds from sales and maturities of investments

    212,155  
       

Net cash used in investing activities

    (17,191 )

Cash Flows from Financing Activities

       

Payments on debt

    (343,381 )

Payments on stockholders' loans

    (373,430 )

Payments on revolving credit facilities

    (750,000 )

Issuance of noncontrolling interest

    70,000  

Redemption of stock

    (18,110 )

Distributions to noncontrolling interest

    (22,620 )

Distributions to stockholders

    (449,687 )
       

Net cash used in financing activities

    (1,887,228 )
       

Net Increase in Cash and Cash Equivalents

    66,990  

Cash and Cash Equivalents —Beginning of period

    1,002,038  
       

Cash and Cash Equivalents —End of period

  $ 1,069,028  
       
       

Supplemental Cash Flow Information —Cash paid for interest

  $ 63,847  
       
       

   

See Notes to Consolidated Financial Statements.

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American Homecare Federation, Inc. and Affiliate

Notes to Consolidated Financial Statements

September 30, 2013

Note 1—Nature of Business and Significant Accounting Policies

        American Homecare Federation Inc. (AHF) is a specialty pharmacy sales business headquartered in Enfield, Connecticut. The Company stocks, dispenses, and distributes prescriptions for various biotech and specialty pharmaceuticals, principally for the treatment of hemophilia and other blood disorders

        Basis of Presentation —The accompanying consolidated financial statements have been prepared in accordance with accounting principles generally accepted in the United States of America (GAAP) and include the accounts of AHF and an affiliate, 31 Moody Road, LLC, a variable interest entity for which the Company is the primary beneficiary (collectively, the "Company"). All significant intercompany transactions and balances have been eliminated upon consolidation.

        Cash and Cash Equivalents —Cash includes cash on hand and cash held in banks which is readily convertible to known amounts of cash. For the purpose of the consolidated statement of cash flows, included in cash are money market funds totaling $27,332 at September 30, 2013.

        Investments —Debt and equity securities purchased to be held for an indefinite period of time are classified as available-for-sale securities. Available-for-sale securities are reported at fair value with unrealized gains and temporary losses reported in other comprehensive income.

        Fair Value of Financial Instruments —Financial instruments consist of cash equivalents, investments, accounts receivable, accounts payable, and debt. The carrying amount of all debt approximates fair value due to the existence of interest rates that approximate prevailing market rates. The carrying amount of all other significant financial instruments approximates fair value due to the short maturities.

        Accounting standards require certain assets and liabilities be reported at fair value in the financial statements and provide a framework for establishing that fair value. The framework for determining fair value is based on a hierarchy that prioritizes the inputs and valuation techniques used to measure fair value.

        Fair values determined by Level 1 inputs use quoted prices in active markets for identical assets or liabilities that the Company has the ability to access.

        Fair values determined by Level 2 inputs use other inputs that are observable, either directly or indirectly. These Level 2 inputs include quoted prices for similar assets and liabilities in active markets, and other inputs such as interest rates and yield curves that are observable at commonly quoted intervals.

        Level 3 inputs are unobservable inputs, including inputs that are available in situations where there is little, if any, market activity for the related asset. These Level 3 fair value measurements are based primarily on management's own estimates using pricing models, discounted cash flow methodologies, or similar techniques taking into account the characteristics of the asset.

        In instances whereby inputs used to measure fair value fall into different levels in the above fair value hierarchy, fair value measurements in their entirety are categorized based on the lowest level input that is significant to the valuation. The Company's assessment of the significance of particular inputs to these fair value measurements requires judgment and considers factors specific to each asset or liability.

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American Homecare Federation, Inc. and Affiliate

Notes to Consolidated Financial Statements (Continued)

September 30, 2013

Note 1—Nature of Business and Significant Accounting Policies (Continued)

        Trade Accounts Receivable —Accounts receivable primarily include amounts from third-party pharmacy benefit managers and insurance providers and are based on contracted prices. Trade receivables require no collateral and are on an unsecured basis. Accounts receivable terms vary by payor, but generally are due within 30 days after the sale of the product or performance of the service.

        The Company maintains an allowance for doubtful accounts that reduces receivables to amounts that are expected to be collected.

        In estimating the allowance, management considers factors such as current overall economic conditions, historical and anticipated customer performance, historical experience with write-offs, and the level of past due accounts. Changes in these conditions may result in additional allowances. All amounts deemed to be uncollectible are charged against the allowance for doubtful accounts in the period that determination is made. The allowance for doubtful accounts on accounts receivable balances was $244,000 as of September 30, 2013.

        Inventories —Inventories consist primarily of prescription medications and over-the-counter medications. Inventories are stated at the lower of average cost or market, with cost determined on the first-in, first-out (FIFO) method, and are adjusted to actual cost monthly based on a physical count.

        Property and Equipment —Property and equipment are recorded at cost and are depreciated using the straight-line method. Assets are depreciated over their estimated useful lives, including leasehold improvements since the lease is with a related party.

        Costs of maintenance and repairs are charged to expense when incurred. Renewals and improvements that extend the useful life of the assets are capitalized. The cost of assets sold or retired and the related amount of the accumulated depreciation are eliminated from the accounts in the period of sale or retirement. Any resulting gain or loss is included in earnings.

        Revenue Recognition —The Company recognizes revenue from prescription drug sales for home delivery at the time the drugs are shipped. Shipping and handling costs are not billed to patients; therefore, there are no shipping and handling revenues. Conversely, shipping and handling costs incurred by the Company are included in selling, general, and administrative expenses and were approximately $23,000.

        Advertising Expenses —Advertising expenses are charged to income during the period in which they are incurred. Advertising expenses were approximately $88,000.

        Income Taxes —Pursuant to provisions of the Internal Revenue Code, AHF has elected to be taxed as an S Corporation. Generally, the income of an S Corporation is not subject to federal income tax at the corporate level, but rather the stockholders are required to include a pro rata share of the corporation's taxable income or loss in their personal income tax returns, irrespective of whether distributions have been paid. Accordingly, no provision for federal income taxes has been made in the accompanying financial statements.

        31 Moody Road, LLC is treated as a partnership for federal income tax purposes. Consequently, federal income taxes are not payable or provided for by the entity. Members are taxed individually on their pro-rata ownership share of the earnings. The net income or loss is allocated among the members in accordance with the Company's operating agreement.

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American Homecare Federation, Inc. and Affiliate

Notes to Consolidated Financial Statements (Continued)

September 30, 2013

Note 1—Nature of Business and Significant Accounting Policies (Continued)

        The Company classifies interest and penalties associated with tax liabilities as interest expense and operating expenses, respectively.

        Income tax filings pertaining to the federal and state filings remain open for potential examinations for the 2010 through 2013 years.

        Concentrations of Risk —Financial instruments which potentially subject the Company to concentrations of credit risk consist principally of cash on deposit with banks or other financial institutions and trade accounts receivable.

        As of and for the nine months ended September 30, 2013, approximately 72 percent of sales and 80 percent of accounts receivable related to six insurance carriers. Concentrations of credit risk with respect to trade receivables are limited by the large number of patients comprising the Company's customer base and their dispersion across multiple payors and multiple geographic areas.

        The Company purchases prescription drugs from pharmaceutical companies. Three companies make up 75 percent of the cost of sales and the accounts payable as of and for the nine months ended September 30, 2013.

        Use of Estimates —The preparation of financial statements in conformity with generally accepted accounting principles requires management to make estimates and assumptions that affect the reported amounts of assets and liabilities and disclosure of contingent assets and liabilities at the date of the financial statements and the reported amounts of revenue and expenses during the reporting period. Although the estimates are considered reasonable, actual results could differ from those estimates. The most significant estimate that is susceptible to significant change in the near term relates to the determination of the allowance for doubtful accounts. Adjustments related to changes in the estimates are reflected in the Company's results of operations in the period in which those estimates changed.

        Subsequent Events —The consolidated financial statements and related disclosures include evaluation of events up through and including June 24, 2014, which is the date the consolidated financial statements were available to be issued. See Note 12 for disclosure of significant events subsequent to September 30, 2013.

Note 2—Investments and Fair Value

        The details of the Company's investments in debt and equity securities are as follows at September 30, 2013:

    Available-for-sale Securities

 
  Amortized Cost   Fair Value   Gross
Unrealized
Gains
  Gross
Unrealized
Losses
 

Debt securities—Corporate

  $ 564,847   $ 557,876   $ 155   $ (7,126 )
                   
                   

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American Homecare Federation, Inc. and Affiliate

Notes to Consolidated Financial Statements (Continued)

September 30, 2013

Note 2—Investments and Fair Value (Continued)

        Realized gains and losses are determined on the basis of specific identification. During 2013, sales proceeds and gross realized gains and losses on securities classified as available for sale were as follows:

Sales proceeds

  $ 212,155  

Gross realized gains

    279  

Gross realized losses

    (10,998 )

        The following table shows the gross unrealized losses and fair value of the Company's investments with unrealized losses that are not deemed to be other-than-temporarily impaired.

 
  September 30, 2013  
 
  Less than 12 Months   12 Months or Greater  
 
  Fair Value   Unrealized
Losses
  Fair Value   Unrealized
Losses
 

Debt securities—Corporate

  $ 377,113   $ (2,445 ) $ 109,223   $ (4,681 )
                   
                   

        Corporate Bonds —The Company's unrealized losses on investments in corporate bonds relate to high yield bonds. The severity of the impairment and duration of the losses reflect normal market fluctuations. The Company evaluated the near-term prospects of the issuers. Based on the evaluation and the Company's ability and intent to hold the investments for a reasonable period of time sufficient for a forecasted recovery of fair value, management does not consider these investments to be other-than-temporarily impaired at September 30, 2013.

        The Company measures the available-for-sale debt securities at fair value on a recurring basis. The fair value of the debt securities is based primarily on Level 1 inputs as described in Note 1.

        The contractual maturities of these available-for-sale investments as of September 30, 2013 were as follows:

 
  Fair Value   Cost  

September 30, 2014

  $ 172,934   $ 176,805  

September 30, 2015

    175,619     178,337  

September 30, 2016

    209,323     209,705  
           

Total

  $ 557,876   $ 564,847  
           
           

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American Homecare Federation, Inc. and Affiliate

Notes to Consolidated Financial Statements (Continued)

September 30, 2013

Note 3—Property and Equipment

        Property and equipment are summarized as follows:

 
  Amount   Depreciable
Life—Years
 

Land

  $ 97,778      

Building

    457,222     40  

Furniture and fixtures

    344,496     3 - 10  

Leasehold improvements

    228,846     5 - 39  
             

Total cost

    1,128,342        

Accumulated depreciation

    386,464        
             

Net property and equipment

  $ 741,878        
             
             

        Depreciation expense was $33,576 for 2013.

Note 4—Line of Credit

        Under a line of credit agreement with a bank, the Company had available borrowings of $2,500,000 as of September 30, 2013. Interest on the outstanding balance was payable monthly at the prime rate (an effective rate of 3.25 percent at September 30, 2013). The line of credit was due upon demand and was collateralized by all of AHF's assets. There were no outstanding borrowings on the line at September 30, 2013. The line was closed in December 2013.

Note 5—Long-term Debt

        Long-term debt at September 30, 2013 is as follows:

Installment note payable to a foundation in monthly installments of $33,360 including interest at 4.5 percent. The note matures in April 2017. The note was unsecured. The note was paid in full in December 2013

  $ 1,322,530  

Installment note payable to a foundation in monthly installments of $3,168 including interest at 5.00 percent. The note matures in July 2027. The note is secured by real estate

    287,030  
       

Total

    1,609,560  

Less current portion

    362,762  
       

Long-term portion

  $ 1,246,798  
       
       

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American Homecare Federation, Inc. and Affiliate

Notes to Consolidated Financial Statements (Continued)

September 30, 2013

Note 5—Long-term Debt (Continued)

        The scheduled maturities of the above debt are as follows:

Years Ending September 30
  Amount  

2014

  $ 362,762  

2015

    379,504  

2016

    397,020  

2017

    247,287  

2018

    18,110  

Thereafter

    204,877  
       

Total

  $ 1,609,560  
       
       

        Interest expense for the nine months ended September 30, 2013 was $63,847.

Note 6—Capital Stock

        Common stock consists of 200,000 authorized shares of no par value stock. As of September 30, 2013, there were 11,501 shares issued and outstanding.

Note 7—Stock Subscription, Redemption, and Restriction Agreements

        Under the terms of stock subscription, redemption, and restriction agreements, the stockholders had the option to require AHF to repurchase any or all of their shares on or within 30 days of the third or fourth anniversary of the date of issuance of the shares, at a price specified in the agreement. Under the same agreement, AHF had the option to repurchase these shares upon 30 days' notice to the respective stockholders at any time after the third anniversary of the date of issuance of the shares, at a price specified in the agreement. Stock transfers were restricted under the terms of the agreement.

        During 2013, AHF repurchased 100 shares of common stock of one stockholder in accordance with the Articles of Incorporation and Corporate Bylaws, for the amount of $18,110.

Note 8—Redeemable Common Stock

        Redeemable common stock is a temporary equity account that consists of shares of outstanding common stock that contain unexpired stockholder options to require AHF to repurchase the shares under the circumstances described in Note 7. The shares are initially recorded at fair market value, and the carrying amount is accreted to the maximum redemption price over a three-year period. When the related put options expire, the carrying amounts of the shares are reclassified to permanent equity accounts.

        The maximum redemption price for all outstanding shares with unexpired put options as of September 30, 2013 was $755,400. The related put options were scheduled to expire at various dates through September 2015. As discussed in Note 12, all shares of the Company's stock were purchased by an unrelated party in December 2013. No put options were exercised prior to the purchase.

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American Homecare Federation, Inc. and Affiliate

Notes to Consolidated Financial Statements (Continued)

September 30, 2013

Note 8—Redeemable Common Stock (Continued)

        The changes in redeemable common stock for the nine-month period ended September 30, 2013 are as follows:

Balance—January 1, 2013

  $ 734,353  

Accretion of redeemable common stock

    19,606  

Reclassifications to permanent equity

    (7,500 )
       

Balance—September 30, 2013

  $ 746,459  
       
       

Note 9—Operating Lease

        AHF leases office space in West Springfield, Massachusetts under an operating lease arrangement with consecutive three-year renewal options. The current renewal option expires in February 2016 and the final renewal option, if accepted, would expire in February 2019. The monthly base rent for 2013 was $1,803. The lease also requires AHF to pay a proportionate share of taxes, insurance, utilities, and maintenance costs. Total rent under this agreement was $16,019 for the nine months ended September 30, 2013.

        Future minimum annual commitments under this operating lease are as follows:

Years Ending September 30
  Amount  

2014

  $ 21,641  

2015

    21,641  

2016

    9,017  
       

Total

  $ 52,299  
       
       

Note 10—Retirement Plans

        AHF sponsors a 401(k) plan for substantially all of its employees. The plan allows for the employer to make discretionary matching contributions and discretionary profit-sharing contributions. Contributions to the plan totaled $121,539 for the nine months ended September 30, 2013.

Note 11—Information About Variable Interest Entities

        AHF leases its main operating facility from 31 Moody Road, LLC (Moody), an entity with common ownership. The entity was formed for the purpose of holding the building leased to AHF. The lease requires monthly rent payments that are adjusted annually based upon changes in the Consumer Price Index. The lease agreement expires in May 2017, and includes a five-year renewal option through May 2022. Moody generated $69,036 of rental income during the nine months ended September 30, 2013, all of which was from AHF and was eliminated in consolidation.

        Moody is considered to be a variable interest entity (VIE) because its sole property is leased to an entity under common control and the lease with AHF is the primary source of resources to service the VIE's obligations.

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American Homecare Federation, Inc. and Affiliate

Notes to Consolidated Financial Statements (Continued)

September 30, 2013

Note 11—Information About Variable Interest Entities (Continued)

        AHF determined that it is the primary beneficiary of the VIE because the lease agreement provides it with (1) the power to direct the activities of the VIE that most significantly impact its economic performance and (2) the obligation to absorb losses that could potentially be significant to the VIE. As a result, Moody has been included in the financial statements as a consolidated VIE.

        Included in the consolidated balance sheet as of September 30, 2013 are the following amounts related to the VIE:

Current assets

  $ 30,200  

Property and equipment

    514,943  
       

Total assets

  $ 545,143  
       
       

Current liabilities

  $ 14,833  

Long-term debt

    272,197  
       

Total liabilities

  $ 287,030  
       
       

Equity—Noncontrolling interest

  $ 258,113  
       
       

        The creditors and beneficial interest holders of the VIE have no recourse against the assets or general credit of AHF.

Note 12—Subsequent Events

        In November and December 2013, the Company paid discretionary bonuses totaling approximately $1,500,000 attributable to 2013 operations. At September 30, 2013, $950,000 of this bonus expense was recorded and was included in accrued and other current liabilities in the accompanying consolidated financial statements, representing the estimated amount attributable to the nine months ended September 30, 2013.

        On December 16, 2013, all of the authorized, issued, and outstanding shares of capital stock of AHF were acquired by Diplomat Pharmacy, Inc. for a total acquisition price of $13,448,982.

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UNAUDITED PRO FORMA COMBINED CONSOLIDATED FINANCIAL INFORMATION

        The following unaudited pro forma combined consolidated balance sheet as of March 31, 2014 presents our financial position after giving pro forma effect to the following as if such transactions had occurred on March 31, 2014:

    our acquisition of MedPro Rx, Inc. ("MedPro") on June 27, 2014;

    our issuance of capital stock to certain funds of T. Rowe Price on January 23, 2014, our issuance of capital stock to certain funds of Janus Capital Group ("Janus") on April 1, 2014 and the conversion of our capital stock into a single class of common shares in connection with this offering (collectively, the "capital stock transactions"); and

    this offering and the contemplated use of the estimated net proceeds therefrom as described under "Use of Proceeds."

        The following unaudited pro forma combined consolidated statement of operations for the three months ended March 31, 2014 presents our operating results after giving pro forma effect to the following as if such transactions had occurred on January 1, 2013:

    our acquisition of MedPro on June 27, 2014;

    our election to be taxed as a C corporation effective on January 23, 2014;

    the capital stock transactions; and

    this offering and the contemplated use of the estimated net proceeds therefrom.

        The following unaudited pro forma combined consolidated statement of operations for the year ended December 31, 2013 presents our operating results after giving pro forma effect to the following as if such transactions had occurred on January 1, 2013:

    our acquisition of American Homecare Federation, Inc. ("AHF") on December 16, 2013;

    our acquisition of MedPro on June 27, 2014;

    our election to be taxed as a C corporation effective on January 23, 2014;

    the capital stock transactions; and

    this offering and the contemplated use of the estimated net proceeds therefrom.

        These transactions are all more fully described in Note 2 hereto. The pro forma adjustments are based on available information and upon assumptions that our management believes are reasonable in order to reflect, on a pro forma basis, the impact of the noted events on its historical consolidated financial information.

        Included in the pro forma combined consolidated financial information is an allocation of the purchase price we paid for MedPro based on preliminary estimates and assumptions. Those estimates and assumptions could change materially as we finalize our assessment of the allocation and the fair values of the net tangible and intangible assets we acquired, some of which are dependent on the completion of valuations being performed by independent valuation specialists. The unaudited pro forma combined consolidated financial information does not reflect any operating efficiencies, associated costs savings or any possible integration costs that may occur related to the MedPro acquisition.

        The unaudited pro forma combined consolidated financial information is included for informational purposes only and does not purport to reflect our results of operations or financial position that would have occurred had it operated as a public company during the periods presented. The unaudited pro forma combined consolidated financial information should not be relied upon as

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being indicative of our financial condition or results of operations had the noted events occurred on the dates assumed nor as a projection of our results of operations or financial position for any future period or date. The preparation of the unaudited pro forma combined consolidated information requires the use of certain assumptions which may be materially different from our actual experience.

        The unaudited pro forma combined consolidated balance sheet and consolidated statements of operations should be read in conjunction with "Use of Proceeds," "Selected Consolidated Financial," "Management's Discussion and Analysis of Financial Condition and Results of Operations" and the historical consolidated financial statements and related notes appearing elsewhere in this prospectus.

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DIPLOMAT PHARMACY, INC.

Unaudited Pro Forma Combined Consolidated Balance Sheet

As of March 31, 2014

 
  Diplomat
Actual
  MedPro
Actual
  MedPro
Acquisition
Adjustments
  Subtotal   Capital
Stock
Transactions
  Offering
Transactions
  Pro Forma
Total
 
 
  (Dollars in Thousands)
 

ASSETS

                                           

Current assets:

                                           

Cash and equivalents

  $   $     $   (A) $     $ 24,505 (I) $   (M) $    

Accounts receivable, net

    122,332                                    

Other receivables

    5,186                                    

Inventories, net

    50,313                                    

Notes receivable from related parties

    2,650                                    

Deferred income taxes

    310             (B)                        

Prepaid expenses and other current assets

    2,373                                    
                               

Total current assets

    183,164                       24,505              

Property and equipment, net

   
12,024
                     
             

Capitalized software for internal use, net

    7,172                                    

Goodwill

    1,537             (C)                      

Definite-lived intangible assets, net

    6,874             (D)                      

Investment in non-consolidated entity

    3,176                                    

Other noncurrent assets

    857                                    
                               

  $ 214,804   $     $     $     $ 24,505   $     $    
                               
                               

LIABILITIES AND SHAREHOLDERS' EQUITY (DEFICIT)

                                           

Current liabilities:

                                           

Accounts payable

  $ 146,620   $     $     $     $   $     $    

Line of credit

    38,747             (E)               (N)      

Short-term debt, including current portion of long-term debt

    6,533                             (N)      

Accrued compensation

    2,129                                    

Income taxes payable

    1,324                                    

Other accrued expenses

    1,920             (F)                      
                               

Total current liabilities

    197,273                                    

Long-term debt, less current portion

   
17,902
                     
   
(N)
     

Deferred income taxes

    2,802             (B)                        

Other noncurrent liabilities

    660                                    

Commitments and contingencies

   
 
   
 
   
 
   
 
   
 
   
 
   
 
 

Shareholders' equity (deficit):

   
 
   
 
   
 
   
 
   
 
   
 
   
 
 

Preferred stock

    48,627                       (48,627) (J)            

Common stock:

                                           

Common shares

                                       

Class A voting shares

                                       

Class B non-voting shares

    4             (G)         (4) (K)            

Class C voting shares

                                       

Additional paid-in capital

    (54,732 )           (G)         73,136 (L)     (O)      

Retained earnings

    2,268             (H)                      
                               

Total shareholders' equity (deficit)

    (3,833 )                     24,505              
                               

  $ 214,804   $     $     $     $ 24,505   $     $    
                               
                               

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DIPLOMAT PHARMACY, INC.

Unaudited Pro Forma Combined Consolidated Statement of Operations

For the Three Months Ended March 31, 2014

 
  Diplomat
Actual
  MedPro
Actual
  MedPro
Acquisition
Adjustments
  Subtotal   C
Corporation
Adjustments
  Capital
Stock
Transactions
  Offering
Transactions
  Pro Forma
Total
 
 
  (Dollars in Thousands, Except Per Share Amounts)
 

Net sales

  $ 465,677   $     $     $     $     $   $     $    

Cost of goods sold

    (436,168 )                                        
                                   

Gross profit

    29,509                                          

Selling, general and administrative expenses

    23,539             (P)                            

                  (Q)                              
                                   

Income from operations

    5,970                                          

Interest expense

    (530 )           (R)                     (X)      

Equity loss of non-consolidated entity

    (401 )                                        

Other income

    468                                          
                                   

Income before income taxes

    5,507                                          

Income tax expense

    (3,817 )           (S)           (U)         (Y)      
                                   

Net income / net comprehensive income

    1,690                                          

Net income allocable to preferred shareholders

    102                               (V)            
                                   

Net income allocable to common shareholders

  $ 1,588   $     $     $     $     $     $     $    
                                   
                                   

Net income per common share:

                                                 

Basic

  $ 384.38               $                       $    
                                             
                                             

Diluted

  $ 358.17               $                       $    
                                             
                                             

Weighted-average shares outstanding:

                                                 

Basic

    4,132           84 (T)               731 (W)     (Z)      
                                       
                                       

Diluted

    4,435           84 (T)               731 (W)     (Z)      
                                       
                                       

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DIPLOMAT PHARMACY, INC.

Unaudited Pro Forma Combined Consolidated Statement of Operations

For the Year Ended December 31, 2013

 
  Diplomat
Actual
  AHF
Actual
  MedPro
Actual
  Acquisition
Adjustments
  Subtotal   C Corporation
Adjustments
  Capital Stock
Transactions
  Offering
Transactions
  Pro Forma
Total
 
 
  (Dollars in Thousands, Except Per Share Amounts)
 

Net sales

  $ 1,515,139   $ 28,408   $     $     $     $     $   $     $    

Cost of goods sold

    (1,426,112 )   21,676                                          
                                       

Gross profit

    89,027     6,732                                          

Selling, general and administrative expenses

   
(77,944

)
 
5,216
         
(P)
             
             

                        (Q)                              
                                       

Income from operations

    11,083     1,516                                          

Interest expense

   
(1,996

)
 
(83

)
       
(R)
             
   
(X)
     

Equity loss of non-consolidated entity

    (1,055 )                                            

Other income

    196     19                                          
                                       

Income before income taxes

    8,228     1,452                                          

Income tax expense

                      (S)           (U)         (Y)      
                                       

Net income / net comprehensive income

    8,228     1,452                                          

Net income allocable to preferred shareholders

   
   
                           
(V)
           
                                       

Net income allocable to common shareholders

  $ 8,228   $ 1,452   $     $     $     $     $     $     $    
                                       
                                       

Net income per common share:

                                                       

Basic

  $ 1,924.70                     $                       $    
                                                   
                                                   

Diluted

  $ 1,885.45                     $                       $    
                                                   
                                                   

Weighted-average shares outstanding:

                                                       

Basic

    4,275                 84 (T)               731 (W)     (Z)      
                                             
                                             

Diluted

    4,364                 84 (T)               731 (W)     (Z)      
                                             
                                             

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DIPLOMAT PHARMACY, INC.

Notes to Unaudited Pro Forma Combined Consolidated Financial Information

(Thousands of Dollars)

1. Basis of Presentation

        The unaudited pro forma combined consolidated financial information presents our financial position and results of operations as if the transactions described in Note 2 occurred on the earlier of their actual transaction date or March 31, 2014 for purposes of the pro forma balance sheet and on January 1, 2013 for purposes of the pro forma statements of operations. Our and MedPro's actual unaudited balance sheets as of March 31, 2014 were used as the basis for the pro forma balance sheets. For the three months ended March 31, 2014, our and MedPro's actual unaudited operating results for that three month period were used as the basis for the pro forma statement of operations. For the year ended December 31, 2013, our and MedPro's actual operating results for that year and AHF's actual unaudited operating results from January 1, 2013 to its December 16, 2013 acquisition date were used as the basis for the pro forma statement of operations. The pro forma combined consolidated financial information also reflects the assumptions and adjustments described in Note 3.

2. Description of Transactions

        MedPro Acquisition:     On June 27, 2014, we acquired all of the authorized, issued and outstanding shares of capital stock of MedPro for $52,000 in cash, 84.31703 shares of the Company's Class B Nonvoting Common Stock, valued at approximately $12,000, which reflects the estimated per share value of such shares as of the acquisition date, and up to $11,500 of contingent consideration that is based on achieving certain revenue and gross profit targets through June 27, 2016. We funded the cash portion of the purchase price under our revolving line of credit. MedPro is a specialty pharmacy focused on specialty infusion therapies including hemophilia and immune globulin based in Raleigh, North Carolina.

        Because this acquisition was completed so recently, we have not finalized the purchase price allocation pending further analysis of the net assets acquired, particularly in regards to valuations of acquired intangible assets. Accordingly, the purchase price allocation described below could change materially as we finalize our assessment of the allocation and the fair values of the net tangible and intangible assets we acquired, some of which are dependent on the completion of valuations being performed by independent valuation specialists. Additionally, the current estimate of the fair value of the contingent consideration described above is based on preliminary assumptions regarding MedPro's operating results through June 27, 2016 and may be adjusted upon gathering additional information as to MedPro's forecast for that period.

        A summary of the preliminary allocation of the purchase consideration for MedPro is as follows:

Cash and cash equivalents

  $             

Accounts receivable, net

       

Inventories

       

Prepaid expenses and other current assets

       

Property and equipment

       

Goodwill

       

Definite-lived intangible assets

       

Current liabilities

       
       

  $             
       
       

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DIPLOMAT PHARMACY, INC.

Notes to Unaudited Pro Forma Combined Consolidated Financial Information (Continued)

(Thousands of Dollars)

2. Description of Transactions (Continued)

        AHF Acquisition:     On December 16, 2013, we acquired all of the authorized, issued and outstanding shares of capital stock of AHF for a total acquisition price of approximately $13,449, excluding related acquisition costs of approximately $662 that were expensed. Included in the total acquisition price is approximately $12,100 in cash and contingent consideration fair valued at $1,300, with a maximum payout of $2,000 of contingent consideration that is based on achieving certain revenue and gross profit targets through December 16, 2015. We funded the purchase price under our revolving line of credit. At the closing of the acquisition, approximately $1,353 of the purchase consideration was deposited into an escrow account that will be held for two years after the closing date to satisfy any indemnification claims we may have.

        AHF provides clotting medications, ancillaries and supplies to individuals with bleeding disorders, such as hemophilia. AHF has provided uninterrupted state-of-the-art services exclusively to the bleeding disorders community since 1989. The acquisition of AHF will allow us to participate in AHF's direct purchase agreements with key hemophilia manufacturers while also providing AHF access to our proprietary care management modules to better manage clinical care of the AHF patients. We ascribe significant value to the cost reductions as well as synergies and other benefits that do not meet the recognition criteria of acquired identifiable intangible assets. Accordingly, we have included the value of these components within goodwill. The goodwill resulting from this acquisition is not deductible for tax purposes.

        A summary of the preliminary allocation of the purchase consideration for AHF is as follows:

Cash and cash equivalents

  $ 1,917  

Accounts receivable, net

    3,512  

Inventories

    1,138  

Prepaid expenses and other current assets

    27  

Property and equipment

    158  

Goodwill

    1,537  

Definite-lived intangible assets

    7,100  

Current liabilities

    (1,940 )
       

  $ 13,449  
       
       

        Change in Income Tax Status:     We elected to be taxed as a C corporation effective on January 23, 2014.

        Capital Stock Transactions:     In January 2014, we entered into a Series A Preferred Stock Purchase Agreement with certain funds of T. Rowe Price under which we issued to certain funds of T. Rowe Price 351.32097 shares of Series A Preferred Stock at a purchase price of $142 per share. The Company used $20,000 of this $50,000 investment for general corporate purposes inclusive of fees associated with this transaction, and the remaining $30,000 was used to redeem common stock ($26,900) and common stock options ($3,100).

        In April 2014, we entered into a Series A Preferred Stock Purchase Agreement with certain funds of Janus under which we issued to certain funds of Janus 379.4267 shares of Series A Preferred Stock at a purchase price of $142 per share. We used $25,200 of the $54,000 investment for general corporate

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DIPLOMAT PHARMACY, INC.

Notes to Unaudited Pro Forma Combined Consolidated Financial Information (Continued)

(Thousands of Dollars)

2. Description of Transactions (Continued)

purposes inclusive of fees associated with this transaction, and the remaining $28,800 was used to redeem common stock ($26,500) and common stock options ($2,300).

        Immediately prior to the completion of this offering, all shares of our outstanding capital stock will convert into shares of the single class of common stock that will be authorized in conjunction with this offering. Outstanding shares of Series A Preferred Stock will convert on a one-to-      basis; outstanding shares of Class A Voting Common Stock will convert on a one-to-      basis; and, outstanding shares of Class B Nonvoting Common Stock will convert on a one-to-      basis.

        Initial Public Offering:     At an assumed initial offering price of $      per share (the midpoint of the estimated price range set forth on the cover of this prospectus), and after deducting the underwriting discount and estimated offering expenses payable by us, we will receive net proceeds of $        in this offering. A portion of these net proceeds will be used to retire currently outstanding debt.

3. Unaudited Pro Forma Combined Consolidated Balance Sheet Adjustments

MedPro Acquisition Adjustments:

A     Reflects borrowings of $            under our revolving line of credit to fund the MedPro acquisition, less the payment of $        for the cash portion of the purchase price and $            of related transaction costs incurred after March 31, 2014.

B

 


 

Reflects the establishment of deferred income taxes related to MedPro's acquired net assets at our blended income tax rate of 38%.

C

 


 

Reflects goodwill that is the residual of the aggregate purchase price paid for the MedPro acquisition over the estimated fair value of its identifiable assets as of March 31, 2014. Actual goodwill, which is expected to be tax deductible, will be based on the aggregate purchase price over the net identifiable assets as of the actual June 27, 2014 acquisition date, and as such, may be significantly different.

D

 


 

Reflects the valuation of identifiable intangible assets acquired in the MedPro acquisition. These assets include            ,             and            which have estimated useful lives of     years,      years and     years, respectively. These pro forma adjustments are preliminary and may significantly change as we finalize our assessment of these assets and their respective lives.

E

 


 

Reflects incremental borrowings under our revolving line of credit to partially fund the MedPro acquisition and related transaction costs incurred after March 31, 2014.

F

 


 

Reflects the estimated fair value of the contingent consideration payable to the sellers of MedPro subject to MedPro achieving certain revenue and gross profit targets through June 27, 2016. This estimate reflects current assumptions as to how much of the up to $11,500 of contingent consideration will be earned, when it will be paid and a discount rate of        %. Differences between the actual revenue and gross profit results through June 27, 2016 and the assumptions used in this estimate will result in charges of credits to our income before income taxes.

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DIPLOMAT PHARMACY, INC.

Notes to Unaudited Pro Forma Combined Consolidated Financial Information (Continued)

(Thousands of Dollars)

3. Unaudited Pro Forma Combined Consolidated Balance Sheet Adjustments (Continued)

G     Reflects the 84.31703 shares of Class B Nonvoting Common Stock issued to the sellers of MedPro as partial payment of the aggregate purchase price valued at $12,000 was based primarily on recent significant investments by sophisticated, institutional investors of our preferred stock.

H

 


 

Reflects the after-tax impact of MedPro acquisition costs expected to be incurred after March 31, 2014.

Capital Stock Transactions:

I     Reflects $54,000 of cash proceeds from the April 2014 issuance of preferred stock to Janus, net of $695 of cash used to pay related transaction costs and $28,800 of cash used to redeem certain common stock and common stock options.

J

 


 

Reflects $54,000 of cash proceeds from the April 2014 issuance of preferred stock to Janus, net of $695 of related transaction costs offset by the conversion of all outstanding shares of preferred stock into common stock ($101,932).

K

 


 

Reflects the conversion of all outstanding shares of Class A Voting and Class B Nonvoting stock into common stock authorized in connection with this offering.

L

 


 

Reflects conversion of all outstanding shares of (1) preferred stock net of offering costs ($101,932) and (2) Class A Voting and Class B Nonvoting stock ($4), offset by the redemption of certain common stock and common stock options ($28,800).

Offering Transactions:

M     Reflects $        of net cash proceeds from this offering at an assumed initial offering price of $        per share (the midpoint of the estimated price on the cover of this prospectus), after deducting the underwriting discount and estimated offering costs payable by us and the use of $        of those net proceeds to retire outstanding indebtedness.

N

 


 

Reflects the retirement of all outstanding debt with a portion of the net proceeds from this offering, including debt incurred in connection with the MedPro acquisition.

O

 


 

Reflects the net proceeds from this offering at an assumed initial offering price of $        per share (the midpoint of the estimated price on the cover of this prospectus), after deducting the underwriting discount and estimated offering costs payable by us.

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DIPLOMAT PHARMACY, INC.

Notes to Unaudited Pro Forma Combined Consolidated Financial Information (Continued)

(Thousands of Dollars)

4. Unaudited Pro Forma Combined Consolidated Statements of Operations Adjustments

Acquisition Adjustments:

P     Reflects amortization of the identifiable definite-lived intangible assets acquired in the AHF acquisition, including patient relationships with an estimated ten year life, trade names and trademarks with an estimated ten year life and non-compete employment agreements with an estimated five year life ($903 for the year ended December 31, 2013). Also reflects amortization of identifiable definite-lived intangible assets acquired in the MedPro acquisition, including        with an estimated      life,            with an estimated     year life and            , with an estimated     year life ($      for the three months ended March 31, 2014 and $    for the year ended December 31, 2013). The following table presents the definite-lived intangible assets acquired:

 
  AHF   MedPro  

Patient relationships

  $ 5,100   $    

Trade names and trademarks

    1,400        

Non-compete employment agreements

    600        
             

  $ 7,100        
             
             

Q     Reflects the elimination from actual results of the transaction costs incurred during the period for the AHF acquisition ($662 for the year ended December 31, 2013) and the MedPro acquisition ($      for the three months ended March 31, 2014). These transaction costs are eliminated from the pro forma results as they do not represent recurring expenses.

R

 


 

Reflects interest expense on incremental borrowings at a 3.5% annual rate under our revolving line of credit to fund the cash portion of the AHF acquisition ($406 for the year ended December 31, 2013). Also reflects interest expense on incremental borrowings at a 3.5% annual rate under our revolving line of credit to fund the cash portion of the MedPro acquisition ($      for the three months ended March 31, 2014 and $      for the year ended December 31, 2013).

S

 


 

Reflects income taxes associated with a) the operating results of AHF ($      for the year ended December 31, 2013), b) the operating results of MedPro ($      for the three months ended March 31, 2014 and $      for the year ended December 31, 2013) and c) the pro forma adjustments ($      for the three months ended March 31, 2014 and $      for the year ended December 31, 2013), at our estimated effective income tax rate of    %.

T

 


 

Reflects the 81.31703 shares of Class B Nonvoting Common Stock issued to the sellers of MedPro as partial payment of the aggregate purchase price.

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DIPLOMAT PHARMACY, INC.

Notes to Unaudited Pro Forma Combined Consolidated Financial Information (Continued)

(Thousands of Dollars)

4. Unaudited Pro Forma Combined Consolidated Statements of Operations Adjustments (Continued)

C Corporation Adjustments:

U     Reflects our income tax expense as if we (combined with MedPro and AHF, as applicable) had been a C corporation for the entire period. For purposes of these adjustments, we used a      % income effective income tax rate based on the actual effective tax rate for the period from January 23, 2014 through March 31, 2014.

Capital Stock Transactions:

V     Reflects the impact of all preferred stock being outstanding for the entire period offset by the elimination of any net income attributable to preferred shareholders due to the assumed conversion of all outstanding shares of preferred stock into common stock.

W

 


 

Reflects the additional shares of common stock resulting from the assumed conversion of all shares of preferred stock (            shares) offset by the reduction of common stock and common stock options caused by their redemption with certain proceeds from the preferred stock offerings (            shares).

Offering Transactions:

X     Reflects the elimination of all historical and pro forma interest expense due to the retirement of all outstanding debt, including debt incurred in the MedPro acquisition, with certain net proceeds from this offering.

Y

 


 

Reflects the income tax impact from eliminating all historical and pro forma interest expense.

Z

 


 

Reflects the shares assumed to be issued in this offering.

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GRAPHIC


Table of Contents


PART II

INFORMATION NOT REQUIRED IN PROSPECTUS

Item 13.    Other Expenses of Issuance and Distribution

        The following table sets forth the fees and expenses, other than underwriting discounts and commissions, payable by us in connection with the offering of our common stock described in this Registration Statement. All amounts shown are estimates other than the registration fee and the FINRA filing fee.

 
  Amount To
Be Paid
 

SEC registration fee

  $ 12,880  

FINRA filing fee

    15,500  

Exchange listing fee

    *  

Transfer agent's fees

    *  

Printing and engraving expenses

    *  

Legal fees and expenses

    *  

Accounting fees and expenses

    *  

Blue Sky fees and expenses

    *  

Miscellaneous

    *  
       

Total

  $ *  
       
       

*
To be provided by amendment.

Item 14.    Indemnification of Directors and Officers.

        We are incorporated under the laws of the State of Michigan. Under Sections 561-571 of the Michigan Business Corporation Act (as it may be amended from time to time, the "MBCA"), directors and officers of a Michigan corporation may be entitled to indemnification by the corporation against judgments, expenses, fines and amounts paid by the director or officer in settlement of claims brought against them by third persons or by or in the right of the corporation if the statutory standard (defined below) is met. In particular, Section 561 of the MBCA provides that a Michigan corporation has the power to indemnify a person who was or is a party or is threatened to be made a party to a threatened, pending, or completed action, suit, or proceeding, whether civil, criminal, administrative, or investigative and whether formal or informal, other than an action by or in the right of the corporation, by reason of the fact that he or she is or was a director, officer, employee, or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, partner, trustee, employee, or agent of another foreign or domestic corporation, partnership, joint venture, trust, or other enterprise, whether for profit or not, against expenses, including attorneys' fees, judgments, penalties, fines, and amounts paid in settlement actually and reasonably incurred by him or her in connection with the action, suit, or proceeding (provided that generally the director did not (i) receive a financial benefit to which he was not entitled, (ii) intentionally inflict harm on the corporation or its shareholders, (iii) violate Section 551 of the MBCA relating to loans, dividends and distributions, or (iv) intentionally commit a criminal act, collectively, the "statutory standard"), and with respect to a criminal action or proceeding, if the person had no reasonable cause to believe his or her conduct was unlawful. In addition, Section 562 of the MBCA provides that a Michigan corporation has the power to indemnify a person who was or is a party or is threatened to be made a party to a threatened, pending, or completed action or suit by or in the right of the corporation to procure a judgment in its favor by reason of the fact that he or she is or was a director, officer, employee, or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, partner, trustee, employee, or

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agent of another foreign or domestic corporation, partnership, joint venture, trust, or other enterprise, whether for profit or not, against expenses, including attorneys' fees, and amounts paid in settlement actually and reasonably incurred by the person in connection with the action or suit if the statutory standard is met. The MBCA does not permit indemnification for a claim, issue or matter in which the person has been found liable to the corporation unless application for indemnification is made to, and ordered by, the court conducting the proceeding or another court of competent jurisdiction.

        Section 563 of the MBCA provides that a director or officer who has been successful on the merits or otherwise in defense of an action, suit or proceeding referred to in Sections 561 and 562 of the MBCA, or in defense of a claim, issue, or matter in any such action, suit, or proceeding, shall be indemnified by the corporation against actual and reasonable expenses, including attorneys' fees, incurred by him or her in connection with the action, suit or proceeding, and any action, suit, or proceeding brought to enforce this mandatory indemnification.

        As permitted by the MBCA, in connection with this offering, we will enter into separate indemnification agreements with our directors and executive officers. Such agreements will generally provide for indemnification by reason of being a director or executive officer of the company, as the case may be. These agreements will be in addition to the indemnification provided by our amended and restated bylaws discussed elsewhere in the prospectus.

        At present, there is no pending litigation or proceeding involving any of our directors or executive officers as to which indemnification is required or permitted, and we are not aware of any threatened litigation or proceeding that may result in a claim for indemnification.

        As of the offering, we will have an insurance policy covering our officers and directors with respect to certain liabilities, including liabilities arising under the Securities Act or otherwise.

        The underwriting agreement filed as Exhibit 1.1 to this registration statement will provide for indemnification by the underwriters of us and our officers and directors for certain liabilities arising under the Securities Act or otherwise.

        The foregoing statements are subject to the detailed provisions of the MBCA, as well as the following documents filed (or to be filed) as exhibits to this registration statement with respect to relevant indemnification provisions described above and elsewhere in this registration statement:

Exhibit
Number
  Description
  1.1   Form of Underwriting Agreement

 

3.2

 

Form of Amended and Restated Bylaws, to be in effect upon completion of this offering

 

10.6

 

Form of Director and Officer Indemnification Agreement

Item 15.    Recent Sales of Unregistered Securities.

        In the three years preceding the filing of this Registration Statement, the Registrant has issued and sold the following unregistered securities:

        We granted stock options to purchase 461.72 shares of our common stock to our employees, directors and consultants at a weighted-average exercise price of $62,647 per share under our 2007 Option Plan and pursuant to certain non-plan options.

        The issuance of securities described above was exempt from registration under the Securities Act of 1933, as amended (the "Securities Act"), in reliance on Rule 701 of the Securities Act pursuant to compensatory benefit plans approved by the Registrant's board of directors.

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        On January 23, 2014, we sold to certain funds of T. Rowe Price, 351.32097 shares of Series A Preferred stock at a purchase price of $142,320 per share. We used $20.0 million of the $50.0 million investment proceeds for general corporate purposes, including fees associated with the transaction, and the remaining $30.0 million were used to redeem shares of common stock and common stock options.

        On April 1, 2014, we sold to certain funds of Janus Capital Group, 379.4267 shares of Series A Preferred stock at a purchase price of $142,320 per share. We used $25.2 million of the $54.0 million investment proceeds for general corporate purposes, including fees associated with the transaction, and the remaining $28.8 million were used to redeem shares of common stock and common stock options.

        On June 27, 2014 we issued 84.31703 shares of our Class B Nonvoting Common Stock, valued at approximately $12.0 million, to certain former stockholders of MedPro in connection with our acquisition of MedPro.

        The issuances of stock to TRP, Janus, and MedPro described above were exempt from the Securities Act in reliance on Section 4(a)(2) of the Securities Act exempting transactions by an issuer not involving any public offering.

Item 16.    Exhibits and Financial Statement Schedules.

        (a)   The following exhibits are filed as part of this Registration Statement:

Exhibit Number   Description
  1.1 * Form of Underwriting Agreement

 

2.1

**

Stock Purchase Agreement, dated December 16, 2013, by and among Diplomat Pharmacy, Inc., American Homecare Federation, Inc., and the other parties named therein

 

2.2

**

Stock Purchase Agreement, dated June 27, 2014, by and among Diplomat Pharmacy, Inc., MedPro RX, Inc., and the other parties named therein

 

3.1

*

Form of Amended and Restated Articles of Incorporation, to be in effect upon completion of this offering

 

3.2

*

Form of Amended and Restated Bylaws, to be in effect upon completion of this offering

 

3.3

 

Second Amended and Restated Articles of Incorporation of Diplomat Pharmacy, Inc., as currently in effect

 

3.4

 

Amended Bylaws of Diplomat Pharmacy, Inc., as currently in effect

 

4.1

*

Form of Common Stock Certificate

 

4.2

 

Diplomat Pharmacy, Inc. First Amended and Restated Investors' Rights Agreement, dated March 31, 2014, by and among the Registrant and various funds of T. Rowe Price Associates, Inc. and Janus Capital Management, LLC

 

5.1

*

Opinion of Honigman Miller Schwartz and Cohn LLP

 

10.1

 

Amended and Restated Credit Agreement, dated June 26, 2014, by and among the Registrant, each guarantor named therein, and General Electric Capital Corporation, as swingline lender and agent, and the various lenders and agents on the signature pages thereto

 

10.2

 

Amended and Restated Guaranty and Security Agreement, dated June 26, 2014, by and among the Registrant, each additional borrower named therein, and General Electric Capital Corporation, as agent

 

10.3

†*

Form of Director and Officer Indemnification Agreement

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Exhibit Number   Description
  10.4 Diplomat Pharmacy, Inc. 2007 Option Plan

 

10.5


Form of Amended and Restated 2007 Option Plan Grant Agreement

 

10.6

†*

Form of 2007 Option Plan Grant (Performance-Based) Agreement

 

10.7

†*

Diplomat Pharmacy, Inc. 2014 Omnibus Incentive Plan

 

10.8

*

Shareholders Agreement by and among Philip Hagerman and the entities on the signature pages thereto

 

21.1

 

Subsidiaries of the Registrant

 

23.1

 

Consent of BDO USA LLP

 

23.2

 

Consent of Plante Moran PLLC

 

23.3

*

Consent of Honigman Miller Schwartz and Cohn LLP (contained in the opinion filed as Exhibit 5.1)

 

24.1

 

Power of Attorney (included on signature page)

*
To be filed by amendment.

**
Exhibits and schedules have been omitted in accordance with Item 601(b)(2) of Regulation S-K. A copy of omitted exhibits and schedules will be furnished to the Commission upon request.

Indicates a management contract or compensatory plan or arrangement.

        (b)   No financial statement schedules are provided because the information called for is not required or is shown either in the financial statements or the notes thereto.

Item 17.    Undertakings

        The undersigned registrant hereby undertakes to provide to the underwriter at the closing specified in the underwriting agreement certificates in such denominations and registered in such names as required by the underwriter to permit prompt delivery to each purchaser.

        Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue.

        The undersigned registrant hereby undertakes that:

            (1)   For purposes of determining any liability under the Securities Act, the information omitted from the form of prospectus filed as part of this registration statement in reliance upon Rule 430A and contained in a form of prospectus filed by the registrant pursuant to Rule 424(b) (1) or (4) or 497(h) under the Securities Act shall be deemed to be part of this registration statement as of the time it was declared effective.

            (2)   For the purpose of determining any liability under the Securities Act, each post-effective amendment that contains a form of prospectus shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.

II-4


Table of Contents


SIGNATURES

        Pursuant to the requirements of the Securities Act of 1933, the registrant has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized in the City of Flint, State of Michigan, on July 2, 2014.

    DIPLOMAT PHARMACY, INC.

 

 

By:

 

/s/ PHILIP R. HAGERMAN

        Name:   Philip R. Hagerman
        Title:   Chief Executive Officer


POWER OF ATTORNEY

        KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Philip R. Hagerman and Sean M. Whelan, each his true and lawful attorney-in-fact and agent with full power of substitution, for him and in his name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this registration statement, and to sign any registration statement for the same offering covered by the registration statement that is to be effective upon filing pursuant to Rule 462(b) promulgated under the Securities Act of 1933, as amended, and all post-effective amendments thereto, and to file the same, with all exhibits thereto and all documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorney-in-fact and agent, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming that all said attorneys-in-fact and agents or any of them, or his or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof.

        Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons in the capacities and on the dates indicated:

Signature
 
Title
 
Date

 

 

 

 

 
/s/ PHILIP R. HAGERMAN

Philip R. Hagerman
  Chief Executive Officer and Director (principal executive officer)   July 2, 2014

/s/ SEAN M. WHELAN

Sean M. Whelan

 

Chief Financial Officer, Director (principal financial officer and principal accounting officer)

 

July 2, 2014

/s/ GARY W. KADLEC

Gary W. Kadlec

 

President, Director

 

July 2, 2014

/s/ JEFFREY M. ROWE

Jeffrey M. Rowe

 

Executive Vice President, Operations, Director

 

July 2, 2014

/s/ ATHEER A. KADDIS

Atheer A. Kaddis

 

Senior Vice President, Sales & Business Development, Director

 

July 2, 2014

II-5


Table of Contents


EXHIBIT INDEX

Exhibit Number   Description
  1.1 * Form of Underwriting Agreement

 

2.1

**

Stock Purchase Agreement, dated December 16, 2013, by and among Diplomat Pharmacy, Inc., American Homecare Federation, Inc., and the other parties named therein

 

2.2

**

Stock Purchase Agreement, dated June 27, 2014, by and among Diplomat Pharmacy, Inc., MedPro RX, Inc., and the other parties named therein

 

3.1

*

Form of Amended and Restated Articles of Incorporation, to be in effect upon completion of this offering

 

3.2

*

Form of Amended and Restated Bylaws, to be in effect upon completion of this offering

 

3.3

 

Second Amended and Restated Articles of Incorporation of Diplomat Pharmacy, Inc., as currently in effect

 

3.4

 

Amended Bylaws of Diplomat Pharmacy, Inc., as currently in effect

 

4.1

*

Form of Common Stock Certificate

 

4.2

 

Diplomat Pharmacy, Inc. First Amended and Restated Investors' Rights Agreement, dated March 31, 2014, by and among the Registrant and various funds of T. Rowe Price Associates, Inc. and Janus Capital Management, LLC

 

5.1

*

Opinion of Honigman Miller Schwartz and Cohn LLP

 

10.1

 

Amended and Restated Credit Agreement, dated June 26, 2014, by and among the Registrant, each guarantor named therein, and General Electric Capital Corporation, as swingline lender and agent, and the various lenders and agents on the signature pages thereto

 

10.2

 

Amended and Restated Guaranty and Security Agreement, dated June 26, 2014, by and among the Registrant, each additional borrower named therein, and General Electric Capital Corporation, as agent

 

10.3

†*

Form of Director and Officer Indemnification Agreement

 

10.4


Diplomat Pharmacy, Inc. 2007 Option Plan

 

10.5


Form of Amended and Restated 2007 Option Plan Grant Agreement

 

10.6

†*

Form of 2007 Option Plan Grant (Performance-Based) Agreement

 

10.7

†*

Diplomat Pharmacy, Inc. 2014 Omnibus Incentive Plan

 

10.8

*

Shareholders Agreement by and among Philip Hagerman and the entities on the signature pages thereto

 

21.1

 

Subsidiaries of the Registrant

 

23.1

 

Consent of BDO USA LLP

 

23.2

 

Consent of Plante Moran PLLC

 

23.3

*

Consent of Honigman Miller Schwartz and Cohn LLP (contained in the opinion filed as Exhibit 5.1)

 

24.1

 

Power of Attorney (included on signature page)

*
To be filed by amendment.

**
Exhibits and schedules have been omitted in accordance with Item 601(b)(2) of Regulation S-K. A copy of omitted exhibits and schedules will be furnished to the Commission upon request.

Indicates a management contract or compensatory plan or arrangement.

II-6




Exhibit 2.1

 

EXECUTION VERSION

 

 

 

STOCK PURCHASE AGREEMENT

 

by and among

 

DIPLOMAT PHARMACY, INC.,

 

AMERICAN HOMECARE FEDERATION, INC.,

 

AND

 

THE OTHER PARTIES NAMED HEREIN

 

December 16, 2013

 

 



 

TABLE OF CONTENTS

 

STOCK PURCHASE AGREEMENT

1

 

 

ARTICLE I. PURCHASE AND SALE

1

1.01

Purchase and Sale of the Shares

1

1.02

Purchase Price

1

1.03

Post-Closing Purchase Price Adjustment

2

1.04

Contingent Payments

3

1.05

Tax Withholding

9

 

 

 

ARTICLE II. CLOSING

9

2.01

Closing

9

2.02

Closing Deliveries

9

 

 

 

ARTICLE III. REPRESENTATIONS AND WARRANTIES REGARDING THE STOCKHOLDERS

11

3.01

Organization and Authority

11

3.02

Absence of Conflicts

12

3.03

Ownership of the Shares

12

3.04

Stockholders’ Broker

12

3.05

Litigation

13

3.06

Disclosure

13

 

 

 

ARTICLE IV. REPRESENTATIONS AND WARRANTIES REGARDING COMPANY

13

4.01

Organization and Power

13

4.02

Authorization

13

4.03

Capitalization; Subsidiaries

14

4.04

Absence of Conflicts

14

4.05

Financial Statements

15

4.06

Certain Developments

15

4.07

Real Property

17

4.08

Tax Matters

18

4.09

Contracts and Commitments

21

4.10

Proprietary Rights

23

4.11

Systems

26

4.12

Governmental Licenses and Permits

26

4.13

Employees

26

4.14

Immigration Matters

27

4.15

Employee Benefit Plans

28

4.16

Medicare and Medicaid Participation

30

4.17

Compliance Program

30

4.18

HIPAA Compliance

31

4.19

Compliance with Laws

31

4.20

Affiliate Transactions

32

4.21

Environmental Matters

32

 

i



 

4.22

Tangible Assets

33

4.23

Undisclosed Liabilities

34

4.24

Notes and Accounts Receivable

34

4.25

Powers of Attorney

34

4.26

Insurance

34

4.27

Service Liability Claims

35

4.28

Customers

35

4.29

Suppliers

35

4.30

Officers and Directors

36

4.31

Bank Accounts

36

4.32

Litigation

36

4.33

Books and Records

36

4.34

Company Broker

36

4.35

Disclosure

37

 

 

 

ARTICLE V. REPRESENTATIONS AND WARRANTIES OF BUYER

37

5.01

Organization and Power

37

5.02

Authorization

37

5.03

Absence of Conflicts

37

5.04

Buyer’s Broker

38

5.05

Availability of Funds

38

 

 

 

ARTICLE VI. CONDITIONS TO CLOSING

38

6.01

Conditions to Obligations of All Parties

38

6.02

Conditions to Obligations of Buyer

38

6.03

Conditions to Obligations of Stockholders

39

 

 

 

ARTICLE VII. COVENANTS

40

7.01

Conduct of Business Prior to the Closing

40

7.02

Access to Information

41

7.03

No Solicitation of Other Bids

41

7.04

Notice of Certain Events

42

7.05

Governmental Approvals and Consents

43

7.06

Press Releases and Announcements

44

7.07

Closing Conditions

44

7.08

Further Transfers

44

7.09

Non-Solicitation, Non-Competition and Confidentiality

44

7.10

Customer and Other Business Relationships

46

7.11

Stockholders’ Release

46

 

 

 

ARTICLE VIII. TAX MATTERS

47

8.01

Tax Matters

47

8.02

Treatment of Indemnification Payments

51

8.03

Other Rights and Remedies Not Affected

51

8.04

Overlap

51

 

 

 

ARTICLE IX. INDEMNIFICATION

51

 

ii



 

9.01

Survival

51

9.02

Indemnification by the Majority Stockholders

52

9.03

Indemnification by Buyer

53

9.04

Time Limitations

53

9.05

Indemnification Procedures for Third Party Claims

53

9.06

Indemnification Procedures for Non-Third Party Claims

56

9.07

Contingent Claims

57

9.08

Company Indemnification

57

 

 

 

ARTICLE X. TERMINATION

57

10.01

Termination

57

10.02

Effect of Termination

58

 

 

 

ARTICLE XI. SELLERS’ REPRESENTATIVE

58

11.01

Designation

58

11.02

Authority; Successor

58

 

 

 

ARTICLE XII. DEFINITIONS

60

12.01

Definitions

60

12.02

Interpretation

69

 

 

 

ARTICLE XIII. MISCELLANEOUS

70

13.01

Amendment and Waiver

70

13.02

Notices

71

13.03

Expenses

72

13.04

Assignment and Successors

72

13.05

No Waiver

73

13.06

Severability

73

13.07

Further Assurances

73

13.08

Entire Agreement

73

13.09

No Referrals

73

13.10

Remedies Cumulative

74

13.11

Counterparts; Electronic Signatures

74

13.12

Governing Law

74

13.13

Consent to Jurisdiction

74

13.14

No Third Party Beneficiaries

75

13.15

Schedules

75

 

iii



 

EXHIBITS

 

Exhibit A

-

Escrow Agreement

Exhibit B

-

Employment Agreement

Exhibit C

-

Transition Agreement

Exhibit D

-

Amended and Restated Lease

 

SCHEDULES

 

Schedule 1.03(d)

-

Pro Rata Share

Schedule 1.04(h)(iv)

-

Out-of-Network Clients

Schedule 2.02(b)(iv)

-

Affiliate Contracts

Schedule 3.04

-

Stockholders’ Broker

Schedule 4.01

-

Organization and Power

Schedule 4.03(a)

-

Capitalization

Schedule 4.04

-

Absence of Conflicts

Schedule 4.05

-

Financial Statements

Schedule 4.06

-

Certain Developments

Schedule 4.07(a)

-

Leased Properties

Schedule 4.07(c)

-

Other Real Property

Schedule 4.08

-

Tax Matters

Schedule 4.09(a)

-

Contracts and Commitments

Schedule 4.10(a)

-

Proprietary Rights

Schedule 4.10(b)

-

Ownership; Infringement

Schedule 4.11(a)

-

Computer & Telephone Systems

Schedule 4.11(b)

-

Systems; Exceptions

Schedule 4.12

-

Governmental Licenses and Permits

Schedule 4.13(a)

-

Terminated Employees

Schedule 4.13(b)

-

Employee Agreements

Schedule 4.13(c)

-

Labor Agreements

Schedule 4.13(d)

-

Severance, Termination, and Other Obligation

Schedule 4.13(e)

-

Employee List and Compensation

Schedule 4.14

-

Immigration Matters

Schedule 4.15(a)

-

Employee Benefit Plans

Schedule 4.16

-

Provider Numbers

Schedule 4.17(b)

-

Excluded Persons

Schedule 4.19

-

Compliance with Laws

Schedule 4.20

-

Affiliate Transactions

Schedule 4.21

-

Environmental Matters

Schedule 4.22(a)

-

Tangible Assets

Schedule 4.25

-

Powers of Attorney

Schedule 4.26

-

Insurance

Schedule 4.27(a)

-

Service Liability Claims

Schedule 4.27(b)

-

Product Warranties and Representations

Schedule 4.27(c)

-

Material Conformity with Express and Implied Warranties

 

iv



 

Schedule 4.27(d)

-

Standard Terms and Conditions

Schedule 4.28(a)

-

Customers

Schedule 4.28(b)

-

Significant Changes to Customers

Schedule 4.29(a)

-

Suppliers

Schedule 4.29(b)

-

Significant Changes to Suppliers

Schedule 4.30

-

Officers and Directors

Schedule 4.31

-

Bank Accounts and Authorized Signatories

Schedule 4.32

-

Litigation

Schedule 4.34

-

Company Broker

Schedule 8.01(d)

-

Estimated Purchase Price Allocation

Schedule 9.02(a)(iv)

-

Indemnification Schedule

 

v


 

STOCK PURCHASE AGREEMENT

 

This Stock Purchase Agreement (this “ Agreement ”) is entered into as of December 16, 2013, by and among Diplomat Pharmacy, Inc., a Michigan corporation (“ Buyer ”), American Homecare Federation, Inc., a Connecticut corporation (the “ Company ”) and the stockholders of the Company that are signatories to this Agreement (each, a “ Stockholder ” and collectively, the “ Stockholders ”).  The Minority Stockholders are parties to this Agreement solely with respect to ARTICLE I , Sections   2.02(b)(ix) , 3.01 , 3.03 , 7.09 , 7.11 , 8.01(c) , 8.01(d) , 8.01(h) , 8.01(i) , 11.01 , 11.02 , ARTICLE XII and ARTICLE XIII .  Capitalized terms used and not otherwise defined in this Agreement have the meanings set forth in ARTICLE XII .

 

RECITALS

 

WHEREAS, the Stockholders together own all of the issued and outstanding common stock of the Company; and

 

WHEREAS, each Stockholder desires to sell to Buyer, and Buyer desires to purchase from each Stockholder, all of the issued and outstanding shares of capital stock of the Company owned by such Stockholder (collectively, the “ Shares ”) for the consideration and subject to the terms and conditions of this Agreement.

 

NOW, THEREFORE, in consideration of the premises, representations and warranties and mutual covenants contained herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto, intending to be legally bound, hereby agree as follows:

 

ARTICLE I.

PURCHASE AND SALE

 

1.01                         Purchase and Sale of the Shares.

 

Subject to the terms and conditions of this Agreement, and in reliance upon the representations, warranties, and covenants contained in this Agreement, at the Closing, Buyer shall purchase all of the Shares from the Stockholders, and the Stockholders shall sell, transfer, and convey the Shares to Buyer, free and clear of any Liens.

 

1.02                         Purchase Price.

 

(a)                                  The aggregate purchase price for the Shares is (subject to adjustment pursuant to Section 1.03 ) equal to the following: (i) Eleven Million Five Hundred Thousand Dollars ($11,500,000), plus (or minus if such number is negative) (ii) the Net Working Capital Adjustment Amount (if applicable), minus (iii) the Closing Indebtedness, minus (iv) the Sellers’ Expenses plus (v) the Excess Cash on Hand Adjustment Amount (the sum of (i) through (v) above is referred to herein as the “ Closing Cash Purchase Price ”), plus (vi) the Contingent Payments, if any, payable to the Stockholders pursuant to Section 1.04 (together with the Closing Cash Purchase Price, the “ Purchase Price ”).

 



 

(b)                                  On or before the Closing Date, Buyer and Sellers’ Representative shall agree on a good faith estimate of the Closing Cash Purchase Price (with such amount being referred to herein as the “ Estimated Closing Purchase Price ”).

 

(c)                                   The Closing Cash Purchase Price shall be paid by Buyer to the Stockholders at the Closing in accordance with Section 2.02(a) .

 

1.03                         Post-Closing Purchase Price Adjustment.

 

(a)                                  Within 60 days following the Closing Date, Buyer shall prepare and deliver to Sellers’ Representative a statement of the Excess Cash on Hand Adjustment Amount (if any), the Net Working Capital Adjustment Amount (if any), the Closing Indebtedness, and the Sellers’ Expenses, in each case as of the Closing Date and prepared in accordance with GAAP along with Buyer’s calculation of the resulting Closing Cash Purchase Price (the “ Closing Statement ”).  Sellers’ Representative shall have a period (the “ Review Period ”) of 30 days from the delivery of the Closing Statement to review such statement.  Upon execution of such access letters as may be reasonably required by Buyer, Buyer shall provide Sellers’ Representative and its representatives with reasonable access to all records and work papers necessary to compute and verify the Closing Statement.  If, as a result of such review, Sellers’ Representative disagrees with the Closing Statement, Sellers’ Representative shall deliver to Buyer a written notice of disagreement (a “ Dispute Notice ”) prior to the expiration of the Review Period setting forth in full detail the basis for such dispute, the specific items and amounts in dispute and Sellers’ Representative’s alternative calculation of the Closing Statement (including the alternative calculations of each disputed line item).  The Closing Cash Purchase Price, as finally determined pursuant to this Section 1.03 , shall be referred to as the “ Final Closing Cash Purchase Price .”

 

(b)                                  If Sellers’ Representative either (i) fails to deliver a Dispute Notice to Buyer prior to the expiration of the Review Period, or (ii) delivers a written notice to Buyer accepting the Closing Statement, then, in either case, the amount of the Closing Cash Purchase Price reflected by or contained in the Closing Statement shall be the Final Closing Cash Purchase Price and shall be final, binding and conclusive upon the parties.

 

(c)                                   If Sellers’ Representative delivers a Dispute Notice to Buyer in a timely manner, then Sellers’ Representative and Buyer shall attempt in good faith to resolve such dispute within 30 days from the delivery of such Dispute Notice.  If Sellers’ Representative and Buyer cannot reach agreement within such 30 day period, then the dispute shall be promptly referred to a nationally recognized certified public accounting firm jointly selected by Buyer and Sellers’ Representative, which shall initially be Ernst & Young LLP (the “ Neutral Accountant ”).  Each party shall thereupon furnish to the Neutral Accountant such reasonable work papers and other documents and information relating to the calculation of the Closing Statement as that party desires or as the Neutral Accountant requests, and each party will be afforded the opportunity to present information to the Neutral Accountant and to discuss the determination of the Closing Statement with the Neutral Accountant.  The Neutral Accountant shall only resolve such contested items that were properly included by Sellers’ Representative in a timely Dispute Notice and will resolve such items as promptly as may be reasonably practicable.  Following such review, the Neutral Accountant shall deliver a written opinion setting forth its final determination of the Final Closing Cash Purchase Price, which shall be final, binding and

 

2



 

conclusive on the Stockholders and Buyer and shall be used in computing the amount of any adjustment pursuant to this Section 1.03 .  All fees and expenses of the Neutral Accountant shall be borne by the party whose estimate of the Purchase Price as submitted to the Neutral Accountant is farthest from the Final Closing Cash Purchase Price as finally determined by the Neutral Accountant.

 

(d)                                  If the Final Closing Cash Purchase Price exceeds the Estimated Closing Purchase Price, then Buyer shall, within seven Business Days of the determination date, pay to Sellers’ Representative (which Sellers’ Representative shall deliver to the Stockholders in accordance with their pro rata share consistent with each Stockholder’s relative ownership of the Shares as set forth on Schedule 1.03(d) (such allocation percentage is referred to herein as each Stockholder’s “ Pro Rata Share ”)) such difference by wire transfer of immediately available funds to an account designated by Sellers’ Representative in writing (or in the absence of any such designation, by corporate check mailed to Sellers’ Representative).

 

(e)                                   If the Estimated Closing Purchase Price exceeds the Final Closing Cash Purchase Price, then the Stockholders shall (and Sellers’ Representative shall cause the Stockholders to), within seven Business Days of the determination date, pay Buyer such difference by wire transfer of immediately available funds to an account designated by Buyer in writing (or in the absence of any such designation, by corporate check mailed to Buyer).  If the Stockholders fail to make such a payment, then Buyer shall be entitled to receive funds in an amount equal to such payment from the escrow account by providing notice to the Escrow Agent in accordance with the terms of the Escrow Agreement.

 

(f)                                    Any payments made pursuant to Section 1.03 shall be treated as an adjustment to the Closing Cash Purchase Price by the parties for Tax purposes, unless otherwise required by Law.

 

1.04                         Contingent Payments.

 

As additional consideration for the Shares (and subject to satisfaction of the conditions set forth below), the Buyer shall deliver to the Sellers’ Representative the following amounts (which, in each case, the Sellers’ Representative shall deliver to the Stockholders in accordance with their Pro Rata Share), if any, as determined and at such times as set forth below (each such payment a “ Contingent Payment ”):

 

(a)                                  Payments for the First Calculation Period .

 

(i)                                      Revenue Payment .

 

(1)                                  If the quotient of (A) the Actual Revenue for the First Calculation Period divided by (B) the Annual Revenue Target is less 0.90, then no payment is due; or

 

(2)                                  If the quotient of (A) the Actual Revenue for the First Calculation Period divided by (B) the Annual Revenue Target is equal to or greater than 0.90, then the payment will be calculated as follows: (w) (i) the Actual Revenue

 

3



 

for the First Calculation Period divided by the Annual Revenue Target, minus (ii) 0.90, multiplied by (x) 10, multiplied by (y) $375,000 plus (z) $125,000; provided , that the foregoing payment shall be capped at $500,000 (i.e. if the Actual Revenue for the First Calculation Period is equal to or greater than the Annual Revenue Target, the payment amount shall be $500,000).

 

(ii)                                   Gross Profit Payment .

 

(1)                                  If the quotient of (A) the Actual Gross Profit for the First Calculation Period divided by (B) the Annual Gross Profit Target is less than 0.90, then no payment is due; or

 

(2)                                  If the quotient of (A) the Actual Gross Profit for the First Calculation Period divided by (B) the Annual Gross Profit Target is greater than or equal to 0.90, then the payment will be calculated as follows: (w) (i) the Actual Gross Profit for the First Calculation Period divided by the Annual Gross Profit Target, minus (ii) 0.90, multiplied by (x) 10, multiplied by (y) $375,000 plus (z) $125,000; provided , that the foregoing payment shall be capped at $500,000 (i.e. if the Actual Gross Profit for the First Calculation Period is equal to or greater than the Annual Gross Profit Target, the payment amount shall be $500,000).

 

(b)                                  Payments for the Second Calculation Period .

 

(i)                                      Revenue Payment .

 

(1)                                  If the quotient of (A) the Actual Revenue for the Second Calculation Period divided by (B) the Annual Revenue Target is less than 0.90, then no payment is due; or

 

(2)                                  If the quotient of (A) the Actual Revenue for the Second Calculation Period divided by (B) the Annual Revenue Target is equal to or greater than 0.90, then the payment will be calculated as follows: (w) (i) the Actual Revenue for the Second Calculation Period divided by the Annual Revenue Target, minus (ii) 0.90, multiplied by (x) 10, multiplied by (y) $375,000 plus (z) $125,000; provided , that the foregoing payment shall be capped at $500,000 (i.e. if the Actual Revenue for the Second Calculation Period is equal to or greater than the Annual Revenue Target, the payment amount shall be $500,000).

 

4



 

(ii)                                   Gross Profit Payment .

 

(1)                                  If the quotient of (A) the Actual Gross Profit for the Second Calculation Period divided by (B) the Annual Gross Profit Target is less than 0.90, then no payment is due;  or

 

(2)                                  If the quotient of (A) the Actual Gross Profit for the Second Calculation Period divided by (B) the Annual Gross Profit Target is greater than or equal to 0.90, then the payment will be calculated as follows: (w) (i) the Actual Gross Profit for the Second Calculation Period divided by the Annual Gross Profit Target, minus (ii) 0.90, multiplied by (x) 10, multiplied by (y) $375,000 plus (z) $125,000; provided , that the foregoing payment shall be capped at $500,000 (i.e. if the Actual Gross Profit for the Second Calculation Period is equal to or greater than the Annual Gross Profit Target, the payment amount shall be $500,000).

 

(c)                                   Additional “Catch-Up” Payment for First Calculation Period .

 

(i)                                      Revenue Payment .

 

If, and only if, there is (i) a Year One Revenue Shortfall (and Actual Revenue for the First Calculation Period is at least 95% of the Annual Revenue Target) and (ii) a Year Two Revenue Overachievement, then an additional payment in respect of the First Calculation Period will be paid to the Stockholders following the Second Calculation Period.  Such payment will be calculated as follows: (x) the quotient of (A) the Year Two Revenue Overachievement divided by (B) the Year One Revenue Shortfall (but in no event greater than 1.0), multiplied by (y) (A) $500,000 minus (B) any payment previously made pursuant Section 1.04(a)(i) above.  The sum of the foregoing payment and any payments made pursuant to Section 1.04(a)(i) and Section 1.04(b)(i) above shall in no event be more than $1,000,000 in the aggregate.

 

(ii)                                   Gross Profit Payment .

 

If, and only if, there is (i) a Year One Gross Profit Shortfall (and Actual Gross Profit for the First Calculation Period is at least 95% of the Annual Gross Profit Target) and (ii) a Year Two Gross Profit Overachievement, then an additional payment in respect of the First Calculation Period will be paid to the Stockholders following the Second Calculation Period.  Such payment will be calculated as follows: (x) the quotient of (A) the Year Two Gross Profit Overachievement divided by (B) the Year One Gross Profit Shortfall (but in no event greater than 1.0), multiplied by (y)(A) $500,000 minus (B) any payment previously made pursuant

 

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Section 1.04(a)(ii)  above.  The sum of the foregoing payment and any payments made pursuant to Section 1.04(a)(ii) and Section 1.04(b)(ii) above shall in no event be more than $1,000,000 in the aggregate.

 

(d)                                  Contractual Allowances Schedule 1.04(d)  sets forth the invoice numbers and relevant amounts in respect of such invoices that have been posted to the Company’s account for contractual allowances and discounts (commonly referred to as Account 4011) as of the Closing Date (the “ Closing Date Contractual Allowances ”).  In the event that the Company collects any amounts in respect of the Closing Date Contractual Allowances, then (i) such amounts shall be disregarded for purposes of calculating Actual Revenue and Actual Gross Profit during the Calculation Periods and (ii) the Annual Revenue Target and the Annual Gross Profit Target shall be increased, on a dollar for dollar basis, in the amount of such collections.

 

(e)                                   Definitions .  For the purposes of this Agreement, the following terms when capitalized in this Agreement shall have the following meanings:

 

(i)                                      Annual Revenue Target ” shall mean $30,092,022.

 

(ii)                                   Annual Gross Profit Target ” shall mean $6,608,664.

 

(iii)                                Actual Revenue ” is the revenue of the Company during the applicable Calculation Period, net of contractual allowances and discounts, and excluding investment, dividend and interest income, and gain or loss on asset disposal, as set forth on the Company’s financial statements for such period.

 

(iv)                               Actual Gross Profit ” is the gross profit of the Company during the applicable Calculation Period, net of contractual allowances and discounts, and excluding investment, dividend and interest income, and gain or loss on asset disposal, as set forth on the Company’s financial statements for such period.

 

(v)                                  Calculation Period ” refers to the First Calculation Period and/or the Second Calculation Period, as applicable.

 

(vi)                               First Calculation Period ” means the period beginning on the date that is the last day of the month in which the Closing occurs and ending on the first anniversary of such date.

 

(vii)                            Second Calculation Period ” means the period beginning on the date that is the first day after the end of the First Calculation Period and ending on the first anniversary of such date.

 

(viii)                         Year One Gross Profit Shortfall ” shall mean, if a positive number, (x) the Annual Gross Profit Target minus (y) Actual Gross Profit for the First Calculation Period

 

(ix)                               Year One Revenue Shortfall ” shall mean, if a positive number, (x) the Annual Revenue Target minus (y) Actual Revenue for the First Calculation Period.

 

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(x)                                  Year Two Gross Profit Overachievement ” shall mean, if a positive number, (x) Actual Gross Profit for the Second Calculation Period minus (y) the Annual Gross Profit Target.

 

(xi)                               Year Two Revenue Overachievement ” shall mean, if a positive number, (x) Actual Revenue for the Second Calculation Period minus (y) the Annual Revenue Target.

 

(f)                                    Determination of the Contingent Payments .

 

(i)                                      Within 60 days after each of the Calculation Periods, Buyer shall deliver to the Sellers’ Representative a written statement (in each case, a “ Contingent Payment Statement ”) setting forth its calculation of the Actual Revenue and Actual Gross Profit for such Calculation Period and its determination of whether any such Contingent Payment is due and payable.

 

(ii)                                   The Sellers’ Representative shall have 30 days after receipt of any applicable Contingent Payment Statement (in each case, the “ CPS Review Period ”) to review the financial results set forth therein.  Prior to the expiration of any applicable CPS Review Period, the Sellers’ Representative may object to the financial results set forth in the Contingent Payment Statement by delivering a written notice of objection (in each case, an “ Objection Notice ”) to Buyer.  Any Objection Notice shall specify the items disputed by the Sellers’ Representative and shall describe in reasonable detail the basis for such objection, as well as the amount in dispute.  If the Sellers’ Representative fails to deliver an Objection Notice to Buyer prior to the expiration of any applicable CPS Review Period, then the determination of the Buyer set forth in the Contingent Payment Statement for such period shall be final and binding on the parties hereto.  If the Sellers’ Representative timely delivers an Objection Notice, Buyer and the Sellers’ Representative shall negotiate in good faith to determine whether a Contingent Payment, if any, is due for such period.  If Buyer and the Sellers’ Representative are unable to reach agreement within 45 days after such an Objection Notice has been given (or such longer period as they may mutually agree), then all unresolved disputed items shall be promptly referred to the Neutral Accountant.  The Neutral Accountant shall be directed to render a written report on the unresolved disputed items as promptly as practicable, but in no event greater than 30 days after such submission to the Neutral Accountant and determine whether any applicable Contingent Payment is due.  The Neutral Accountant shall resolve the disputed items based solely on the applicable definitions and other terms in this Agreement and the presentations by Buyer and Sellers’ Representative, and not by independent review.  The resolution of any dispute that is the subject of an Objection Notice by the Neutral Accountant shall be final and binding on the parties hereto.  The fees and expenses of the Neutral Accountant shall be borne by (i) Buyer if a Contingent Payment is determined to be due or (ii) the Stockholders, jointly and severally, if a Contingent Payment is determined to not be due.

 

(g)                                   Payment of Contingent Payments .  Subject to the other terms and conditions of this Agreement, any Contingent Payment that Buyer is required to pay pursuant to Section 1.04 hereof shall be paid in full upon five Business Days following the date upon which the determination of whether a Contingent Payment is due becomes final and binding upon the parties as provided in Section 1.04(f) (including any final resolution of any dispute raised by

 

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Sellers’ Representative in an Objection Notice).  Buyer shall pay (or caused to be paid) to the Sellers’ Representative (which the Sellers’ Representative shall deliver to the Stockholders in accordance with their Pro Rata Share) each Contingent Payment in cash by wire transfer of immediately available funds to the bank account designated in writing by the Sellers’ Representative.

 

(h)                                  Post-Closing Operation of the Business and Accounting .  Subject to the terms and conditions of this Agreement, subsequent to the Closing, Buyer will have the power and right to control the Business and operations of Buyer as Buyer sees fit in its sole discretion.  Notwithstanding the foregoing, during both Calculation Periods:

 

(i)                                      The Buyer shall act in good faith at all times.  Buyer will not take actions or refrain from taking actions with the intent to impede the Stockholders’ eligibility for the Contingent Payments.

 

(ii)                                   The Buyer will use accounting methods in good faith and consistent with the historical practices of the Company (and to the extent consistent with the historical practices of the Company, GAAP) to determine whether the Company meets the Annual Revenue Target and the Annual Gross Profit Target for each Calculation Period and will exclude any transaction, restructuring and integration related expenses that could be charged against revenue and gross profits.

 

(iii)                                The Buyer will make adjustments for any inter-company transactions between the Company and Buyer’s affiliates if such transactions are not arm’s length transactions.

 

(iv)                               For purposes of calculating the Actual Revenue and Actual Gross Profit, sales that are originated by the Company and processed through Buyer or one of its Subsidiaries will be credited to the Company.  There shall be no deduction for billing pre-Closing out-of-network clients of the Company at lower in-network rates, if (and only if) such clients are converted to lower in-network rates solely due to the consummation of the transactions contemplated by this Agreement.  Schedule 1.04(h)(iv) sets forth a list of such out-of network clients and the current billing rates.

 

(v)                                  During each Calculation Period, the Buyer shall provide quarterly financial schedules (including revenue, cost of goods sold, an accounts receivable aging report and such other reports that may be reasonably requested) to Sellers’ Representative that are directly needed to determine the revenue and gross profit of the Company during such Calculation Period to date.

 

(i)                                      No Security .  The parties hereto understand and agree that (i) the contingent rights to receive the Contingent Payments shall not be represented by any form of certificate or other instrument, are not transferable, are unsecured, and do not constitute an equity or ownership interest in Buyer or the Company and (ii) no Stockholder shall have any rights as a security holder of Buyer or the Company as a result of any Stockholder’s contingent right to receive any Contingent Payments hereunder.

 

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1.05                         Tax Withholding.

 

Each of Buyer and the Escrow Agent shall be entitled to deduct and withhold from any consideration otherwise payable pursuant to this Agreement or the Escrow Agreement such amounts as may be required to be deducted and withheld under the Code or other applicable Law.  Any amounts so deducted and withheld shall be treated for all purposes as having been paid to the Person in respect of whom such deduction and withholding was made.

 

ARTICLE II.

CLOSING

 

2.01                         Closing.

 

The closing of the transactions contemplated by this Agreement (the “ Closing ”) shall take place at the offices of the Company at 31 Moody Road, Enfield, Connecticut, at 10:00 a.m. local time on the date hereof.  The date on which the Closing shall occur is referred to herein as the “ Closing Date .” The Closing will be deemed to be effective as of 12:01 a.m. on the Closing Date for Tax and accounting purposes.

 

2.02                         Closing Deliveries.

 

(a)                                  At the Closing, Buyer shall deliver (or cause to be delivered):

 

(i)                                      The Closing Cash Purchase Price to the Stockholders as follows:

 

(1)                                  Buyer shall deliver $1,350,000 (the “ Escrow Amount ”) by wire transfer of immediately available funds to an account designated in writing by Wells Fargo Bank, National Association (the “ Escrow Agent ”) pursuant to the terms of that certain Escrow Agreement in the form of Exhibit A attached hereto (the “ Escrow Agreement ”); and

 

(2)                                  Buyer shall deliver to Sellers’ Representative an amount equal to (A) the Estimated Closing Purchase Price, minus (B) the Escrow Amount, by wire transfer of immediately available funds to an account designated in writing by Sellers’ Representative (which Sellers’ Representative shall deliver to the Stockholders in accordance with their Pro Rata Share).

 

(ii)                                   An executed certificate of the Secretary (or other executive officer) of the Buyer certifying: (x) that the charter and organizational documents of the Buyer (which are to be attached to the certificate) are true and correct as of the Closing Date and (y) the resolutions of the board of directors of the Buyer authorizing the transactions contemplated under this Agreement;

 

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(iii)                                A certificate, dated the Closing Date and signed by a duly authorized officer of the Buyer, that each of the conditions set forth in Section 6.03 have been satisfied; and

 

(b)                                  Prior to or at the Closing, the Stockholders shall deliver (or cause to be delivered) to Buyer the following items:

 

(i)                                      Assignments separate from certificate (or other instruments of transfer) representing the Shares, duly endorsed in blank and otherwise in the proper form for transfer.

 

(ii)                                   Payoff letters and releases of all Liens on all of the assets and properties of the Company, including all required UCC-3 termination statements or other evidences of discharge satisfactory to Buyer.

 

(iii)                                Evidence reasonably acceptable to Buyer (including invoices and estimates, as applicable) of the balances for all items composing Sellers’ Expenses and Closing Indebtedness.

 

(iv)                               Evidence reasonably acceptable to Buyer of the termination of all agreements, Contracts, leases or licenses with any (A) Affiliate of the Company or any Stockholder (except as set forth on Schedule 2.02(b)(iv) ), and (B) broker, finder or agent related to, or entered into in connection with, the transactions contemplated hereunder.

 

(v)                                  Fully executed employment agreements with each of Adam Oliveri, Renee Oliveri and Mark Zatryka in the form of Exhibit B attached hereto (the “ Employment Agreements ”).

 

(vi)                               A fully executed transition agreement with Jim Calnan in the form of Exhibit C attached hereto (the “ Transition Agreement ”).

 

(vii)                            A fully executed amended and restated lease agreement for the property located at 31 Moody Road, Enfield, Connecticut in the form of Exhibit D attached hereto (the “ Amended and Restated Lease ”).

 

(viii)                         Executed resignations for such officers, directors, and employees of the Company for which Buyer has requested, in each case, effective as of the Closing Date.

 

(ix)                               Certificates from each of the Stockholders, stating that such Stockholder is not a “foreign person” as defined in Section 1445 of the Code, and otherwise meeting the requirements of Section 1.445-2(b) of the Treasury Regulations.

 

(x)                                  Certificates of standing showing that the Company is duly incorporated, validly existing and in good standing in each state where each such entity is incorporated, owns property or hires employees as of the Closing Date.

 

(xi)                               Amended articles of incorporation of the Company removing any provision related to restrictions on the transfer of shares, and each Stockholder hereby consents

 

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to the Certificate of Amendment and authorizes the Seller’s Representative to file the Certificate of Amendment effective as of the Closing Date.

 

(xii)                            An executed certificate of the Secretary (or other executive officer) of the Company certifying: (a) that the charter and organizational documents of the Company (which are to be attached to the certificate) are true and correct as of the Closing Date, (b) the names and signatures of the officers authorized to sign this Agreement and the other documents to be delivered in connection therewith, and (c) the resolutions of the board of directors and stockholders of the Company authorizing the transactions contemplated under this Agreement.

 

(xiii)                         All third party consents and approvals that are required in order to prevent a breach of or default under, a termination or modification of, or acceleration of the terms of, any Contract or agreement of the Company and all governmental and regulatory consents and approvals that are necessary for the consummation of the transactions contemplated hereby and the operation of the Business following the Closing, in each case, on terms satisfactory to Buyer and without conditions or modifications adverse to Buyer.

 

(xiv)                        All original minute books, records, equity interest ledgers, corporate seals and other materials of the Company.

 

(xv)                           Executed landlord estoppels, landlord waivers, and landlord consents with respect to each property comprising the Leased Real Property, in each case in such form and substance as reasonably acceptable to Buyer.

 

(xvi)                        All documents, certificates, filings, and other information required by Buyer’s lenders.

 

(xvii)                     A certificate, dated the Closing Date and signed by a duly authorized officer of the Company, that each of the conditions set forth in Section 6.02 have been satisfied.

 

(xviii)                  Such other documents as Buyer may reasonably request, in form and substance satisfactory to Buyer, and if necessary, executed by the Stockholders and the Company for the purpose of evidencing the accuracy of the representations and warranties contained in this Agreement or the satisfaction of the conditions and covenants set forth herein.

 

ARTICLE III.

REPRESENTATIONS AND WARRANTIES REGARDING THE STOCKHOLDERS

 

As a material inducement to Buyer to enter into this Agreement and to consummate the transactions contemplated hereunder, each Majority Stockholder, jointly and severally, and each Minority Stockholder with respect to Sections   3.01 and 3.03 , hereby makes the representations and warranties set forth in this ARTICLE III as of the Closing Date.

 

3.01                         Organization and Authority.

 

Each Stockholder that is not an individual is duly organized, validly existing and in good standing under the laws of the state of its organization.  Each Stockholder has full power and

 

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authority to enter into this Agreement and the other documents contemplated hereunder, to carry out its obligations hereunder and thereunder, and to consummate the transactions contemplated hereby and thereby.  The execution and delivery by each Stockholder of this Agreement and the other documents contemplated hereunder, the performance by each Stockholder of its obligations hereunder and thereunder, and the consummation by each Stockholder of the transactions contemplated hereby and thereby has been duly authorized by all requisite action on the part of such Stockholder.  This Agreement and the other documents contemplated hereunder have been duly executed and delivered by each Stockholder and constitute legal, valid and binding obligations of each Stockholder enforceable against such Stockholder in accordance with its terms, except as enforceability hereof may be limited by bankruptcy, insolvency or other laws affecting creditor’s rights generally and limitations on the availability of equitable remedies.

 

3.02                         Absence of Conflicts.

 

Neither the execution, delivery or performance of this Agreement or any other document contemplated hereunder by any Stockholder, nor the consummation by any Stockholder of the transactions contemplated hereby or thereby:

 

(a)                                  does or will (i) conflict with or result in any breach of any of the provisions of, (ii) constitute a default under, (iii) result in a violation of, (iv) give any third party the right to terminate or to accelerate any obligation under, or (v) result in the creation of any Lien upon any assets of such Stockholder (including, without limitation, upon or with respect to the Shares), in each case under the provisions of any indenture, license, mortgage, loan agreement or other agreement, instrument or Contract or any Law by which such Stockholder or any of such Stockholder’s assets are affected, or

 

(b)                                  without limiting clause (a) above, require any consent, approval, or authorization of any Governmental Entity or any other Person.

 

3.03                         Ownership of the Shares.

 

As of the Closing Date, all of the Shares are owned beneficially by the Stockholders, free and clear of all Liens.  No Stockholder is a party to any option, warrant, purchase right, or other Contract or commitment that could require such Stockholder to sell, transfer, or otherwise dispose of any equity interests of the Company (other than this Agreement).  At the Closing, the Stockholders shall transfer to Buyer good title to all of the equity interests of the Company, free and clear of any Liens or other restrictions on transfer or options, rights of first refusal or similar rights granted in favor of any third party.  The financing statement filed with the Massachusetts Secretary of the Commonwealth, filing number 200976600550, naming United Bank as secured party and Thomas P. Keenan as debtor does not relate to any Stockholder.

 

3.04                         Stockholders’ Broker.

 

Except as disclosed on Schedule 3.04 , no Stockholder nor any representatives or Affiliates of any Stockholder, has incurred any obligation or Liability, contingent or otherwise, for any brokerage or finder’s fee or agent’s commission or other similar payment in connection with this Agreement or the transactions contemplated hereunder.

 

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3.05                         Litigation.

 

There are no Actions, suits or Proceedings pending or, to any Stockholder’s Knowledge, threatened against any Stockholder, at law or in equity, or before or by any Governmental Entity, which if determined adversely to any such Stockholder would adversely affect such Stockholder’s performance under this Agreement or the consummation by such Stockholder of the transactions contemplated hereby.

 

3.06                         Disclosure.

 

No Stockholder has any Knowledge of any facts pertaining to such Stockholder which could have a Material Adverse Effect and which have not been disclosed in this Agreement.  Neither this Agreement nor any of the other documents contemplated hereunder to which any Stockholder is a party, nor any of the schedules or exhibits hereto or thereto, contain any untrue statement of a material fact or, when considered as a whole, omit a material fact necessary to make the statements contained herein or therein, in light of the circumstances in which they were made, not misleading.  All statements and information contained in any certificate, instrument, disclosure schedule or document delivered by or on behalf of any such Stockholder to Buyer or its representatives pursuant to this Agreement will be deemed representations and warranties of such Stockholder.

 

ARTICLE IV.

REPRESENTATIONS AND WARRANTIES REGARDING COMPANY

 

As a material inducement to Buyer to enter into this Agreement and to consummate the transactions contemplated under this Agreement, each Majority Stockholder and the Company, jointly and severally, hereby makes the representations and warranties set forth in this ARTICLE IV as of the Closing Date.

 

4.01                         Organization and Power.

 

The Company is a corporation duly incorporated, validly existing and in good standing (or having comparable active status) under the Laws of its jurisdiction of incorporation (which is set forth on Schedule 4.01 ) and is qualified to do business in every jurisdiction in which the nature of its business or the ownership of its property requires it to be qualified (which are set forth on Schedule 4.01 ).  The Company has the full power necessary to own and operate its properties and carry on the Business as now conducted and as proposed to be conducted.

 

4.02                         Authorization.

 

The Company has full power and authority to execute and deliver this Agreement and all other documents contemplated hereunder to which it is a party and to perform its obligations hereunder and thereunder.  The Company has duly approved this Agreement and all other documents contemplated hereunder to which it is a party and has duly authorized its execution, delivery and performance of this Agreement and such other documents contemplated hereunder and the performance of its obligations hereunder and thereunder.  No other proceeding or action on the part of the Company is necessary to approve and authorize the Company’s execution and delivery of this Agreement or any other documents contemplated hereunder to which the

 

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Company is a party or the performance of its obligations hereunder or thereunder.  This Agreement constitutes, and each of the other documents contemplated hereunder to which the Company is a party will, when executed, constitute, a valid and binding obligation of the Company, enforceable in accordance with their respective terms and conditions, except as enforceability hereof or thereof may be limited by bankruptcy, insolvency or other laws affecting creditor’s rights generally and limitations on the availability of equitable remedies.

 

4.03                         Capitalization; Subsidiaries.

 

(a)                                  As of the date hereof, and immediately prior to the consummation of the Closing, all of the authorized, issued and outstanding shares of capital stock of the Company are held of record by the Stockholders as indicated on Schedule 4.03(a) .  All of such outstanding shares have been validly issued and are fully paid and nonassessable.  Other than the Shares, there are no (i) outstanding equity interests of the Company, or (ii) Contracts, commitments, understandings or arrangements, including options, warrants or scripts by which the Company is or may become bound to issue any equity interests of the Company.  The Company is not a party to any option, warrant, purchase right, or other Contract or commitment that could require the Company or any Stockholder to sell, transfer, or otherwise dispose of any equity interests of the Company (other than this Agreement).  There are no voting trusts, proxies, or other agreements or understandings with respect to the voting of any equity interests of the Company.  The Company does not control, directly or indirectly, or have any direct or indirect equity participation in any Person.  As of the Closing Date, all equity interests of the Company are owned beneficially by the Stockholders, free and clear of all restrictions on transfer, Taxes, Liens, options, warrants, purchase rights, Contracts, equities, claims, and demands.  Immediately following the Closing Date, Buyer shall own, free and clear of any Liens, all of the outstanding equity interests of the Company.

 

(b)                                  There are no Subsidiaries of the Company and the Company does not own or have any right to acquire, directly or indirectly, any outstanding capital stock of, or other equity interests in, any Person.

 

4.04                         Absence of Conflicts.

 

Except as set forth on Schedule 4.04 , neither the execution, delivery or performance of this Agreement or any other document contemplated hereunder by the Company, nor the consummation by the Company of the transactions contemplated hereby or thereby: does or will (i) conflict with or result in any breach of any of the provisions of, (ii) constitute a default under, (iii) result in a violation of, (iv) give any third party the right to terminate or to accelerate any obligation under, (v) result in the creation of any Lien upon any assets of the Company, or (vi) require any authorization, consent, approval, exemption or other action by or notice to or filing with any Governmental Entity or any other Person, in each case under the provisions of the articles of incorporation or bylaws or resolutions of the Company or any indenture, license, mortgage, loan agreement or other agreement, instrument, Contract or any Law by which the Company or any of its respective assets is affected, or to which the Company or any of its respective assets is subject.

 

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4.05                         Financial Statements.

 

Attached as Schedule 4.05 are true and complete copies of the following (collectively, the “ Financial Statements ”): (i) the reviewed balance sheet of the Company for the last day of, and the related statements of operations, income, cash flows and statements of shareholders’ equity for, its respective fiscal years ending on each of December 31, 2012, 2011 and 2010 (the “ Reviewed Financial Statements ”), and (ii) the unaudited combined balance sheets of the Company and the related combined statements of income for the ten (10)-month period ending on October 31, 2013 (the “ Interim Financial Statements ”).  Each such Financial Statement (in each case, including the notes and auditors’ reports thereto, if any) is accurate and complete in all respects, is consistent with the books and records of the Company (which, in turn, are accurate and complete in all respects), and fairly and accurately presents the financial condition, operating results, and cash flows of the Company as of such dates.  Except as set forth on Schedule 4.05 , each such Financial Statement has been prepared in accordance with GAAP consistently applied throughout the period covered thereby.  There has been no material change in the accounting methods or practices of the Company since the earliest date covered by the Financial Statements.  No financial statements of any Person (other than the Company) are required by GAAP to be included or reflected in the Financial Statements.  The Stockholders have also delivered to Buyer copies of all letters from the Company’s auditors to any member of the Company’s board of directors or audit committee thereof (or any other Persons containing similar powers) during the 60 months prior to the date of this Agreement, together with copies of all responses thereto.

 

4.06                         Certain Developments.

 

Except as set forth on Schedule 4.06 , during the period beginning on December 31, 2012, and ending on the Closing Date, the Company has not:

 

(a)                                  sold, leased, transferred, or assigned any of its material assets, tangible or intangible (including Proprietary Rights) other than inventory sold for a fair consideration in the ordinary course of business;

 

(b)                                  entered into any agreement, Contract, lease, license or permit (or series of related agreements, Contracts, leases, licenses and permits), either (i) involving more than $50,000 (individually or in the aggregate), or (ii) outside the ordinary course of business;

 

(c)                                   entered into any Contract with any Governmental Entity or accelerated, terminated, modified, or cancelled any Contract with any Governmental Entity to which the Company is a party or by which it is bound;

 

(d)                                  entered into any agreement, Contract, lease or license (or series of related agreements, Contracts, leases or licenses) with any Related Person or Affiliate of the Company or any Stockholder;

 

(e)                                   waived any right of material value;

 

(f)                                    accelerated, terminated, modified, or cancelled any Contract (or series of related Contracts) involving more than $50,000 (individually or in the aggregate) to which the Company is a party or by which it is bound;

 

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(g)                                   imposed (or allowed to be imposed) any Lien upon any of its assets, tangible or intangible (including any Proprietary Rights);

 

(h)                                  made any capital expenditure (or series of related capital expenditures) either involving more than $50,000 or outside the ordinary course of business;

 

(i)                                      made any capital investment in, any loan to, or any acquisition of the securities or assets of, any other Person (or series of related capital investments, loans, and acquisitions);

 

(j)                                     issued any note, bond, or other debt security or created, incurred, assumed, or guaranteed any Indebtedness;

 

(k)                                  delayed or postponed the payment of accounts payable and other Liabilities outside the ordinary course of business;

 

(l)                                      declared, set aside, or paid any dividend or made any distribution with respect to its equity interests (whether in cash or in kind) or redeemed, purchased, or otherwise acquired any of its equity interests;

 

(m)                              entered into any employment Contract or collective bargaining agreement, written or oral, or modified the terms of any such existing Contract or agreement;

 

(n)                                  adopted, amended, modified or terminated any Benefit Plan, any profit sharing, incentive, severance or other plan; or any other Contract or commitment for the benefit of any of its current or former directors, officers and employees;

 

(o)                                  paid, or committed to pay (whether or not in writing), any severance, termination or similar payment to any current or former employee (regardless of whether such severance, termination or similar payment has been paid pursuant to any Benefit Plan);

 

(p)                                  made any Tax election, adopted or changed any accounting method or policy (whether or not for Tax purposes), filed any amended Tax Return, consented to or entered into any closing agreement or similar agreement with any Taxing Authority, consented to or settled or compromised any Tax claim or assessment or taken any position inconsistent with any past practice on any Tax Return;

 

(q)                                  made or granted any bonus or any wage, salary or compensation increase in excess of $25,000 per year to any employee or independent contractor, except pursuant to the express terms of any Contract which is described on Schedule 4.09(a) ;

 

(r)                                     transferred, assigned or granted any license or sublicense of any rights under or with respect to any Proprietary Right;

 

(s)                                    experienced any damage, destruction or loss (whether or not covered by insurance) to its property or suffered a Material Adverse Effect;

 

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(t)                                     failed to maintain insurance policies or risk management programs, and in the event of casualty, loss or damage, to any assets of the Company, repair or replace such assets with assets of comparable quality;

 

(u)                                  changed its accounting policies and practices as in effect on the date of the latest Reviewed Financial Statements or changed its fiscal year;

 

(v)                                  amended or authorized its articles of incorporation or bylaws or similar governing documents;

 

(w)                                entered into any other transaction other than in the ordinary course of business, or changed any material business practice; or

 

(x)                                  agreed or committed (whether or not in writing) to do any of the foregoing.

 

4.07                         Real Property.

 

(a)                                  Leased Properties Schedule 4.07(a)  sets forth the address of each parcel of Leased Real Property and a true and complete list of all Leases for each such Leased Real Property (including the date and name of the parties to such Lease document).  The Company has delivered to Buyer a true and complete copy of each such Lease document, and in the case of any oral Lease, a written summary of the material terms of such Lease.  Except as set forth in Schedule 4.07(a) , with respect to each of the Leases:

 

(i)                                      such Lease is legal, valid and binding upon the parties thereto, enforceable and in full force and effect, and there are no untrue or conflicting statements in any of the landlord estoppels delivered to Buyer in connection with the transactions completed hereunder;

 

(ii)                                   the transactions contemplated by this Agreement, the other documents contemplated hereunder, and the consummation of the transactions contemplated hereunder and thereunder do not require the consent of any other party to such Lease, will not result in a breach of or default under such Lease, and will not otherwise cause such Lease to cease to be legal, valid, binding, enforceable and in full force and effect on identical terms following the Closing;

 

(iii)                                the Company’s possession and quiet enjoyment of the Leased Real Property under such Lease has not been disturbed and there are no disputes with respect to such Lease;

 

(iv)                               neither the Company nor any other party to any Lease is in breach or default under such Lease, and no event has occurred or circumstance exists which, with the delivery of notice, the passage of time or both, would constitute such a breach or default, or permit the termination, modification or acceleration of rent under such Lease;

 

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(v)                                  no security deposit or portion thereof deposited with respect to such Lease has been applied in respect of a breach or default under such Lease which has not been redeposited in full;

 

(vi)                               except as otherwise specifically noted on Schedule 4.07(a) , the other party to such Lease is not an Affiliate of, and otherwise does not have any economic interest in, the Company or any Stockholder;

 

(vii)                            the Company has not subleased, licensed or otherwise granted any Person the right to use or occupy such Leased Real Property or any portion thereof;

 

(viii)                         with respect to the operation of the Business at the Leased Real Property, the Company has received all approvals, permits and licenses which are required to operate the Business and has obtained and maintained the same in compliance with all Laws;

 

(ix)                               the Company has not collaterally assigned or granted any other security in such Lease or any interest therein;

 

(x)                                  there are no Liens on the Company’s estate or interest created by such Lease; and

 

(xi)                               the Company has not agreed or committed to do any of the foregoing.

 

(b)                                  Owned Real Property .  The Company does not own any real property.

 

(c)                                   Other Real Property .  Other than the Leased Real Property, the Company does not own, use or occupy or have any obligation or Liability with respect to any land, building, structures, improvements, fixtures or other interest in real property.  Except as set forth on Schedule 4.07(c) and except for the Leased Real Property, the Company has not owned, leased or occupied any real property.  There are no known existing conditions or circumstances on, under or in connection with any Real Property which could impair or preclude the use of such Real Property for operation of the Business in any respect.  With respect to the operation of the Business at the Real Property, there is no pending Proceeding or Action, Law, restriction or moratorium imposed, enacted or threatened, the effect of which would impair the Company’s ability to maintain, after the Closing, any approvals necessary for the operation of the Business at such Real Property.

 

4.08                         Tax Matters.

 

Except as set forth on Schedule 4.08 :

 

(a)                                  The Company has duly and timely filed all Tax Returns that it was required to file.  All such Tax Returns are true, complete and correct in all material respects.  All Taxes owed by the Company (whether or not shown on any Tax Return) have been paid.  All Taxes owed by any Stockholder in respect of any and all income of the Company have been paid.  The Company is not the beneficiary of any extension of time within which to file any Tax Return.  No claim has ever been made by a Taxing Authority in a jurisdiction where the

 

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Company does not file Tax Returns that it is or may be subject to taxation by that jurisdiction.  There are no Liens on any of the assets of the Company that arose in connection with any failure (or alleged failure) to pay any Tax.

 

(b)                                  The Company has timely withheld and paid to the appropriate Taxing Authority all Taxes required by any Law to have been withheld and paid to such Taxing Authority in connection with amounts paid or owing to any Person, including all Taxes required to have been withheld and paid in connection with amounts paid or owing to any employee, former employee, partner, independent contractor, creditor, stockholder, Affiliate, customer, supplier or other Person, and all Forms W-2 and 1099 required with respect thereto have been properly completed and timely filed.

 

(c)                                   There is no dispute or claim concerning any Tax Liability of the Company claimed or raised by any Taxing Authority, and, to the Company’s Knowledge (including, for this purpose, to the Knowledge of any employee responsible for Tax matters) and to the Knowledge of the Majority Stockholders, none is threatened.  Schedule 4.08 lists all United States federal, state, local and non-United States income Tax Returns filed by or with respect to the Company for any taxable periods ended on or after December 31, 2010, indicates those Tax Returns that have been audited and indicates those Tax Returns that currently are the subject of an audit.  The Company has delivered or made available (in its electronic data room) to Buyer correct and complete copies of all material Tax Returns filed by, and all examination reports and statements of deficiencies assessed against or agreed to by, the Company since December 31, 2006.  There are no outstanding requests, agreements, consents or waivers to extend the statutory period of limitation applicable to the assessment of any Taxes against the Company.  There are no pending or, to the Company’s or Majority Stockholders’ Knowledge, threatened audits or Proceedings for or relating to any Liability in respect of Taxes of the Company.  The Company is not doing business in or engaged in a trade or business in any jurisdiction in which it has not filed Tax Returns, and no notice or inquiry has been received from any jurisdiction in which Tax Returns have not been filed by any Stockholder or the Company to the effect that the filing of Tax Returns may be required (or that the Company may otherwise be subject to Tax) in that jurisdiction.

 

(d)                                  The Company is not a party to any Tax allocation, Tax sharing, Tax indemnity or other similar agreement, or other agreement or arrangement with respect to Taxes (including any closing agreement, gain recognition agreement or other material agreement relating to Taxes with any Taxing Authority).  The Company has not granted any currently effective power of attorney to represent or act for the Company before or in dealing with any Taxing Authority.

 

(e)                                   The Company has disclosed on its federal income Tax Returns all positions taken therein that could give rise to a substantial understatement of federal income tax within the meaning of Section 6662 of the Code.  The Company has never been a member of a Relevant Group, and the Company does not have any Liability for the Taxes of any Person under Section 1.1502-6 of the Treasury regulations (or any similar provision of Law), as a transferee or successor, by Contract or otherwise.  The Company does not own, and has never owned, an interest in any other corporation, partnership or other entity, including an entity the separate existence of which is disregarded for United States federal income tax purposes.

 

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(f)                                    None of the assets of the Company constitutes tax-exempt bond financed property or tax-exempt use property, within the meaning of Section 168 of the Code.  The Company is not a party to any “safe harbor lease” that is subject to the provisions of Section 168(f)(8) of the Internal Revenue Code as in effect prior to the Tax Reform Act of 1986.

 

(g)                                   The Company has not agreed, and the Company is not required, to make any adjustment under Section 481(a) of the Code by reason of a change in accounting method or otherwise, and the Company has not made any similar election, and the Company is not required to apply any similar rules, under any comparable state, local or foreign Tax provision.  The Company will not be required to include any item of income in, or exclude any item of deduction from, taxable income for any taxable period (or portion thereof) ending after the Closing Date as a result of any (i) change in method of accounting for a taxable period ending on or prior to the Closing Date, (ii) installment sale or open transaction disposition made on or prior to the Closing Date, (iii) use of the completed contract or percentage of completion method of accounting, (iv) prepaid amount received on or prior to the Closing Date or (v) closing agreement under Section 7121 of the Code (or other comparable agreement) entered into on or prior to the Closing Date.

 

(h)                                  The Company is not a party to any understanding or arrangement described in Section 6111(d) or Section 6662(d)(2)(C)(iii) of the Code, and the Company has not “participated” in a “reportable transaction” within the meaning of Treasury Regulation section 1.6011-4.

 

(i)                                      No Stockholder will cause, and no Stockholder will allow, the Company to take any action on the Closing Date (other than the transactions contemplated in this Agreement) outside the ordinary course which would result in a Tax Liability to the Company.

 

(j)                                     The amount of the Company’s Liability for unpaid Taxes for all periods ending on or before the date of the Interim Financial Statements does not, in the aggregate, exceed the amount of accruals for Taxes (excluding reserves for deferred Taxes) reflected on the Interim Financial Statements.  The amount of the Company’s Liability for unpaid Taxes for all periods following the end of the period covered by the Interim Financial Statements shall not, in the aggregate, exceed the amount of accruals for Taxes (excluding reserves for deferred Taxes) as adjusted for the passage of time in accordance with the past custom and practice of the Company (and which accruals shall not exceed comparable amounts incurred in similar periods in prior years).

 

(k)                                  The Company (and any predecessor of the Company) has been an S Corporation at all times since February 10, 1989.  The sale of the Shares hereunder is eligible for the Section 338(h)(10) Election (as defined in Section 8.01(i) ).  Neither Buyer nor the Company will be liable for any Tax under Section 1374 of the Code in connection with the deemed sale of assets of the Company resulting from the Section 338(h)(10) Election.  The Company has not, in the past 10 years, (A) acquired assets from another corporation in a transaction in which the transferee’s Tax basis for the acquired assets was determined, in whole or in part, by reference to the Tax basis of the acquired assets (or any other property) in the hands of the transferor or (B) acquired the stock of any corporation that qualified as a subchapter S subsidiary within the meaning of Section 1361(b) of the Code.

 

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(l)                                      The Company has correctly classified those individuals performing services as common law employees, leased employees, independent contractors or agents of the Company.  Each agreement, contract, plan, or other arrangement that is a “nonqualified deferred compensation plan” subject to Section 409A of the Code to which the Company is a party (each, a “ Plan ”) complies with and has been maintained in accordance with the requirements of Section 409A(a)(2), (3), and (4) of the Code and any U.S. Department of Treasury or Internal Revenue Service guidance issued thereunder and no amounts under any such Plan is or has been subject to the interest and additional Tax set forth under Section 409A(a)(1)(B) of the Code.  The Company does not have any actual or potential obligation to reimburse or otherwise ‘‘gross-up’’ any Person for the interest or additional Tax set forth under Section 409A(a)(1)(B) of the Code.

 

4.09                         Contracts and Commitments.

 

(a)                                  Generally Schedule 4.09(a)  lists the following Contracts and other agreements to which the Company is a party:

 

(i)                                      any agreement (or group of related agreements) for the lease of personal property to or from any Person providing for lease payments in excess of $50,000 per annum;

 

(ii)                                   any agreement (or group of related agreements) for the purchase or sale of raw materials, commodities, supplies, products, or other personal property, or for the furnishing or receipt of goods or services, the performance of which may extend over a period of more than one year, result in a material loss to the Company, or involve consideration in excess of $50,000;

 

(iii)                                any agreement concerning a partnership or joint venture;

 

(iv)                               any agreement (or group of related agreements) under which it has created, incurred, assumed, or guaranteed any Indebtedness in excess of $50,000, under which it has imposed a Lien on any of its assets, tangible or intangible (or any related Proprietary Rights) or under which it has agreed to indemnify any other Person (including, without limitation, indemnification for unreimbursed Medicare or Medicaid payments);

 

(v)                                  any agreement with any employee, independent contractor or agent of the Company concerning exclusivity, confidentiality, non-solicitation or non-competition and any agreement restricting the Company from conducting any type of business in any location;

 

(vi)                               any agreement that restricts either the Company’s ability to solicit employees of another Person or another Person’s ability to solicit any employee of the Company;

 

(vii)                            any agreement with any Stockholder or any Related Person or Affiliate of the Company or any Stockholder;

 

(viii)                         any Benefit Plan, including, but not limited to, any bonus, profit sharing, incentive, stock option, equity purchase, equity appreciation, deferred compensation, severance, or other plan, Contract or commitment or arrangement for the benefit of its current or former directors, officers and employees;

 

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(ix)                               any labor or collective bargaining agreement;

 

(x)                                  any agreement for the employment of any individual on a full-time, part-time, consulting, or other basis or providing severance benefits;

 

(xi)                               any agreement concerning or relating to Proprietary Rights;

 

(xii)                            any agreement under which it has advanced or loaned any amount to any of its directors, officers and employees outside the ordinary course;

 

(xiii)                         any agreement under which the consequences of a default or termination could have a Material Adverse Effect;

 

(xiv)                        any agreement under which it has granted any Person any registration rights (including, without limitation, demand and piggyback registration rights);

 

(xv)                           any “take or pay” agreements or Contracts, or agreements or Contracts with the Company’s sales representatives and distributors;

 

(xvi)                        any agreement under which the Company has advanced or loaned any other Person amounts in the aggregate exceeding $50,000;

 

(xvii)                     any other agreement (or group of related agreements) the performance of which involves consideration in excess of $50,000;

 

(xviii)                  any agreement with any customer listed on Schedule 4.28(a) ;

 

(xix)                        any agreement with a sales representative, manufacturer’s representative, distributor, dealer, broker, sales agency or advertising agency or other Person engaged in sales, distribution or promotional activities of the products or services of the Company, or any agreement to act as one of the foregoing, and in each case involving, or anticipated to involve, revenues or expenses of more than $50,000 in any twelve month period;

 

(xx)                           any agreement or other instrument providing for indemnification of any Person with respect to Liabilities relating to any current or former business of the Company or any predecessor Person, other than (A) the organizational documents of the Company, or (B) marketing agreements, property leases and other commercial agreements entered into in the ordinary course;

 

(xxi)                        any agreement containing any warranty by the Company to any other Person with respect to any product or service offered by the Company, where such warranty deviates in any material respect from the Company’s standard warranty terms offered for its customers;

 

(xxii)                     any agreement with a Governmental Entity;

 

(xxiii)                  any agreement that is a power of attorney executed on behalf of the Company;

 

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(xxiv)                 any agreement that requires the Company to use any supplier or third party for all or substantially all of the Company’s requirements or needs or requires the Company to provide to other parties “most favored nation” pricing;

 

(xxv)                    any agreement with any customer or supplier providing for the payment or receipt by the Company of any rebate, discount, allowance or the like;

 

(xxvi)                 any agreement with any third party payors, including the Government Programs; and

 

(xxvii)              any other material Contract of the Company.

 

(b)                                  Absence of Breach .  Each of the items that is described or required to be described on Schedule 4.09(a) is in full force and effect and will be in full force and effect immediately following the Closing Date.  No item which is described or required to be described on Schedule 4.09(a) has been breached, canceled or repudiated by the Company, or (to the Company’s or Stockholders’ Knowledge) by any other party thereto and no such other party has indicated in writing or orally to the Company or any Stockholder that it will stop or decrease the rate of business done with the Company, or that it desires to renegotiate its arrangements with the Company.  The Company has performed in all material respects all obligations required to be performed by it in connection with the items that are described or required to be described on Schedule 4.09(a) and is not in receipt of any claim of default under any such item.  The Company does not have any present expectation or intention of not fully performing in any material respect any obligation pursuant to any item which is described or required to be described on Schedule 4.09(a) .

 

(c)                                   Copies .  The Company has furnished to Buyer a true and correct copy or representative form of all written contracts and other items that are described or required to be described on Schedule 4.09(a) , in each case together with all amendments, waivers or other changes thereto.  Schedule 4.09(a) contains an accurate and complete description of all material terms of all oral contracts and other oral items that are described or required to be described thereon.

 

4.10                         Proprietary Rights.

 

(a)                                  Generally Schedule 4.10(a)  sets forth a complete and correct list of:  (i) all registered and all unregistered Proprietary Rights, including all pending applications for registration of Proprietary Rights owned, filed or used by the Company or in connection with the Business, identifying the Proprietary Rights and whether such Proprietary Right is an owned Proprietary Right or a licensed Proprietary Right, (ii) all other inbound and outbound license agreements, sublicenses, agreements, permissions, consents or similar agreements or arrangements, whether written or oral, identifying for each: (v) the parties thereunder, (w) the date thereof, (x) the type of license (including the term thereof), (y) the Proprietary Rights licensed thereunder, and (z) whether the Company is granting or receiving Proprietary Rights thereunder, and (iii) all domain names and telephone numbers owned by, allocated or issued to the Company or used in connection with the Business.  The Proprietary Rights identified on Schedule 4.10(a) constitute all of the Proprietary Rights owned, licensed by or used in or

 

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necessary for the Business as currently conducted or proposed to be conducted throughout the world, and no Stockholder nor any third party owns or has any rights with respect to such Proprietary Rights.  No Stockholder nor the Company has agreed to indemnify any Person with respect to any Proprietary Rights.

 

(b)                                  Ownership; Infringement .  Except as set forth on Schedule 4.10(b) , (i) the Company, solely and exclusively, owns and possesses all right, title and interest in and to, or in the alternative which will be identified as such on Schedule 4.10(b) , has a valid and enforceable right to use the Proprietary Rights described or required to be described on Schedule 4.10(a) , free and clear of all Liens, and no claim by any third party contesting the validity, enforceability, use or ownership of any of the foregoing has been made, is currently outstanding or, to the Company’s or any Majority Stockholder’s Knowledge, is threatened, (ii) no loss, expiration or claim challenging the validity or enforceability of any Proprietary Right is pending, reasonably foreseeable or, to the Company’s or any Majority Stockholder’s Knowledge, threatened, (iii) the Company has not received any notice of, and neither the Company nor any Majority Stockholder is aware of any fact which indicates a likelihood of any infringement, violation, dilution or misappropriation by, or any conflict with, any third Person with respect to any Proprietary Right, including any demand or request that the Company license rights from a third Person, (iv) to the Company’s and Majority Stockholders’ Knowledge, the practice of any patents or methods comprising the Proprietary Rights do not infringe, dilute, violate or misappropriate the Proprietary Rights of any third person in the jurisdiction where the Business is presently conducted or any jurisdiction where the Business is anticipated to be conducted, (v) the Company has not infringed, violated, diluted, misappropriated or otherwise violated any Proprietary Rights of any third Person and no Majority Stockholder nor the Company has Knowledge of any infringement, misappropriation, violation or dilution which will occur as a result of the continued operation of the Business, anticipated operation of the Business or the consummation of the transactions contemplated by this Agreement and the other documents contemplated hereunder, and (vi) all of the Company’s rights in and to such Proprietary Rights are freely assignable by the Company, including the right to create derivative works.

 

(c)                                   Restrictions .  There are no settlements, injunctions, forbearances to sue, consents, coexistence agreements, judgments, or orders or similar obligations to which the Company is a party or is otherwise bound, which (i) restrict the rights of the Company to use any Proprietary Rights, or (ii) permit third parties to use any Proprietary Rights, which would otherwise infringe any Proprietary Rights.  The Company has not licensed or sublicensed its rights in any Proprietary Rights to others and no royalties, honoraria or other fees are payable by the Company for the use of, or right to use, any Proprietary Rights, except pursuant to one or more of the contracts disclosed on Schedule 4.09(a) and as specifically identified therein.

 

(d)                                  Registrations .  All registrations for Proprietary Rights identified on Schedule 4.10(a) are valid and in force, and any applications to register any unregistered Proprietary Rights so identified are pending and in good standing, all without challenge of any kind and the Company has the right to bring Actions for infringement or unauthorized use of the Proprietary Rights owned by the Company.

 

(e)                                   Patents and Trademarks .  All patents and trademarks included in the Proprietary Rights have been filed in, issued by or registered with the United States Patent and

 

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Trademark Office and, where applicable, the corresponding offices of other countries, have been so filed, registered or issued, as the case may be as shown on such schedule, and have been maintained and renewed in accordance with all applicable provisions of law and administrative regulations in the United States and each such other country.  All trademarks are in use in the form appearing in, and in connection with the goods and services listed in, their respective registration certificates (with respect to registered trademarks) or applications (with respect to unregistered trademarks for which an application has been filed.)  Complete and accurate copies of all Patent and Trademark filings, including all correspondence to and from the United States Patent and Trademark Office and the applicable offices of other countries, have been provided to Buyer.  The Company has used commercially reasonable efforts to protect its rights in such patents and registered and material unregistered trademarks, and there have been no acts or omissions by the Company, the result of which would be to compromise the rights of the Company to apply for or enforce appropriate legal protection of such patents and registered and material unregistered trademarks.

 

(f)                                    Protective Measures .  The Company and the Stockholders have taken reasonable measures to protect the confidentiality of all Confidential Information of the Company, including the trade secrets included in the Proprietary Rights, including requiring all employees, contractors and third persons having accesses thereto to execute written non-disclosure agreements.  No Confidential Information or trade secrets have been disclosed by the Company or authorized to be disclosed by the Company to any third person other than pursuant to a written non-disclosure agreement; and, to the Company’s and Majority Stockholders’ Knowledge, no third person that is a party to any non-disclosure agreement with the Company is in breach of default thereof.  To the Company’s and Majority Stockholders’ Knowledge, no Confidential Information or trade secrets of the Company have been improperly disclosed or misappropriated by another Person.  To the Company’s and Majority Stockholders’ Knowledge, the owners of the Proprietary Rights licensed to the Company have taken all reasonably necessary and desirable actions to properly maintain and protect such Proprietary Rights.  To the Company’s and Majority Stockholders’ Knowledge, no third party is misappropriating, infringing or otherwise violating any Proprietary Rights of the Company, and no such claims are pending against any third party.

 

(g)                                   Software .  The Systems are not comprised of any unlicensed copies of any software.

 

(h)                                  Affiliates .  No current or former director, stockholder, officer, employee or contractor of the Company has or will have, after giving effect to the transactions contemplated by this Agreement, any legal or equitable right, title or interest in or to, or any right to use, directly or indirectly, in whole or in part, any of the Proprietary Rights.

 

(i)                                      Personal Information .  To the Company’s and Majority Stockholders’ Knowledge, the Company is in compliance with all applicable Laws, programs and notices relating to the privacy of personal information.  The Company uses commercially reasonable efforts to protect the privacy and security of all personal information in the possession of the Business, whether in written or electronic form.

 

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4.11                         Systems.

 

(a)                                  Schedule 4.11(a)  lists all of the computer and telephone systems, including the software, hardware, networks and interfaces (collectively, “ Systems ”) used or currently planned to be used in the conduct of the Business.  All such Systems are sufficient for the current needs of the Company, including, without limitation, as to capacity and ability to process current and anticipated peak product volumes in a timely manner, subject to expenditures contemplated by the Company’s current budget and to continued investment in Systems in the ordinary course.

 

(b)                                  Except as set forth on the attached Schedule 4.11(b) , all Systems, other than software, used in the Business are owned and operated by and are under the control of the Company and are not wholly or partly dependent on any facilities that are not under the ownership, operation or control of the Company.

 

4.12                         Governmental Licenses and Permits.

 

Schedule 4.12 sets forth a complete listing and summary description of all Permits issued to or held by (or, if noted, required to be issued to or held by) the Company, (including all applications therefor and all renewals, extensions, or modifications thereof and additions thereto) that are necessary or material to conduct the Business as currently conducted or proposed to be conducted by the Company.  All fees and charges with respect to such Permits have been paid in full and each such Permit is current and unencumbered with no history of any form of material disciplinary action taken against it by any Governmental Entity.  No loss or expiration of any such Permit is pending, reasonably foreseeable or, to any Majority Stockholder’s or the Company’s Knowledge, threatened (including as a result of the transactions contemplated by this Agreement and the other documents contemplated hereunder) other than by reason of expiration in accordance with the terms thereof.

 

4.13                         Employees.

 

(a)                                  To Majority Stockholders’ and the Company’s Knowledge, no employee or independent contractors of the Company and no group of employees or independent contractors of the Company has any plans to terminate his or its employment or relationship with the Company.  Schedule 4.13(a) lists any executive, key employee or key independent contractor whose employment or relationship with the Company terminated since December 31, 2011.

 

(b)                                  To the Company’s and Majority Stockholders’ Knowledge, the Company has complied with all applicable Laws relating to the employment of personnel and labor, including, but not limited to, ERISA, the Fair Labor Standards Act, the Age Discrimination in Employment Act, the Americans with Disabilities Act, provisions thereof relating to wages, hours, equal opportunity, collective bargaining and the payment of social security, Medicare, and other Taxes, including withholding requirements, the Worker Adjustment Retraining and Notification Act of 1988, as amended, or any similar state or local plant closing or mass layoff statute, rule or regulation, the Immigration Reform and Control Act of 1986, as amended, and characterizing individuals as independent contractors.  Except as disclosed in Schedule 4.13(b) , no employee of the Company has any agreement regarding his or her employment, other than an agreement for at-will employment.

 

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(c)                                   Except as disclosed in Schedule 4.13(c) , for the last three (3) years through the Closing Date, the Company has not: (i) been bound by or entered into any written or oral contract, agreement, or collective bargaining agreement with any labor organization or other representative of any employees of the Company, except as disclosed on Schedule 4.09(a) , (ii) experienced any strike, work stoppage, or lockout, and none has been threatened in writing, (iii) been the subject of any grievance, unfair labor practice claim, charge of discrimination, or other material employee or labor dispute, (iv) engaged in any unfair labor practice, (v) been the subject of any organizational effort made or threatened by or on behalf of any labor union with respect to employees of the Company, except as related to the collective bargaining agreements, if any, disclosed on Schedule 4.09(a) , or (vi) leased any employees.  The Company has satisfied any notice or bargaining obligation it may have under any Law or collective bargaining agreement to any employee representative.

 

(d)                                  Except as disclosed in Schedule 4.13(d) , there are no outstanding rights or obligations relating to pensions, Benefit Plans, severance or termination pay, workers compensation, unemployment compensation and/or other obligation to employees or independent contractors of the Company.

 

(e)                                   Schedule 4.13(e)  sets forth the name, start date, title or position, citizenship and the annual or, as the case may be, hourly rate of compensation (including salary, bonuses and commissions), as of the date of this Agreement and at the Closing Date, for each individual engaged by the Company as an employee or independent contractor whose annual income (of all types) from the Company has exceeded or is expected to exceed $25,000.

 

4.14                         Immigration Matters.

 

Except as set forth on Schedule 4.14 :

 

(a)                                  To the Company’s and Majority Stockholders’ Knowledge, the Company has properly utilized Form I-9 to verify the identity and work authorization status of each of its employees in compliance with the Immigration and Nationality Act, as amended, the Immigration Reform and Control Act of 1986, as amended, and related promulgating regulations.  No employee of the Company presented any temporary work authorization document at the time of hire that is presently or at any future date will be subject to I-9 re-verification.

 

(b)                                  No employee of the Company is employed under an H-1B, L-1A or L-1B visa, or any other employer-petitioned non-immigrant U.S. work authorization.

 

(c)                                   The Company is not petitioning for employment-based lawful permanent residence status on behalf of any employee of the Company and the Company has not filed any Application for Alien Employment Certification (ETA Form 750), Application for Permanent Employment Certification (ETA Form 9089), or any Form I-140 (Immigrant Petition for Alien Workers) that remains pending.

 

(d)                                  Schedule 4.14 contains a list and description of any correspondence received by the Company from any Person or Governmental Entity in the last three (3) years questioning the validity of the social security number of any employee of the Company.

 

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4.15                         Employee Benefit Plans.

 

(a)                                  Schedule 4.15(a)  contains a complete and correct list of each Benefit Plan.

 

(b)                                  Each Benefit Plan (and each related trust, insurance contract, or fund) has been maintained, funded and administered in all material respects in accordance with the terms of such Benefit Plan and the terms of any applicable collective bargaining agreement and, to the Company’s and Majority Stockholders’ Knowledge, complies in form and in operation with the applicable requirements of ERISA, the Code and other applicable Laws.

 

(c)                                   Neither the Company nor any ERISA Affiliate maintains, sponsors, contributes to, has any obligation to contribute to, or has any Liability or potential Liability under or with respect to, any Multiemployer Plan or any Employee Pension Benefit Plan subject to Code Sections 412 or 4971, ERISA Section 302 or Title IV of ERISA, or otherwise has any Liability or potential Liability under Title IV of ERISA.  There is no Lien pursuant to ERISA Sections 303(k) or 4068 or Code Sections 412(n) (as in effect prior to its repeal) or 430(k) in favor of, or enforceable by the Pension Benefit Guaranty Corporation or any other entity with respect to any of the assets of the Company.  No cash or bond or other amount is payable by the Company or any ERISA Affiliate to the Pension Benefit Guaranty Corporation pursuant to Section 4062(e) of ERISA.

 

(d)                                  All required reports and descriptions (including Form 5500 annual reports, summary annual reports, and summary plan descriptions) with respect to each Benefit Plan have been properly and timely filed and/or distributed to participants and other applicable individuals in accordance with the applicable requirements of ERISA and the Code.

 

(e)                                   Neither the Company nor any ERISA Affiliate maintains, sponsors, contributes to or has any obligation to contribute to, or has any Liability or potential Liability with respect to, any Employee Welfare Benefit Plan providing health or life insurance or other welfare-type benefits for current or future retired or terminated employees (or any spouse or other dependent thereof) other than in accordance with COBRA.  The requirements of COBRA have been met with respect to each Benefit Plan and to each Employee Welfare Benefit Plan maintained by an ERISA Affiliate that is subject to COBRA.

 

(f)                                    The Company has complied with the applicable requirements of HIPAA and HITECH that apply to each Benefit Plan that is an Employee Welfare Benefit Plan.

 

(g)                                   All contributions (including all employer contributions and employee salary reduction contributions) that are due have been made within the time periods prescribed by ERISA and the Code to each Benefit Plan that is an Employee Pension Benefit Plan and all contributions for any period ending on or before the Closing Date that are not yet due have been made to each such Employee Pension Benefit Plan or properly accrued.  All premiums or other payments for all periods ending on or before the Closing Date have been paid with respect to each Benefit Plan that is an Employee Welfare Benefit Plan.

 

(h)                                  Each Benefit Plan that is an Employee Pension Benefit Plan and that is intended to meet the requirements of a “qualified plan” under Code Section 401(a) is so qualified with respect to any qualification requirement for which the applicable remedial amendment

 

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period has closed and has been determined by the Internal Revenue Service to be so qualified, either through receipt of a current favorable determination letter or through proper reliance on an opinion or advisory letter issued by the Internal Revenue Service with respect to such Employee Pension Benefit Plan, and nothing has occurred since the date of such determination, opinion or advisory letter that could adversely affect the qualified status of any such Employee Pension Benefit Plan.  All such Employee Pension Benefit Plans have been timely amended for the requirements of the Tax legislation commonly known as “EGTRRA” and other interim Tax legislation.

 

(i)                                      There have been no Prohibited Transactions with respect to any Benefit Plan.  No fiduciary as defined in ERISA Section 3(21) has any Liability for breach of fiduciary duty or any other failure to act or comply in connection with the administration or investment of the assets of any Benefit Plan.  No Proceeding with respect to the administration or the investment of the assets of any Benefit Plan (other than routine claims for benefits) is pending or threatened and there is no basis for any such Proceeding.

 

(j)                                     The Company is not obligated under the Benefit Plans (including, but not limited to, any nonqualified deferred compensation plan or arrangement) or otherwise to pay any separation, severance, termination or similar benefit as a result of any transactions contemplated by this Agreement or solely as a result of a change in control or ownership with the meaning of Section 280G of the Code.  Neither the execution of this Agreement, nor the consummation of the transactions contemplated by this Agreement, will increase the amount of benefits otherwise payable under any Benefit Plan or result in the acceleration of the time of payment, funding or vesting of any such benefits.

 

(k)                                  With respect to each Benefit Plan, the Company has delivered to Buyer correct and complete copies of the material plan documents (including amendments and individual agreements relating thereto), and the most recent summary plan descriptions and summaries of material modifications, the most recent favorable determination letter, or opinion letter or advisory letter received from the Internal Revenue Service, the Form 5500 Annual Reports (including all schedules thereto) with all applicable attachments for the last three plan years, and all related trust agreements, insurance contracts, and other funding arrangements, including any collective bargaining agreements, that implement each such Benefit Plan, the most recent financial statements and valuation statements for each such Benefit Plan, and, for each such Benefit Plan that is intended to meet the requirements of a “qualified plan” under Code Section 401(a), the coverage and nondiscrimination testing results for the last three Benefit Plan years.  The Company is not obligated to establish a new Benefit Plan, or to amend a Benefit Plan to increase the amount of benefits provided under such Benefit Plan, or to amend a Benefit Plan to change the eligibility rules for such Benefit Plan.

 

(l)                                      Except as required by any Law, no provision or condition exists that would prevent the Company or Buyer from terminating or amending any Benefit Plan at any time for any reason.

 

(m)                              Each Benefit Plan that is a “nonqualified deferred compensation plan” (as defined in Section 409A of the Code and the regulations thereunder) meets, and has been operated in good faith in accordance with, the requirements of Sections 409A(a)(2), (a)(3), and

 

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(a)(4) of the Code, and no assets of the Company have been directly or indirectly set aside in a trust or other arrangement described in Section 409A(b)(1) of the Code or are, or have been, subject to a “financial health” trigger described in Section 409A(b)(2) of the Code.

 

(n)                                  The Company and each ERISA Affiliate have, for purposes of each Benefit Plan, correctly classified those individuals performing services for the Company or the respective ERISA Affiliate as common law employees, leased employees, independent contractors or agents.

 

4.16                         Medicare and Medicaid Participation .

 

(a)                                  The Company is eligible for participation in the Medicare, Medicaid and CHAMPUS/TRICARE programs (collectively, the “ Government Programs ”) and has current and valid provider contracts with such Government Programs.  The Company is in compliance with the conditions of participation for the Government Programs in all respects.  There is neither pending, nor, to the Company’s or a Majority Stockholder’s Knowledge, threatened, any Action under the Government Programs involving the Company.  The Majority Stockholders have made available to Buyer true and complete copies of the most recent Government Program survey reports and all plans of correction, if any, which Company was required to submit in response to such surveys, and all such plans of correction have been accepted by the applicable Government Program and all have been or are in the process of being implemented.  Company’s billing practices for all third party payors, including the Government Programs and private insurance companies, are in compliance in all material respects with applicable Law and billing requirements of such third party payors and Government Programs and the Company has not knowingly billed or received any material payment or reimbursement in excess of amounts allowed by Law.  Schedule 4.16 contains a list of all of the Company’s Government Program provider numbers and other third party payor provider numbers.

 

(b)                                  Company has: (i) timely filed all reports and billings required to be filed with respect to any Government Program or any third-party payor (all of which are complete and accurate in all material respects and prepared and filed in compliance with applicable Law), and (ii) paid or caused to be paid any undisputed refunds, overpayments, discounts, or adjustments that have become due pursuant to such reports and billings.

 

4.17                         Compliance Program.

 

(a)                                  The Company has continuously maintained a compliance program designed to promote compliance with applicable Laws and ethical standards, to improve the quality and performance of operations, and to detect, prevent, and address violations of legal or ethical standards applicable to its operations (the “ Compliance Program ”).  The Company is in material compliance with the terms of the Compliance Program and Buyer has been given access to all records and logs maintained by the Company in connection with the Compliance Program.

 

(b)                                  The Company periodically searches the Office of Inspector General’s List of Excluded Individuals/Entities and other websites or databases of Governmental Entities to confirm that its employees, independent contractors, consultants and other Persons providing any services under any Contracts are not currently excluded, debarred or otherwise ineligible to

 

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participate in the Government Programs.  Except as set forth on Schedule 4.17(b) , to the Company’s or a Majority Stockholder’s Knowledge, the Company has not employed or contracted with any Person that is excluded, debarred or otherwise ineligible to participate in the Government Programs.  Additionally, the Company has not received notice that (i) any Person providing services to the Company, or (ii) any employee or contractor in either case of (i) or (ii), is charged with or has been convicted of a criminal offense related to the Government Programs, or the provision of health care items or services, but has not yet been excluded, debarred or otherwise declared ineligible to participate in such programs or is proposed for exclusion therefrom.

 

(c)                                   The Company (i) is not a party to a corporate integrity agreement with the Office of the Inspector General of the Department of Health and Human Services, (ii) has not been subject to reporting obligations pursuant to any settlement agreement entered into with any Governmental Entity, (iii) has not been the subject of any government payor program investigation conducted by any Governmental Entity, (iv) has not been a defendant in any qui tam/False Claims Act litigation, and (v) has not been served with or received any search warrant, subpoena, civil investigation demand, contact letter, or, to the Company’s or any Majority Stockholder’s Knowledge, has received telephone or personal contact by or from any Governmental Entity.

 

(d)                                  All employees and independent contractors of the Company that provide the type of service under any Contract or in the operation of the Business as currently conducted or as proposed to be conducted that requires, as a condition precedent to the rendering of the service, the obtaining of a license or other legal authorization issued by a Governmental Entity are properly licensed or otherwise legally authorized by a Governmental Entity to perform the service in the state or jurisdiction in which the service is being performed.

 

4.18                         HIPAA Compliance .

 

Company is a “Covered Entity” (as defined in HIPAA) and is in material compliance with HIPAA and HITECH.

 

4.19                         Compliance with Laws.

 

(a)                                  Except as set forth on Schedule 4.19 , the Company and, to the Company’s and Majority Stockholders’ Knowledge, each of its independent contractors, agents and employees has complied with and is in compliance with all applicable Laws which affect the Business or to which the Company is subject, and no claim has been filed against the Company alleging a violation of any such Law and the Company has not received written notice of any violation or alleged violation of, or any obligation to take remedial action under, any applicable Law or Permit.  Except as set forth on Schedule 4.19 , the Company is not now, directly or indirectly, subject (or has the Company ever been subject) to any Proceeding, investigation, penalty assessment, or audit by any Governmental Entity or to any other allegation that the Company has violated the regulations of any such Governmental Entity or made a material false statement or omission to any Governmental Entity, including those related to government procurement.

 

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(b)                                  Company has filed all regulatory reports, schedules, statements, documents, filings, submissions, forms, registrations, and other documents, together with any amendments required to be made thereto, required to be filed with any Governmental Entity, and have paid all material fees, assessments due and payable in connection therewith.

 

4.20                         Affiliate Transactions.

 

Other than as described on Schedule 4.20 , no Stockholder and no Related Person or Affiliate of any Stockholder or of the Company (a) is or was a party to any Contract or transaction with the Company (other than in such Person’s capacity as an employee of the Company, the compensation for which is reflected on Schedule 4.13(e) ), or (b) has any interest in or owns any asset, tangible or intangible, which is used in the Business of the Company.

 

4.21                         Environmental Matters.

 

Except as set forth on Schedule 4.21 :

 

(a)                                  Regulatory Compliance .  The Company has complied with and is in compliance with all Environmental and Safety Requirements.

 

(b)                                  Permits .  The Company has complied with and is in compliance with all permits, licenses and other authorizations that are required pursuant to Environmental and Safety Requirements for the occupation of its facilities and the operation of the Business (“ Environmental Permits ”) and, to the extent required prior to the Closing Date, timely and complete applications have been or will be made for renewal, extension, or reissuance of all such Environmental Permits, and the Company has not received information which would lead it to believe that any Environmental Permit may not be renewed, extended or reissued in due course and as requested without the imposition of cost or penalty.  Schedule 4.21 contains a list of all such Environmental Permits.

 

(c)                                   Notices .  The Company has not received any notice, claim, complaint, citation, report or other information regarding any actual or alleged violation of Environmental and Safety Requirements or any Liabilities or potential Liabilities (whether accrued, absolute, contingent, unliquidated or otherwise), including any investigatory, remedial or corrective obligations and any request for information with respect to any investigation or clean-up of Hazardous Substances, arising under Environmental and Safety Requirements relating to the Company or the Business, nor is there any Proceeding pending or, to the Company’s and Majority Stockholders’ Knowledge, threatened against or affecting the Company or the Business at law or in equity before a court or administrative agency relating to a violation of any Environmental and Safety Requirement.

 

(d)                                  Release of Substances .  The Company has not treated, stored, disposed of, arranged for or permitted the disposal of, transported, handled, or released any substance, including, without limitation, any Hazardous Substance, or owned or operated any property or facility (and no such property or facility is contaminated by any Hazardous Substance) in a manner that has given rise to or would give rise to Liabilities, including any Liability for response costs, corrective action costs, personal injury, property damage, natural resource damages or attorney fees, pursuant to the Comprehensive Environmental Response,

 

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Compensation, and Liability Act of 1980, as amended, the Solid Waste Disposal Act, as amended, or any other Environmental and Safety Requirement.

 

(e)                                   Operations .  No facts, events or conditions relating to the assets of the Company or the Business or the past or present facilities, properties or operations of the Company will prevent, hinder or limit continued compliance with Environmental and Safety Requirements, give rise to any investigatory, remedial or corrective obligations pursuant to Environmental and Safety Requirements, or give rise to any other Liabilities (whether accrued, absolute, contingent, unliquidated or otherwise) pursuant to Environmental and Safety Requirements, including any Environmental and Safety Requirement relating to onsite or offsite release or threatened release of Hazardous Substances, personal injury, property damage or natural resources damage.

 

(f)                                    Transaction-Triggered Requirements .  Neither the execution and delivery of this Agreement nor the consummation of the transaction contemplated by this Agreement will impose any obligations for site investigation or cleanup, or notification to or consent of Governmental Entity or any other Person, pursuant to any so-called “transaction-triggered” or “responsible property transfer” Environmental and Safety Requirement.

 

(g)                                   Liability for Others .  The Company has not, either expressly or by operation of Law, assumed or undertaken any Liability or corrective or remedial obligation of any other Person relating to Environmental and Safety Requirements.

 

(h)                                  Environmental Liens .  No Environmental Lien has attached the Leased Real Property located at 31 Moody Road, Enfield, Connecticut and to the Company’s and the Majority Stockholders’ Knowledge, no Environmental Lien has attached to the Leased Real Property located at 95 Ashley Avenue, West Springfield, Massachusetts.

 

(i)                                      Environmental Reports .  The Company has provided to Buyer true and correct copies of all environmental reports, audits, assessments, and investigations, and all other material environmental documents, relating to the Company, the Real Property, any other real property owned or used by the Company, the Business or any of the Company’s predecessors.

 

4.22                         Tangible Assets.

 

(a)                                  Except as set forth on Schedule 4.22(a) , the Company owns or leases, free and clear of Liens, all machinery, equipment, and other tangible assets necessary for, or used in, the conduct of the Business as presently conducted and as presently proposed to be conducted.

 

(b)                                  Each such tangible asset is free from material defects (patent and latent), has been maintained in all material respects in accordance with normal industry practice, is in good operating condition and repair (subject to normal wear and tear), and is suitable in all material respects for the purposes for which it presently is used and presently is proposed to be used.

 

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4.23                         Undisclosed Liabilities.

 

The Company does not have any Liability (and there is no basis for any present or future Proceeding against it giving rise to any Liability), except for (i) Liabilities set forth on the face of the Interim Financial Statements (rather than in any notes thereto), and (ii) Liabilities which have arisen after the Interim Financial Statements in the ordinary course (none of which results from, arises out of, relates to, is in the nature of, or was caused by any breach of contract, breach of warranty, tort, environmental matter, infringement, or violation of Law).

 

4.24                         Notes and Accounts Receivable.

 

All notes and accounts receivable of the Company are reflected properly on the books and records of the Company, are valid receivables subject to no setoffs, counterclaims, or rebates, are current and collectible, and will be collected in accordance with their terms at their recorded amounts .

 

4.25                         Powers of Attorney.

 

Except as set forth on Schedule 4.25 , there are no outstanding powers of attorney executed on behalf of the Company.

 

4.26                         Insurance.

 

Schedule 4.26 sets forth the following information with respect to each insurance policy (including policies providing property, vehicle, casualty, Liability, and workers’ compensation coverage and bond and surety arrangements and insurance certificates (including coverage for inventory purchased domestically and internationally)) to which the Company is a party, a named insured, or otherwise the beneficiary of coverage:

 

(a)                                  the name, address, and telephone number of the agent;

 

(b)                                  the name of the insurer, the name of the policyholder, and the name of each covered insured;

 

(c)                                   the policy number and the period of coverage;

 

(d)                                  the scope (including an indication of whether the coverage was on a claims made, occurrence, or other basis) and amount (including a description of how deductibles and ceilings are calculated and operate) of coverage; and

 

(e)                                   a description of any retroactive premium adjustments or other loss-sharing arrangements.

 

Current certificates of insurance for each such insurance policy are attached at Schedule 4.26 .  With respect to each such insurance policy: (A) the policy is legal, valid, binding, enforceable, and in full force and effect, (B) the policy will continue to be legal, valid, binding, enforceable, and in full force and effect following the consummation of the Closing and the transactions contemplated in connection therewith without any further action being taken by the Company,

 

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(C) neither the Company nor any other party to the policy is in breach or default (including with respect to the payment of premiums or the giving of notices), and no event has occurred which, with notice or the lapse of time, would constitute such a breach or default, or permit termination, modification, or acceleration, under the policy, (D) no party to the policy has repudiated any provision thereof, and (E) the Majority Stockholders have provided to Buyer true and complete copies thereof.  The Company has been covered during the past five years by insurance in scope and amount customary and reasonable considering the size of the Company and the scope of the Business as currently conducted and proposed to be conducted.

 

4.27                         Service Liability Claims.

 

(a)                                  Except as set forth on Schedule 4.27(a) , there are no Service Liability Claims.

 

(b)                                  Except (i) as set forth on Schedule 4.27(b) , (ii) for conditions or warranties implied or imposed by any applicable Law, or (iii) as contained in the Company’s standard terms and conditions of sale or service, the Company has not given any warranty or made any representation in respect of products or service supplied, sold or leased by it.

 

(c)                                   Except (i) as set forth on Schedule 4.27(c) , and (ii) except as otherwise occurs in the ordinary course, each service rendered by the Company has been in material conformity with all applicable contractual commitments and all express and implied warranties.

 

(d)                                  Schedule 4.27(d)  includes copies of the standard terms and conditions of sale and/or service for the Company (which includes any continuing applicable guaranty, warranty and indemnity provisions).

 

4.28                         Customers.

 

(a)                                  Schedule 4.28(a)  lists each of the customers of the Company whose purchases of goods or services in the past year have exceeded 5% of the total revenues of the Company for that period.

 

(b)                                  Except as set forth on Schedule 4.28(b) , no customer listed on Schedule 4.28(a) (x) has stopped or materially decreased, (y) has threatened to stop, or materially decrease the rate of, or (z) as a result of the transactions contemplated by this Agreement, is reasonably likely to stop or materially decrease the rate of, purchasing materials, products or services from the Company.

 

4.29                         Suppliers .

 

(a)                                  Schedule 4.29(a)  lists each of the suppliers of the Company whose goods or services provided to the Company in the past year have exceeded 5% of the total cost of goods and/or services provided by such suppliers to the Company for that period.

 

(b)                                  Except as set forth on Schedule 4.29(b) , no supplier listed on Schedule 4.29(a) (x) has stopped or materially decreased, (y) has threatened to stop, or materially decrease the rate of, or (z) as a result of the transactions contemplated by this Agreement, is

 

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reasonably likely to stop or materially decrease the rate of, supplying materials, products or services to the Company.

 

4.30                         Officers and Directors.

 

Schedule 4.30 lists all officers and directors of the Company.

 

4.31                         Bank Accounts.

 

Schedule 4.31 lists each bank account (designating each authorized signatory and the level of each signatory’s authorization) of the Company.

 

4.32                         Litigation.

 

Schedule 4.32 lists all civil or criminal litigation, arbitration, mediation or other Proceedings to which the Company, any stockholder, or any director, officer, or employee of the Company is or was a party that currently is pending, was settled or adjudicated within the past five years, was settled and adjudicated more than five years ago, but with respect to which the Company has unsatisfied Liability, any written claim received by the Company that could reasonably be expected to result in a Proceeding, or that, to the Knowledge of the Company or the Majority Stockholders, are threatened.  Schedule 4.32 sets forth, with respect to each matter disclosed on such schedule, (i) the parties, (ii) the nature of dispute, (iii) the relief sought (including the approximate amount of damages or other relief sought), (iv) the status of dispute, (v) the extent to which the Company’s insurance would cover the relief, and (vi) the Company’s assessment of its likelihood of prevailing.  No matter disclosed on Schedule 4.32 , if decided or settled unfavorably to the Company, could prevent or adversely affect the consummation of the transactions contemplated under this Agreement, result in any transactions contemplated under this Agreement being declared unlawful or rescinded or have a Material Adverse Effect.

 

4.33                         Books and Records.

 

(a)                                  The books of account and other records of the Company, all of which have been made available to Buyer, are complete and correct, represent actual, bona fide transactions, and have been maintained in accordance with sound business practices.

 

(b)                                  The minute books of the Company contain complete and correct records of all meetings held of, and actions taken by written consent of, the holders of voting securities, the board of directors or Persons exercising similar authority, and committees of the board of directors or such Persons of the Company, and no meeting of any such holders, board of directors, Persons, or committee has been held, and no other action has been taken, for which minutes or other evidence of action have not been prepared and are not contained in such minute books.  The Company has at all times maintained complete and correct records of all issuances and transfers of its equity interests.  At the Closing, all such minute books and records will be in the possession of the Company and located at the principal office of the Company.

 

4.34                         Company Broker.

 

Except as set forth on Schedule 4.34 , there are no claims for brokerage commissions,

 

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finders’ fees or similar compensation in connection with the transactions contemplated by this Agreement and the other documents contemplated hereunder based on any arrangement or agreement made by or on behalf of the Company.

 

4.35                         Disclosure.

 

The Company does not have any Knowledge of any facts pertaining to the Company which could have a Material Adverse Effect and which have not been disclosed in this Agreement.  Neither this Agreement nor any other documents contemplated hereunder to which the Company is a party, nor any of the schedules or exhibits hereto or thereto, contains any untrue statement of a material fact or, when considered as a whole, omits a material fact necessary to make the statements contained herein or therein, in light of the circumstances in which they were made, not misleading.  All statements and information contained in any certificate, instrument, disclosure schedule or documents delivered by or on behalf of the Company to Buyer or its representatives pursuant to this Agreement will be deemed representations and warranties of the Company.

 

ARTICLE V.

REPRESENTATIONS AND WARRANTIES OF BUYER

 

As a material inducement to the Company and the Stockholders to enter into this Agreement and to consummate the transactions contemplated hereunder, Buyer makes the representations and warranties set forth in this ARTICLE V as of the Closing Date.

 

5.01                         Organization and Power.

 

Buyer is a corporation duly incorporated, validly existing and in good standing under the laws of the State of Michigan and is qualified to do business in every jurisdiction in which the execution, delivery and performance of its obligations under this Agreement requires it to be so qualified.  Buyer has full corporate power and authority to execute, deliver and perform its obligations under this Agreement and the other documents contemplated hereunder to which Buyer is a party.

 

5.02                         Authorization.

 

No other proceedings or actions on the part of Buyer are necessary to approve and authorize Buyer’s execution and delivery of this Agreement or any other document contemplated hereunder to which Buyer is a party or the performance of Buyer’s obligations hereunder or thereunder.  This Agreement constitutes, and each of the other documents contemplated hereunder to which Buyer is a party will, when executed, constitute a valid and binding obligation of Buyer, enforceable in accordance with their terms, except as enforceability hereof may be limited by bankruptcy, insolvency or other laws affecting creditor’s rights generally and limitations on the availability of equitable remedies.

 

5.03                         Absence of Conflicts.

 

Neither the execution, delivery and performance of this Agreement or any other document contemplated hereunder by Buyer, nor the consummation by Buyer of the transactions

 

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contemplated hereby or thereby does or will: (i) conflict with or result in a breach of any of the provisions of, (ii) constitute a default under, (iii) result in the violation of, (iv) give any third party the right to terminate or to accelerate any obligation under, or (v) require any consent, order, approval, authorization or other action of, or any filing with or notice to, any Governmental Entity or other Person, in each case under the provisions of any indenture, mortgage, lease, loan agreement or other agreement or instrument to which Buyer is bound or by which it or any of its assets are affected, or any Law to which Buyer is subject.

 

5.04                         Buyer’s Broker.

 

There are no claims for brokerage commissions, finders’ fees or similar compensation in connection with the transactions contemplated by this Agreement and the other documents contemplated hereunder based on any arrangement or agreement made by or on behalf of Buyer, except pursuant to Buyer’s agreement with EP Securities LLC.

 

5.05                         Availability of Funds.

 

As of the date of this Agreement, Buyer has cash available and/or sufficient availability under its current credit facilities to provide all funds necessary at Closing to consummate the transactions contemplated hereby.

 

ARTICLE VI.

CONDITIONS TO CLOSING

 

6.01                         Conditions to Obligations of All Parties.

 

The obligations of each party to consummate the transactions contemplated by this Agreement shall be subject to the fulfillment, at or prior to the Closing, of each of the following conditions:

 

(a)                                  No Governmental Entity shall have enacted, issued, promulgated, enforced or entered any Governmental Order which is in effect and has the effect of making the transactions contemplated by this Agreement illegal, otherwise restraining or prohibiting consummation of such transactions or causing any of the transactions contemplated hereunder to be rescinded following completion thereof.

 

(b)                                  The Stockholders and the Company shall have received all consents, authorizations, orders and approvals referred to in Sections 3.02 and 4.04 , respectively, from all applicable Governmental Entities and Buyer shall have received all consents, authorizations, orders and approvals referred to in Section 5.03 from all applicable Governmental Entities, in each case, in form and substance reasonably satisfactory to Buyer and Stockholders, and no such consent, authorization, order and approval shall have been revoked.

 

6.02                         Conditions to Obligations of Buyer.

 

The obligations of Buyer to consummate the transactions contemplated by this Agreement shall be subject to the fulfillment or Buyer’s waiver, at or prior to the Closing, of each of the following conditions:

 

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(a)                                  The representations and warranties of the Stockholders and the Company contained in this Agreement and any certificate or other writing delivered pursuant hereto shall be true and correct in all respects (in the case of any representation or warranty qualified by materiality or Material Adverse Effect) or in all material respects (in the case of any representation or warranty not qualified by materiality or Material Adverse Effect) on and as of the date hereof and on and as of the Closing Date with the same effect as though made at and as of such date (except those representations and warranties that address matters only as of a specified date, the accuracy of which shall be determined as of that specified date in all respects).  Notwithstanding the foregoing, the representations and warranties regarding the Company contained in Sections 3.01 , 3.03 , 3.04 , 4.01 , 4.02 , 4.03 , 4.05 and 4.34 shall be true and correct in all respects on and as of the date hereof and on and as of the Closing Date with the same effect as though made at and as of such date (except those representations and warranties that address matters only as of a specified date, the accuracy of which shall be determined as of that specified date in all respects).

 

(b)                                  Stockholders and the Company shall have duly performed and complied in all material respects with all agreements, covenants and conditions required by this Agreement to be performed or complied with by each prior to or on the Closing Date; provided, that, with respect to agreements, covenants and conditions that are qualified by materiality, Stockholders and the Company shall have performed such agreements, covenants and conditions, as so qualified, in all respects.

 

(c)                                   No Action shall have been commenced against Buyer, the Stockholders or the Company, which would prevent the Closing. No injunction or restraining order shall have been issued by any Governmental Entity, and be in effect, which restrains or prohibits any transaction contemplated hereby.

 

(d)                                  All governmental and third party consents, approvals and waivers that are listed on Schedule 4.04 shall have been received delivered to Buyer, on terms satisfactory to Buyer.

 

(e)                                   From the date of this Agreement, there shall not have occurred any Material Adverse Effect, nor shall any event or events have occurred that, individually or in the aggregate, with or without the lapse of time, could reasonably be expected to result in a Material Adverse Effect.

 

(f)                                    Buyer shall have obtained financing in amounts sufficient to permit Buyer to fund the Purchase Price and operate the Business following the Closing on terms and conditions satisfactory to Buyer.

 

(g)                                   Buyer shall have received the closing deliveries of the Stockholders set forth in Section 2.02(b) .

 

6.03                         Conditions to Obligations of Stockholders.

 

The obligations of the Stockholders to consummate the transactions contemplated by this Agreement shall be subject to the fulfillment or Stockholders’ waiver, at or prior to the Closing, of each of the following conditions:

 

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(a)                                  The representations and warranties of the Buyer contained in this Agreement and any certificate or other writing delivered pursuant hereto shall be true and correct in all respects (in the case of any representation or warranty qualified by materiality or Material Adverse Effect) or in all material respects (in the case of any representation or warranty not qualified by materiality or Material Adverse Effect) on and as of the date hereof and on and as of the Closing Date with the same effect as though made at and as of such date (except those representations and warranties that address matters only as of a specified date, the accuracy of which shall be determined as of that specified date in all respects).  Notwithstanding the foregoing, the representations and warranties regarding the Buyer contained in Sections   5.01 and 5.02 shall be true and correct in all respects on and as of the date hereof and on and as of the Closing Date with the same effect as though made at and as of such date (except those representations and warranties that address matters only as of a specified date, the accuracy of which shall be determined as of that specified date in all respects).

 

(b)                                  Buyer shall have duly performed and complied in all material respects with all agreements, covenants and conditions required by this Agreement to be performed or complied with by it prior to or on the Closing Date; provided, that, with respect to agreements, covenants and conditions that are qualified by materiality, Buyer shall have performed such agreements, covenants and conditions, as so qualified, in all respects.

 

(c)                                   Stockholders shall have received the closing deliveries of the Buyer set forth in Section 2.02(a) .

 

ARTICLE VII.

COVENANTS

 

7.01                         Conduct of Business Prior to the Closing.

 

From the date hereof until the Closing, except as otherwise provided in this Agreement or consented to in writing by Buyer (which consent shall not be unreasonably withheld or delayed), Stockholders shall, and shall cause the Company to, (x) conduct the business of the Company in the ordinary course of business consistent with past practice; and (y) use reasonable best efforts to maintain and preserve intact the current organization, business and franchise of the Company and to preserve the rights, franchises, goodwill and relationships of its employees, customers, lenders, suppliers, regulators and others having business relationships with the Company. Without limiting the foregoing, from the date hereof until the Closing Date, Stockholders shall:

 

(a)                                  cause the Company to preserve and maintain all of its Permits;

 

(b)                                  cause the Company to pay its debts, Taxes and other obligations when due;

 

(c)                                   cause the Company to maintain the properties and assets owned, operated or used by the Company in the same condition as they were on the date of this Agreement, subject to reasonable wear and tear;

 

(d)                                  cause the Company to continue in full force and effect without modification all insurance policies, except as required by applicable Law;

 

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(e)                                   cause the Company to defend and protect its properties and assets from infringement or usurpation;

 

(f)                                    cause the Company to perform all of its obligations under all Contracts relating to or affecting its properties, assets or business;

 

(g)                                   cause the Company to maintain its books and records in accordance with past practice;

 

(h)                                  cause the Company to comply in all material respects with all applicable Laws; and

 

(i)                                      cause the Company not to take or permit any action that would cause any of the changes, events or conditions described in Section 4.06 to occur.

 

7.02                         Access to Information.

 

From the date hereof until the Closing, Stockholders shall, and shall cause the Company to, (a) afford Buyer and its representatives full and free access to and the right to inspect all of the Real Property, properties, assets, premises, books and records, Contracts and other documents and data related to the Company; (b) furnish Buyer and its representatives with such financial, operating and other data and information related to the Company as Buyer or any of its representatives may reasonably request; and (c) instruct the representatives of Stockholders and the Company to cooperate with Buyer in its investigation of the Company. Any investigation pursuant to this Section 7.02 shall be conducted in such manner as not to interfere unreasonably with the conduct of the business of the Company. No investigation by Buyer or other information received by Buyer shall operate as a waiver or otherwise affect any representation, warranty or agreement given or made by Stockholders or the Company in this Agreement

 

7.03                         No Solicitation of Other Bids.

 

(a)                                  Each Stockholder and the Company shall not, and shall not authorize or permit any of its Affiliates or any of its or their representatives to, directly or indirectly, (i) encourage, solicit, initiate, facilitate or continue inquiries regarding an Acquisition Proposal; (ii) enter into discussions or negotiations with, or provide any information to, any Person concerning a possible Acquisition Proposal; or (iii) enter into any agreements or other instruments (whether or not binding) regarding an Acquisition Proposal. Stockholders shall immediately cease and cause to be terminated, and shall cause its Affiliates and all of its and their representatives to immediately cease and cause to be terminated, all existing discussions or negotiations with any Persons conducted heretofore with respect to, or that could lead to, an Acquisition Proposal. For purposes hereof, “ Acquisition Proposal ” shall mean any inquiry, proposal or offer from any Person (other than Buyer or any of its Affiliates) concerning (i) a merger, consolidation, liquidation, recapitalization, share exchange or other business combination transaction involving the Company; (ii) the issuance or acquisition of shares of capital stock or other equity securities of the Company; or (iii) the sale, lease, exchange or other disposition of any significant portion of the Company’s properties or assets.

 

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(b)                                  In addition to the other obligations under this Section 7.03 , Sellers’ Representative shall promptly (and in any event within two Business Days after receipt thereof by Stockholders, the Company or its representatives) advise Buyer orally and in writing of any Acquisition Proposal, any request for information with respect to any Acquisition Proposal, or any inquiry with respect to or which could reasonably be expected to result in an Acquisition Proposal, the material terms and conditions of such request, Acquisition Proposal or inquiry, and the identity of the Person making the same.

 

(c)                                   Each Stockholder and the Company agrees that the rights and remedies for noncompliance with this Section 7.03 shall include having such provision specifically enforced by any court having equity jurisdiction, it being acknowledged and agreed that any such breach or threatened breach shall cause irreparable injury to Buyer and that money damages would not provide an adequate remedy to Buyer.

 

7.04                         Notice of Certain Events.

 

(a)                                  From the date hereof until the Closing, Sellers’ Representative shall promptly notify Buyer in writing of:

 

(i)                                      any fact, circumstance, event or action the existence, occurrence or taking of which (A) has had, or could reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect, (B) has resulted in, or could reasonably be expected to result in, any representation or warranty made by Stockholders and/or the Company hereunder not being true and correct or (C) has resulted in, or could reasonably be expected to result in, the failure of any of the conditions set forth in Section 6.02 to be satisfied;

 

(ii)                                   any notice or other communication from any Person alleging that the consent of such Person is or may be required in connection with the transactions contemplated by this Agreement;

 

(iii)                                any notice or other communication from any Governmental Entity in connection with the transactions contemplated by this Agreement; and

 

(iv)                               any Actions commenced or, to any Stockholder’s Knowledge, threatened against, relating to or involving or otherwise affecting any Stockholder or the Company that, if pending on the date of this Agreement, would have been required to have been disclosed pursuant to any of the Representations in ARTICLE III or ARTICLE IV of this Agreement or that relate to the consummation of the transactions contemplated by this Agreement.

 

(b)                                  Buyer’s receipt of information pursuant to this Section 7.04 shall not operate as a waiver or otherwise affect any representation, warranty or agreement given or made by Stockholders or the Company in this Agreement and shall not be deemed to amend or supplement the Disclosure Schedules.

 

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7.05                         Governmental Approvals and Consents.

 

(a)                                  Each party hereto shall, as promptly as possible, (i) make, or cause or be made, all filings and submissions required under any Law applicable to such party or any of its Affiliates; and (ii) use reasonable best efforts to obtain, or cause to be obtained, all consents, authorizations, orders and approvals from all Governmental Entities that may be or become necessary for its execution and delivery of this Agreement and the performance of its obligations pursuant to this Agreement. Each party shall cooperate fully with the other party and its Affiliates in promptly seeking to obtain all such consents, authorizations, orders and approvals. The parties hereto shall not willfully take any action that will have the effect of delaying, impairing or impeding the receipt of any required consents, authorizations, orders and approvals.

 

(b)                                  Stockholders, the Company and Buyer shall use reasonable best efforts to give all notices to, and obtain all consents from, all third parties that are described in Schedules 4.04 and 5.03 .

 

(c)                                   Without limiting the generality of the parties’ undertakings pursuant to subsections (a) and (b) above, each of the parties hereto shall use all reasonable best efforts to:

 

(i)                                      respond to any inquiries by any Governmental Entity regarding matters with respect to the transactions contemplated by this Agreement or any agreement or document contemplated hereby;

 

(ii)                                   avoid the imposition of any order or the taking of any action that would restrain, alter or enjoin the transactions contemplated by this Agreement or any agreement or document contemplated hereby; and

 

(iii)                                in the event any Governmental Order adversely affecting the ability of the parties to consummate the transactions contemplated by this Agreement or any agreement or document contemplated hereby has been issued, to have such Governmental Order vacated or lifted.

 

(d)                                  If any consent, approval or authorization necessary to preserve any right or benefit under any Contract to which the Company is a party is not obtained prior to the Closing, Stockholders shall, subsequent to the Closing, cooperate with Buyer and the Company in attempting to obtain such consent, approval or authorization as promptly thereafter as practicable.

 

(e)                                   All analyses, appearances, meetings, discussions, presentations, memoranda, briefs, filings, arguments, and proposals made by or on behalf of either party before any Governmental Entity or the staff or regulators of any Governmental Entity, in connection with the transactions contemplated hereunder (but, for the avoidance of doubt, not including any disclosure which is not permitted by Law or any disclosure containing confidential information) shall be disclosed to the other party hereunder in advance of any filing, submission or attendance, it being the intent that the parties will consult and cooperate with one another, and consider in good faith the views of one another, in connection with any such analyses, appearances, meetings, discussions, presentations, memoranda, briefs, filings, arguments, and proposals.

 

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(f)                                    Notwithstanding the foregoing, nothing in this Section 7.05 shall require, or be construed to require, Buyer or any of its Affiliates to agree to (i) sell, hold, divest, discontinue or limit, before or after the Closing Date, any assets, businesses or interests of Buyer, the Company or any of their respective Affiliates; (ii) any conditions relating to, or changes or restrictions in, the operations of any such assets, businesses or interests which, in either case, could reasonably be expected to result in a Material Adverse Effect or materially and adversely impact the economic or business benefits to Buyer of the transactions contemplated by this Agreement; or (iii) any material modification or waiver of the terms and conditions of this Agreement.

 

7.06                         Press Releases and Announcements.

 

Neither the Stockholders nor the Company shall make any press release or other public announcement of or with respect to this Agreement or any of the transactions contemplated hereunder without Buyer’s prior written consent.

 

7.07                         Closing Conditions.

 

From the date hereof until the Closing, each party hereto shall use reasonable best efforts to take such actions as are necessary to expeditiously satisfy the closing conditions set forth in ARTICLE VI hereof.

 

7.08                         Further Transfers.

 

Each party to this Agreement will execute and deliver such further instruments of transfer and take such additional actions as any other party may reasonably request to effect, consummate, confirm or evidence the transactions contemplated hereby and by the other documents contemplated hereunder.

 

7.09                         Non-Solicitation, Non-Competition and Confidentiality.

 

(a)                                  Non-Solicitation .  In consideration of the transactions contemplated hereby and the payment of the Purchase Price, each Stockholder agrees that, during the period beginning on the Closing Date and ending on the fifth (5 th ) anniversary thereof (the “ Restricted Period ”), such Stockholder will not, directly or indirectly, including causing, encouraging, directing or soliciting any other Person to, contact, approach, or solicit for the purpose of offering employment to or hiring (whether as an employee, consultant, agent, independent contractor or otherwise) or actually hire any Person who is or has been employed or retained in the operation of the Business by the Company or Buyer during the period commencing as of the Closing Date and ending on the date of termination of the Restricted Period, or induce, interfere with or solicit, or attempt to induce, interfere with or solicit, any Person that is a current or former customer, supplier or other business relation of the Company or any predecessor thereof into any business relationship that might harm the Business, or in any manner engage in or own, directly or indirectly, any interest in any business that provides services or products to any current or former customer of the Company that are similar to or competitive with the services or products provided by the Company to such current or former customers.

 

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(b)                                  Non-Competition .  In consideration of the transactions contemplated hereby and the payment of the Purchase Price, each Stockholder agrees that during the Restricted Period, such Stockholder will not, within or with respect to the geographical area of the United States and anywhere else the Company operates or plans to operate during the Restricted Period (the “ Restricted Area ”), directly or indirectly own, operate, lease, manage, control, participate in, consult with, advise, permit such Stockholder’s name to be used by, provide services for, or in any manner engage in (x) any business (including by any Stockholder or in association with any Person) that creates, designs, sources, markets, distributes or sells any product or provides any service in or into the Restricted Area that may be used as a substitute for or otherwise competes with any product or service of Buyer, the Company or their predecessors carried out during the period commencing two years prior to the Closing Date and ending on the date of termination of the Restricted Period or contemplated during such period to be carried out by Buyer, the Company or their predecessors, or (y) any activity that is in competition with, or potential competition with, the Business or any other business of the Company.  Nothing in this Section 7.09(b) shall prohibit any Stockholder from being a passive owner of less than 1% of the outstanding capital stock of a corporation of any class that is publicly traded, so long as such Stockholder has no direct or indirect participation in the business of such corporation.

 

(c)                                   Confidentiality .  Each Stockholder will treat and hold as confidential all Confidential Information and shall refrain from using any Confidential Information except as necessary to consummate the Closing of the transactions contemplated by this Agreement, and deliver promptly to Buyer or destroy, at the request and option of Buyer, all tangible embodiments (and all copies) of Confidential Information which are in such Stockholder’s possession or under such Stockholder’s control.  In the event that any Stockholder is compelled by Law to disclose Confidential Information or the fact that Confidential Information has been made available to such Stockholder by the Company, such Stockholder agrees to provide the Company with prompt written notice of such request, to the extent such notice can be given, so that the Company may seek a protective order or other appropriate remedy and/or waive compliance with the provisions of this Agreement.  If a protective order or other remedy is not obtained, or the Company waives compliance with the provisions of this Agreement, such Stockholder agrees to furnish only that portion of Confidential Information and other information that is legally required and that Stockholder will use his, her, or its best efforts to obtain reliable assurance that confidential treatment will be accorded to that portion of Confidential Information and other information that is being disclosed.

 

(d)                                  Non-Disparagement by the Stockholders .  Each Stockholder agrees not to disparage Buyer or the Company, their respective goods or services, or any past and present investors, officers, directors, employees, or any Affiliates of such Persons.

 

(e)                                   Remedy for Stockholder’s Breach .  Each Stockholder acknowledges and agrees that in the event of a breach by such Stockholder of any of the provisions of this Section 7.09 , monetary damages may be inadequate and Buyer may have no adequate remedy at law.  Accordingly, in the event of any such breach, Buyer and its successors or assigns may, in addition to any other rights and remedies existing in their favor, enforce their rights and such Stockholder’s obligations hereunder by an Action or Actions for specific performance, injunctive and/or other relief, without any requirement of posting a bond or proving actual damages or posting any bond or other security.

 

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(f)                                    Modification; Extension of Restricted Period .  If the final judgment of a court of competent jurisdiction declares that any term or provision of this Section 7.09 is invalid or unenforceable, the parties agree that the court making the determination of invalidity or unenforceability will have the power to reduce the scope, duration, or area of the term or provision, to delete specific words or phrases, or to replace any invalid or unenforceable term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision, and this Agreement will be enforceable as so modified after the expiration of the time within which the judgment may be appealed.  In the event a court of competent jurisdiction determines that a Stockholder breached any term or provision of this Section 7.09 , such Stockholder hereby consents to the court extending the duration of the restrictive provisions contained in this Section 7.09 to a period of time equal to the period of time that such Stockholder breached such provisions to compensate Buyer for the time such Stockholder was in violation of such provisions.

 

7.10                         Customer and Other Business Relationships.

 

(a)                                  After the Closing, each Majority Stockholder shall cooperate with Buyer and the Company in their efforts to continue and maintain for the benefit of Buyer and the Company those business relationships of the Company, including relationships with any customers, suppliers, licensors, licensees, lessors, employees, regulatory authorities and others.  Each Majority Stockholder shall refer to Buyer and the Company all inquiries and communications received by such Majority Stockholder relating to the Company or the Business after the Closing.

 

(b)                                  After the Closing, no Stockholder may take any action that is designed or intended to have the effect of discouraging any lessor, licensor, customer, supplier, or other business relation of the Company from maintaining the same business relationships with the Company after the Closing Date as it maintained with the Company prior to the Closing Date.

 

7.11                         Stockholders’ Release.

 

(a)                                  Except as provided in Section 7.11(d)  below, each Stockholder on behalf of itself and any Person who may be bound by it (collectively, the “ Releasing Parties ”), releases the Company, Buyer, and each of their respective officers, directors, partners, members, managers, shareholders, Affiliates, Subsidiaries, Related Persons, agents, attorneys, employees, predecessors, successors, heirs, and assigns (collectively, the “ Released Parties ”) from any and all Actions, controversies, cross-claims, counter-claims, debts, compensatory damages, liquidated damages, punitive or exemplary damages, other damages, claims for costs and attorneys’ fees, or Liabilities of any nature whatsoever in law and in equity, both past and present (from the beginning of the world through the date of this Agreement) and whether known or unknown, suspected, or claimed against any of its, his or her Released Parties which such Releasing Party, or any officer, director, manager, trustee, spouse, heir, executor, administrator, successor or assign of such Releasing Party, has or may have, which arise out of or are connected with the Company, any Affiliate of the Company, or any predecessor thereto (other than those arising out of or in connection with any other agreements entered into pursuant to this Agreement), whether arising under any federal, state or local civil or human rights law, or under any other local, state, or federal law, regulation or ordinance, or under any public policy, contract

 

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or tort, or under common law; or any claim for breach of contract, infliction of emotional distress, defamation, or any claim for costs, fees, or other expenses, including attorneys’ fees incurred in these matters (all of the foregoing collectively referred to herein as such Releasing Party’s “ Released Claims ”).

 

(b)                                  Each Releasing Party represents that he, she or it has made no assignment or transfer of any Released Claim.  Each Releasing Party acknowledges and intends that his, her or its execution and delivery of this release shall be effective as a bar to each and every one of the Released Claims, and expressly consents and agrees that this release shall be given full force and effect according to each and all of its express terms and provisions, including those relating to unknown and unsuspected Released Claims (notwithstanding any state statute that expressly limits the effectiveness of a general release of unknown, unsuspected and unanticipated Released Claims), if any, as well as those relating to any other Released Claims hereinabove mentioned or implied.

 

(c)                                   Each Releasing Party agrees that if he, she or it violates any provision of this Agreement, such Releasing Party will pay all costs and expenses of defending against any related or resulting suit or other Proceeding incurred by his, her or its Released Parties, including reasonable attorneys’ fees.

 

(d)                                  Notwithstanding the release provided in this Section, nothing herein shall operate to release or impair the rights and obligations under, or prevent the Releasing Party from asserting any claim against any Released Party that such Releasing Party may have, if any, arising under this Agreement and any document executed in connection with this Agreement, including without limitation, the Escrow Agreement, the Employment Agreements, the Transition Agreement, the Amended and Restated Lease and the Company employee benefit plans.

 

ARTICLE VIII.

TAX MATTERS

 

8.01                         Tax Matters.

 

The following provisions will govern the allocation of responsibility as between Buyer and the Stockholders for certain Tax matters following the Closing Date:

 

(a)                                  The Majority Stockholders, jointly and severally, will indemnify the Company and Buyer and hold them harmless from and against, without duplication, any loss, claim, Liability, expense, or other damage attributable to (i) all Taxes (or the non-payment thereof) of the Company for any Pre-Closing Tax Periods, (ii) all Taxes of any Relevant Group of which the Company (or any predecessor of the Company) is or was a member on or prior to the Closing Date, including pursuant to Treasury Regulation §1.1502-6 or any analogous or similar state, local, or non-U.S. law or regulation, and (iii) any and all Taxes of any Person (other than the Company) imposed on the Company as a transferee or successor, by Contract, pursuant to any law, rule, or regulation, or otherwise; provided , however , that in the case of clauses (i), (ii), and (iii) above, the Majority Stockholders will not be liable to the extent that such Taxes are taken into account in Closing Indebtedness or the Net Working Capital at Closing and thus

 

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actually reduce the Final Closing Cash Purchase Price.  The Majority Stockholders will pay to Buyer the amount of any Taxes which are the responsibility of the Majority Stockholders pursuant to this Section 8.01(a) within ten (10) Business Days before the later of (i) the date such Taxes are payable by Buyer or the Company and (ii) Buyer’s demand for such payment from the Majority Stockholders.  The indemnification under this Section 8.01(a) shall survive indefinitely and shall not be subject to the Basket or Cap.

 

(b)                                  Straddle Period .  For purposes of this Agreement, in the case of any Taxable period that includes (but does not end on) the Closing Date (a “ Straddle Period ”), the amount of any real property, personal property or other ad valorem Taxes for the Straddle Period which relates to the Pre-Closing Tax Period will be deemed to be the amount of such Tax for the entire Straddle Period multiplied by a fraction the numerator of which is the number of days in the Straddle Period that occur on or before the Closing Date and the denominator of which is the total number of days in such Straddle Period, and the amount of other Taxes of the Company for a Straddle Period which relate to the Pre-Closing Tax Period will be determined based on an interim closing of the books as of the close of business on the Closing Date.  Without limiting the foregoing Tax on, (i) any income or gain of the Company that relates to the closing of the transactions contemplated by this Agreement, (ii) any income or gain of the Company that results from any action taken on the Closing Date by the Company at the direction of the Stockholders, and (iii) any income or gain realized by the Company as a result of the Section 338(h)(10) Election, will be allocated to the Pre-Closing Tax Period.

 

(c)                                   Responsibility for Filing Tax Returns .  Buyer will prepare or cause to be prepared and file or cause to be filed all Tax Returns for the Company that are filed after the Closing Date.  Prior to filing any such Tax Return for any Pre-Closing Tax Period, Buyer will permit Sellers’ Representative to review and comment on (but shall not require their consent before filing) each such Tax Return.  The Stockholders shall pay to Buyer the amount of any Taxes due with or in respect of any such Tax Return in accordance with Section 8.01(a) Notwithstanding the foregoing, the Stockholders shall, at their sole expense, prepare or cause to be prepared, in accordance with Sections 8.01(d) and 8.01(i) and otherwise in accordance with past custom and practice of the Company in preparing its income Tax Returns (subject, however, to applicable Law), any income Tax Returns of the Company which are due after the Closing Date for any Pre-Closing Tax Period, and shall submit such income Tax Returns to Buyer at least 15 days prior to their due date, for Buyer’s review and approval, which approval shall not be unreasonably withheld.  Stockholders shall report, on their respective personal income Tax Return(s), any income, gain, loss, deduction or other tax items for such periods in a manner consistent with the Schedule K-1s filed with such Tax Returns for such periods, and shall pay any Taxes due with or in respect of such Tax Returns, in accordance with Section 8.01(a) .

 

(d)                                  Purchase Price Allocation .  The Purchase Price, liabilities of the Company and other relevant items (including, for example and without limitation, any adjustments or additions to the Purchase Price pursuant to Sections 1.03 , 1.04 or 8.02 of this Agreement) will be allocated among the assets of the Company that are deemed to have been acquired pursuant to the Section 338(h)(10) Election as Buyer, in consultation with Buyer’s auditors, may reasonably determine in accordance with GAAP (as such allocation may be adjusted in accordance with the other provisions of this Section 8.01(d) , the “ Purchase Price Allocation ”).  Buyer and the Sellers’ Representative have agreed on an estimate of the Purchase Price Allocation based upon October

 

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31, 2013 balance sheet, which estimate is attached hereto as Schedule 8.01(d) .  Buyer shall notify the Sellers’ Representative of such determination within 30 days following the Closing.  If, within 30 days of being so notified, Sellers’ Representative does not object in writing to such determination, then the Purchase Price (along with any liabilities of the Company and other relevant items) shall be allocated among the assets of the Company in accordance with such determination.  If, within 15 days of being so notified, Sellers’ Representative does object in writing to such determination, then the parties’ dispute shall be resolved as follows: (i) the parties will in good faith attempt to negotiate a prompt resolution of the dispute; (ii) if the parties are unable to negotiate a resolution of the dispute within thirty (30) days, the dispute will be submitted to the Neutral Accountant, (iii) the Neutral Accountant shall resolve the dispute in accordance with GAAP, applicable Tax Law and the provisions of this Agreement, within thirty (30) days after the parties have submitted the dispute to the Neutral Accountant, whose decision shall be final, conclusive and binding on the parties; and (iv) the fees and expenses of the Neutral Accountant shall be paid by the party whose position was further from the position ultimately adopted by the Neutral Accountant, as determined by the Neutral Accountant.  The Purchase Price Allocation will be binding on all of the parties to this Agreement, and the parties agree to act (and cause their respective Affiliates to act) in accordance with the Purchase Price Allocation in the preparation, filing and audit of any Tax Return, including IRS Form 8883, IRS Form 8594 or any equivalent statement, and not to take (or permit any of their Affiliates to take) any Tax position that is inconsistent with such Purchase Price Allocation.  In the event that, after the Purchase Price Allocation is initially determined, the Purchase Price is adjusted (including adjustments pursuant to Sections 1.03 , 1.04 or 8.02 of this Agreement), the Purchase Price Allocation shall also be adjusted.  To the extent permitted by the Code, the Treasury regulations under the Code or other applicable Tax law, any adjustments to the Purchase Price shall be allocated, to the extent possible, to the classes of assets that were the subject of the adjustments to the Purchase Price, and to the extent that such adjustments do not relate to any specific asset classification, shall be allocated to goodwill.

 

(e)                                   Cooperation on Tax Matters .  Each party hereto will, and shall cause its Subsidiaries and Affiliates to, provide to each of the other parties hereto such cooperation and information as any of them reasonably may request in filing any Tax Return, determining a Liability for Taxes or in conducting any audit or other Proceeding in respect of Taxes.  Such cooperation and information shall include providing copies of all relevant portions of relevant Tax Returns, together with relevant accompanying schedules and relevant work papers, relevant documents relating to rulings or other determinations by Taxing Authorities and relevant records concerning the ownership and Tax basis of property, which any such party may possess.  The Stockholders shall turn over to Buyer all Tax Returns, schedules and work papers, and all material records and other documents in its possession, relating to Taxes of the Company.

 

(f)                                    Tax Sharing Agreements .  All Tax sharing agreements or similar agreements and powers of attorney with respect to or involving the Company shall be terminated as of the Closing Date and, after the Closing Date, the Company shall not be bound thereby or have any Liability thereunder.

 

(g)                                   Certain Taxes and Fees .  All transfer, documentary, sales, use, stamp, registration and other such Taxes, and all conveyance fees, recording charges and other fees and charges (including any penalties and interest) incurred in connection with consummation of the

 

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transactions contemplated by this Agreement shall be paid by the Stockholders when due, and the Stockholders will, at their own expense, file all necessary Tax Returns and other documentation with respect to all such Taxes, fees and charges.  Notwithstanding the foregoing, if such Tax Returns are not filed when due, then Buyer shall have the right to prepare and file, at Stockholders’ expense, such Tax Returns.

 

(h)                                  Preservation of S Election .  Neither the Company nor any Stockholders will revoke the Company’s election to be taxed as an S corporation within the meaning of Sections 1361 and 1362 of the Code.  Neither the Company nor any Stockholders will take or allow any action that would result in the termination of the Company’s status as a validly electing S corporation within the meaning of Sections 1361 and 1362 of the Code.

 

(i)                                      Making of Section 338(h)(10) Election .  The Stockholders will join with Buyer in making a timely election under Section 338(h)(10) of the Code (and any comparable election under state or local Tax law) with respect to the purchase of the Shares (collectively, the “ Section 338(h)(10) Election ”).  The Stockholders agree (i) to provide Buyer with any information reasonably requested by Buyer to permit the Section 338(h)(10) Election to be made and (ii) to take all actions reasonably requested by Buyer to effect and preserve timely the Section 338(h)(10) Election (including filing such forms, returns, elections, schedules and other documents reasonably requested by Buyer to effect and preserve the Section 338(h)(10) Election in accordance with the provisions of Section 1.338(h)(10)-1 of the Treasury Regulations (or any comparable provisions under state or local tax law)).  Without limiting the generality of the foregoing, each Stockholders will furnish to Buyer, prior to Closing or at any time thereafter as requested by the Buyer, such Stockholder’s social security or Tax identification number and any other information requested by Buyer in order to prepare IRS Form 8023 (and, as applicable, analogous forms required under state or local Tax law) and will, at the Closing or at any time thereafter as requested by Buyer, execute any IRS Form 8023 (and any such analogous forms) prepared by Buyer and deliver such IRS Form 8023 (and any such analogous forms) to Buyer for filing.  Following the Closing, the Stockholders will take any and all other actions, and execute and deliver to Buyer any and all forms and documents, that Buyer may determine to be necessary or appropriate to give full effect to the Section 338(h)(10) Election for federal, state, local and foreign Tax purposes to the fullest extent permitted by law.

 

(j)                                     Tax Proceedings .  The right of Sellers’ Representative to participate in or control any contest with any Taxing Authority over any Tax of the Company for any Pre-Closing Tax Period (a “ Tax Contest ”) shall be governed by the provisions of Section 9.05 , provided , however , that (notwithstanding any contrary provision of Section 9.05 ) Sellers’ Representative shall not have the right to control any such Tax Contest if (i) the outcome of such Tax Contest may adversely affect the Tax liability of the Company, Buyer or any Affiliate of any of them for any period ending after the Closing Date, (ii) the Stockholders fail, within ten days after Sellers’ Representative is notified of such Tax Contest, to verify to Buyer in writing that the Stockholders have the obligation to indemnify Buyer hereunder with respect to any Losses or Taxes related to or arising out of such Tax Contest, (iii) Buyer reasonably determines that there is a material risk that Buyer will not be able to collect from the Stockholders the amount of Tax (plus any applicable interest and penalties) that may, in the event of an adverse resolution of the Tax Contest, be determined to be due and owing, or (iv) in the reasonable judgment of Buyer, Sellers’ Representative has failed or ceased diligently to defend against the adjustment in Tax

 

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proposed in such Tax Contest.  With respect to any Tax Contest that it controls, Sellers’ Representative (A) shall give prompt notice to Buyer of any Tax adjustment proposed in writing pursuant to such Tax Contest, including, without limitation, the right to participate in conferences with Taxing Authorities and submit pertinent material in support of Buyer’s position, (B) shall otherwise afford Buyer a reasonable opportunity to participate, at Buyer’s expense, in the conduct of such Tax Contest, and (C) shall not settle such Tax Contest with Buyer’s written consent, which shall not be unreasonably withheld.

 

8.02                         Treatment of Indemnification Payments.

 

Each party will treat all payments made pursuant to this ARTICLE VIII as adjustments to the Purchase Price for all purposes.

 

8.03                         Other Rights and Remedies Not Affected.

 

The indemnification rights under this ARTICLE VIII are independent of and in addition to such rights and remedies as the parties may have at Law or in equity or otherwise for any misrepresentation, breach of warranty, or failure to fulfill any agreement or covenant contained in this Agreement on the party of any party hereto, including, without limitation, the right to seek specific performance, recession or restitution, none of which rights or remedies shall be affected or diminished hereby.

 

8.04                         Overlap.

 

To the extent that any obligation or responsibility pursuant to ARTICLE VIII may overlap with an obligation or responsibility pursuant to this ARTICLE VIII , the provisions of this ARTICLE VIII shall govern.

 

ARTICLE IX.

INDEMNIFICATION

 

9.01                         Survival.

 

All representations, warranties, covenants, and other agreements contained in this Agreement, any Schedule, any Exhibit, or any other certificate, document, or other writing delivered in connection with this Agreement, shall survive the Closing as follows:

 

(a)                                  All Fundamental Representations, covenants, and other agreements shall not terminate and will survive the Closing indefinitely.

 

(b)                                  All Extended Exposure Representations shall survive the Closing until 60 days after the expiration of the applicable statute of limitations period associated with such Liabilities in question (after giving effect to any waivers and extensions thereof).

 

(c)                                   All Standard Representations shall survive the Closing until 24 months following the Closing.

 

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9.02                         Indemnification by the Majority Stockholders.

 

(a)                                  Each Majority Stockholder shall, jointly and severally, indemnify, defend, save and hold harmless from and against, and pay on behalf of and reimburse as and when incurred Buyer, the Company, and each of their respective Affiliates, Subsidiaries, Related Persons, employees, agents, representatives, successors and assigns (the “ Buyer Indemnitees ”) for, any and all Losses resulting from, arising out of, or incurred by any Buyer Indemnitees in connection with, or otherwise relating to:

 

(i)                                      the failure of any representation, warranty, or other statement by any Stockholder or the Company contained in this Agreement, any Schedule, any Exhibit, or any other certificate, document, or other writing delivered in connection with this Agreement, to be true and correct in all respects as of the Closing Date;

 

(ii)                                   any breach of any covenant or other agreement by any Stockholder or the Company contained in this Agreement, any Schedule, any Exhibit, or any other certificate, document, or other writing delivered in connection with this Agreement;

 

(iii)                                any Sellers’ Expenses and any Indebtedness, in each case to the extent not included in the calculation of the Final Closing Cash Purchase Price; and

 

(iv)                               all matters disclosed on Schedule 9.02(a)(iv).

 

provided that (A) this Section 9.02 shall not apply with respect to any Loss relating to Taxes to the extent that indemnification payments for such Loss have been made pursuant to Section 8.01 , and (B) for purposes of this Section 9.02 , the representations and warranties contained in this Agreement, any Schedule, any Exhibit, or any other certificate, document, or other writing delivered in connection with this Agreement shall be deemed to have been made without any qualifications as to materiality and, accordingly, all references herein and therein to “material,” “in all material respects” and similar qualifications as to materiality shall be deemed to be deleted therefrom (except where any such provision requires disclosure of lists of items of a material nature or above a specified threshold).

 

(b)                                  The Majority Stockholders shall not have any obligation to indemnify the Buyer for any Loss or Losses pursuant to Section 9.02(a)(i) (“ Buyer Warranty Losses ”) (other than with respect to Fundamental Representations and Extended Exposure Representations) (i) unless and until the aggregate amount of all Buyer Warranty Losses incurred by the Buyer Indemnitees exceeds $200,000 (the “ Basket ”), in which case the Majority Stockholders shall be liable for all Buyer Warranty Losses including the Basket, and (ii) to the extent that Buyer Warranty Losses exceed $3,000,000 (the “ Cap ”) in the aggregate; provided that nothing contained in this Section 9.02(b) shall be deemed to limit or restrict in any manner any rights or remedies which Buyer has, or might have, at Law, in equity or otherwise, based on fraud, intentional misrepresentation, or any Losses pursuant to Sections   9.02(a)(ii) , 9.02(a)(iii) or 9.02(a)(iv) .

 

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9.03                         Indemnification by Buyer.

 

(a)                                  Buyer shall indemnify, defend, save and hold harmless from and against, and pay on behalf of and reimburse as and when incurred each Stockholder, its Affiliates, and their respective Related Persons, employees, agents, representatives, successors and assigns (the “ Seller Indemnitees ”) for, any and all Losses resulting from, arising out of, or incurred by any Seller Indemnitees in connection with, or otherwise relating to:

 

(i)                                      the failure of any representation, warranty, or other statement by Buyer contained in this Agreement, any Schedule, any Exhibit, or any other certificate, document, or other writing delivered in connection with this Agreement, to be true and correct in all respects as of the Closing Date; and

 

(ii)                                   any breach of any covenant or other agreement by Buyer contained in this Agreement, any Schedule, any Exhibit, or any other certificate, document, or other writing delivered in connection with this Agreement.

 

(b)                                  Buyer shall not be liable for any Loss or Losses pursuant to Section 9.03(a)(i) (“ Seller Warranty Losses ”) (other than with respect to Fundamental Representations) (i) unless and until the aggregate amount of all Seller Warranty Losses incurred by the Seller Indemnitees exceeds the Basket, in which case Buyer shall be liable for all Seller Warranty Losses, and (ii) to the extent that Seller Warranty Losses exceed the Cap in the aggregate; provided , that nothing contained in this Section 9.03 shall be deemed to limit or restrict in any manner any rights or remedies which any Majority Stockholder has, or might have, at Law, in equity or otherwise, based on fraud, intentional misrepresentation, or any Losses pursuant to Section 9.03(a)(ii) .

 

9.04                         Time Limitations.

 

(a)                                  The Majority Stockholders shall have liability under Section 9.02 with respect to a breach of an Extended Exposure Representation or a Standard Representation, as the case may be, only if the Buyer Indemnitee notifies Sellers’ Representative of a claim (specifying the factual basis of the claim in reasonable detail to the extent known by such Buyer Indemnitee) on or before the expiration date of the applicable survival period set forth in Section 9.01 that relates to the alleged breached representation or warranty in question.

 

(b)                                  Buyer shall have liability under Section 9.03 with respect to a breach of a Standard Representation only if the Seller Indemnitee notifies Buyer of a claim (specifying the factual basis of the claim in reasonable detail to the extent known by such Seller Indemnitee) on or before the expiration date of the applicable survival period set forth in Section 9.01 that relates to the alleged breached representation or warranty in question.

 

9.05                         Indemnification Procedures for Third Party Claims.

 

(a)                                  In the event that an Indemnitee receives notice of the assertion of any claim or the commencement of any Action by a third party in respect of which indemnity may be sought under the provisions of this ARTICLE IX (“ Third Party Claim ”), the Indemnitee shall promptly notify the Indemnitor in writing (“ Notice of Claim ”) of such Third Party Claim.

 

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Failure or delay in notifying the Indemnitor will not relieve the Indemnitor of any liability it may have to the Indemnitee, except and only to the extent that such failure or delay causes actual harm to the Indemnitor with respect to such Third Party Claim.  The Notice of Claim shall set forth the amount, if known, or, if not known, an estimate of the foreseeable maximum amount of claimed Losses (which estimate shall not be conclusive of the final amount of such Losses) and a description of the basis for such Third Party Claim.  Notwithstanding the foregoing, in the case of any Majority Stockholder, Sellers’ Representative shall act on behalf of such Majority Stockholders for the purposes of this Section 9.05 and any actions taken (or not taken) by Sellers’ Representative on behalf of any such Majority Stockholder shall be binding on such Majority Stockholder as an Indemnitor or Indemnitee, as the case may be, hereunder.  All notices to any Majority Stockholder under this Section 9.05 may be provided by Buyer to Sellers’ Representative in lieu of providing such notice to any specific Majority Stockholder.

 

(b)                                  Subject to the further provisions of this Section 9.05 , the Indemnitor will have ten (10) business days (or less if the nature of the Third Party Claim requires) from the date on which the Indemnitor received the Notice of Claim to notify the Indemnitee that the Indemnitor will assume the defense or prosecution of such Third Party Claim and any litigation resulting therefrom with counsel of its choice (reasonably satisfactory to the Indemnitee) and at its sole cost and expense (a “ Third Party Defense ”).  If the Indemnitor assumes the Third Party Defense in accordance with the preceding sentence, the Indemnitor shall be conclusively deemed to have acknowledged that the Third Party Claim is within the scope of its indemnity obligation hereunder and shall hold the Indemnitee harmless from and against the full amount of any Losses resulting therefrom (subject to the terms and conditions of this Agreement).  Any Indemnitee shall have the right to employ separate counsel in any such Third Party Defense and to participate therein, but the fees and expenses of such counsel shall not be at the expense of the Indemnitor unless (A) the Indemnitor shall have failed, within the time after having been notified by the Indemnitee of the existence of the Third Party Claim as provided in the first sentence of this paragraph (b), to assume the defense of such Third Party Claim, or (B) the employment of such counsel has been specifically authorized in writing by the Indemnitor, which authorization shall not be unreasonably withheld.

 

(c)                                   The Indemnitor will not be entitled to assume the Third Party Defense if:

 

(i)                                      the Third Party Claim seeks, in addition to or in lieu of monetary damages, any injunctive or other equitable relief (except where non-monetary relief is merely incidental to a primary claim or claims for monetary damages);

 

(ii)                                   the Third Party Claim relates to or arises in connection with any criminal Proceeding, Action, indictment, allegation or investigation;

 

(iii)                                the Third Party Claim relates to or arises in connection with any Action relating to Environmental and Safety Requirements;

 

(iv)                               under applicable standards of professional conduct, a conflict on any significant issue exists between the Indemnitee and the Indemnitor in respect of the Third Party Claim;

 

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(v)                                  the Third Party Claim involves a material customer or supplier of the Company;

 

(vi)                               the Indemnitee reasonably believes an adverse determination with respect to the Third Party Claim would be detrimental to or injure the Indemnitee’s reputation or future business prospects;

 

(vii)                            the Indemnitor has failed or is failing to vigorously prosecute or defend such Third Party Claim; or

 

(viii)                         the Indemnitor fails to provide reasonable assurance to the Indemnitee of its financial capacity to prosecute the Third Party Defense and provide indemnification in accordance with the provisions of this Agreement.

 

(d)                                  If by reason of the Third Party Claim, a Lien, attachment, garnishment or execution is placed upon any of the property or assets of the Indemnitee, the Indemnitor, if it desires to exercise its right to assume such Third Party Defense, must furnish a satisfactory indemnity bond to obtain the prompt release of such Lien, attachment, garnishment or execution.

 

(e)                                   If the Indemnitor assumes a Third Party Defense, it will take all steps necessary in the defense, prosecution, or settlement of such claim or litigation and will hold all Indemnitees harmless from and against all Losses caused by or arising out of such Third Party Claim.  The Indemnitor will not consent to the entry of any judgment or enter into any settlement, except with the written consent of the Indemnitee; provided , that the consent of the Indemnitee shall not be required if all of the following conditions are met: (i) the terms of the judgment or proposed settlement include as an unconditional term thereof the giving to the Indemnitees by the third party of a release of the Indemnitees from all liability in respect of such Third Party Claim, (ii) there is no finding or admission of (A) any violation of Law by the Indemnitees (or any Affiliate thereof), (B) any violation of the rights of any Person, and (C) no effect on any other Action or claims of a similar nature that may be made against the Indemnitees (or any Affiliate thereof), and (iii) the sole form of relief is monetary damages which are paid in full by the Indemnitor.  The Indemnitor shall conduct the defense of the Third Party Claim actively and diligently, and the Indemnitee will provide reasonable cooperation in the defense of the Third Party Claim.  So long as the Indemnitor is reasonably conducting the Third Party Defense in good faith, the Indemnitee will not consent to the entry of any judgment or enter into any settlement with respect to the Third Party Claim without the prior written consent of the Indemnitor (not to be unreasonably withheld or delayed).  Notwithstanding the foregoing, the Indemnitee shall have the right to pay or settle any such Third Party Claim; provided , that in such event it shall waive any right to indemnity therefor by the Indemnitor for such claim unless the Indemnitor shall have consented to such payment or settlement (such consent not to be unreasonably withheld or delayed).  If the Indemnitor is not reasonably conducting the Third Party Defense in good faith, the Indemnitee shall have the right to consent to the entry of any judgment or enter into any settlement with respect to the Third Party Claim without the prior written consent of the Indemnitor and the Indemnitor shall reimburse the Indemnitee promptly for all Losses incurred in connection with such judgment or settlement.

 

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(f)                                    In the event that (i) an Indemnitee gives Notice of Claim to the Indemnitor and the Indemnitor fails or elects not to assume a Third Party Defense which the Indemnitor had the right to assume under this Section 9.05 , or (ii) the Indemnitor is not entitled to assume the Third Party Defense pursuant to this Section 9.05 , the Indemnitee shall have the right, with counsel of its choice, to defend, conduct and control the Third Party Defense, at the sole cost and expense of the Indemnitor.  In each case, the Indemnitee shall conduct the Third Party Defense actively and diligently, and the Indemnitor will provide reasonable cooperation in the Third Party Defense.  The Indemnitee shall have the right to consent to the entry of any judgment or enter into any settlement with respect to the Third Party Claim on such terms as it may deem appropriate.  Notwithstanding any provision to the contrary, in connection with any Third Party Claim, the Indemnitor hereby consents to the nonexclusive jurisdiction of any court in which an Action in respect of a Third-Party Claim is brought against any Indemnitee for purposes of any claim that the Indemnitee may have under this ARTICLE IX with respect to such Action or the matters alleged therein and agrees that process may be served on the Indemnitor with respect to such a claim anywhere in the world.  If the Indemnitor does not elect to assume a Third Party Defense which it has the right to assume hereunder, the Indemnitee shall have no obligation to do so.

 

(g)                                   Each party to this Agreement shall use its commercially reasonable efforts to cooperate and to cause its employees to cooperate with and assist the Indemnitee or the Indemnitor, as the case may be, in connection with any Third Party Defense, including attending conferences, discovery proceedings, hearings, trials and appeals and furnishing records, information and testimony, as may reasonably be requested; provided that each party shall use its best efforts, in respect of any Third Party Claim of which it has assumed the defense, to preserve the confidentiality of all Confidential Information and the attorney-client and work-product privileges.

 

9.06                         Indemnification Procedures for Non-Third Party Claims.

 

In the event of a claim that does not involve a Third Party Claim being asserted against it, the Indemnitee shall send a Notice of Claim to the Indemnitor.  The Notice of Claim shall set forth the amount, if known, or, if not known, an estimate of the foreseeable maximum amount of claimed Losses (which estimate shall not be conclusive of the final amount of such Losses) and a description of the basis for such claim.  The Indemnitor will have 30 days from receipt of such Notice of Claim to dispute the claim and will reasonably cooperate and assist the Indemnitee in determining the validity of the claim for indemnity.  If the Indemnitor does not give written notice to the Indemnitee that it disputes such claim within 30 days after its receipt of the Notice of Claim, the claim specified in such Notice of Claim will be conclusively deemed a Loss subject to indemnification hereunder.  Notwithstanding the foregoing, in the case of any Majority Stockholder, Sellers’ Representative shall act on behalf of such Majority Stockholders for the purposes of this Section 9.06 and any actions taken (or not taken) by Sellers’ Representative on behalf of any such Majority Stockholder shall be binding on such Majority Stockholder as an Indemnitor or Indemnitee, as the case may be, hereunder.  All notices to any Majority Stockholder under this Section 9.06 may be provided by Buyer to Sellers’ Representative in lieu of providing such notice to any specific Majority Stockholder.

 

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9.07                         Contingent Claims.

 

Nothing herein shall be deemed to prevent an Indemnitee from making a claim hereunder for potential or contingent claims or demands; provided that the Notice of Claim sets forth the specific basis for any such contingent claim to the extent then feasible and the Indemnitee has reasonable grounds to believe that such a claim may be made.

 

9.08                         Company Indemnification.

 

Each Stockholder acknowledges and agrees that, upon and following the Closing, the Company shall not have any Liability or obligation to indemnify, save or hold harmless or otherwise pay, reimburse or make any Stockholder whole for or on account of any indemnification or other claims made by any Buyer Indemnitee hereunder.  No Stockholder will have a right of contribution, indemnification, or any other form of remuneration against the Company in respect of such indemnification or other claim under the Company’s organizational documents or otherwise.

 

ARTICLE X.

TERMINATION

 

10.01                  Termination.

 

This Agreement may be terminated at any time prior to Closing:

 

(a)                                  By the mutual written consent of the parties hereto;

 

(b)                                  By Buyer with written notice to the Sellers’ Representative if:

 

(i)                                      Buyer is not then in material breach of any provision of this Agreement and there has been a breach, inaccuracy in or failure to perform any representation, warranty, covenant or agreement made by Stockholders or the Company pursuant to this Agreement that would give rise to the failure of any of the conditions specified in ARTICLE VI and such breach, inaccuracy or failure has not been cured by Stockholders within ten (10) business days of Sellers’ Representative’s receipt of written notice of such breach from Buyer; or

 

(ii)                                   any of the conditions set forth in Sections 6.01 or 6.02 shall not have been, or if it becomes apparent that any of such conditions will not be, fulfilled by December 31, 2013, unless such failure shall be due to the failure of Buyer to perform or comply with any of the covenants, agreements or conditions hereof to be performed or complied with by it prior to the Closing;

 

(c)                                   by the Majority Stockholders with written notice to Buyer if:

 

(i)                                      the Stockholders and the Company are not then in material breach of any provision of this Agreement and there has been a breach, inaccuracy in or failure to perform any representation, warranty, covenant or agreement made by Buyer pursuant to this Agreement that would give rise to the failure of any of the

 

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conditions specified in ARTICLE VI and such breach, inaccuracy or failure has not been cured by Buyer within ten (10) business days of Buyer’s receipt of written notice of such breach from Sellers’ Representative; or

 

(ii)                                   any of the conditions set forth in Sections 6.01 or 6.03 shall not have been, or if it becomes apparent that any of such conditions will not be, fulfilled by December 31, 2013, unless such failure shall be due to the failure of Stockholders and the Company to perform or comply with any of the covenants, agreements or conditions hereof to be performed or complied with by it prior to the Closing; or

 

(d)                                  by Buyer or Majority Stockholders in the event that (i) there shall be any Law that makes consummation of the transactions contemplated by this Agreement illegal or otherwise prohibited or (ii) any Governmental Entity shall have issued a Governmental Order restraining or enjoining the transactions contemplated by this Agreement, and such Governmental Order shall have become final and non-appealable.

 

10.02                  Effect of Termination.

 

If this Agreement is terminated as provided in Section 10.01 , then this Agreement will forthwith become void and there will be no Liability on the part of any party to any other party or any other Person in respect thereof; provided that the obligations of the parties described in Sections 7.06 , 7.09(c) and ARTICLE XIII and the provisions of the Confidentiality Agreement executed by the parties will survive any such termination; and provided further that any termination shall not relieve a party from liability for fraud.

 

ARTICLE XI.

SELLERS’ REPRESENTATIVE

 

11.01                  Designation.

 

James Calnan (“ Sellers’ Representative ”) is hereby designated by each of the Stockholders to serve as the representative of the Stockholders with respect to the matters expressly set forth in this Agreement to be performed by Sellers’ Representative.

 

11.02                  Authority; Successor.

 

(a)                                  Authority .  Each of the Stockholders, by the execution of this Agreement, hereby irrevocably appoints Sellers’ Representative as the agent, proxy and attorney in fact for such Stockholder for all purposes of this Agreement (including the full power and authority on such Stockholder’s behalf) (i) to consummate the transactions contemplated herein, (ii) to disburse any funds received hereunder to such Stockholder and each other Stockholder, (iii) to endorse and deliver any certificates or instruments representing the Shares and execute such further instruments of assignment as Buyer shall reasonably request, (iv) to execute and deliver on behalf of such Stockholder any amendment or waiver hereto, (v) to take all other actions to be taken by or on behalf of such Stockholder in connection herewith, (vi) to agree upon the

 

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Estimated Closing Purchase Price, (vii) to object on behalf on each of the Stockholders with respect to any disagreements or disputes relating to the Final Closing Cash Purchase Price, (viii) to give and receive all notices and communications to be given or received under this Agreement and the Escrow Agreement and to receive service of process in connection with any claims under this Agreement, including service of process in connection with any litigation, (ix) to act for such Stockholders with regard to matters pertaining to indemnification referred to herein or the Escrow Agreement, including, without limitation, the power to compromise on behalf such Stockholder of any claim made by such Stockholder, to bring, respond to, and transact matters of litigation, (x) to execute and deliver on behalf of each Stockholder all ancillary agreements, certificates, statements, notices, approvals, extensions, waivers, undertakings, amendments and other documents Sellers’ Representative deems appropriate in connection with responding to, compromising or settling any claims made by a Stockholder, (xi) to receive funds for, and cause the disbursement of funds from, the Escrow Account (as defined in the Escrow Agreement), and (xii) to do or refrain from doing each and every act and exercise any and all rights which such Stockholder or the Stockholders collectively are permitted or required to do or exercise under this Agreement.  Each of the Stockholders agrees that such agency and proxy are coupled with an interest, are therefore irrevocable without the consent of Sellers’ Representative and shall survive the death, incapacity, bankruptcy, dissolution or liquidation of any Stockholder.  All decisions and actions by Sellers’ Representative (to the extent authorized by this Agreement) shall be binding upon all of the Stockholders, and no Stockholder shall have the right to object, dissent, protest or otherwise contest the same.  Each Stockholder agrees that Buyer shall be entitled to rely on any action taken by Sellers’ Representative, on behalf of such Stockholder, pursuant to this Section (an “ Authorized Action ”), and that each Authorized Action shall be binding on each Stockholder as fully as if such Stockholder had taken such Authorized Action.  Sellers’ Representative shall not be liable to any Stockholder for any error of judgment, or any action taken, suffered or omitted to be taken, under this Agreement or the Escrow Agreement.  Sellers’ Representative may consult with legal counsel, independent public accountants or other experts selected by him, her, or it and shall not be liable for any action taken or omitted to be taken in good faith by him in accordance with the advice of such counsel, accountants or experts.  By executing and delivering this Agreement, each Stockholder agrees that it shall indemnify (on a pro rata basis) and hold Sellers’ Representative harmless from any and all liability, loss, cost, damage or expense (including attorneys’ fees) reasonably incurred or suffered as a result of the performance of his, her, or its duties under this Agreement, except such that arises from the gross negligence or willful misconduct or fraud of Sellers’ Representative.

 

(b)                                  Successor .  Within 30 days after the death, incapacity or resignation of Sellers’ Representative, or his, her, or its successor as Sellers’ Representative, a majority-in-interest of the holders of the Shares immediately prior to the Closing shall appoint a successor Sellers’ Representative, and if a majority-in-interest of the holders of the Shares immediately prior to the Closing fail to so appoint a successor Sellers’ Representative within such period, then Buyer may appoint an independent third party which is not an Affiliate of Buyer as the successor Sellers’ Representative by written notice to a majority-in-interest of the holders of the Shares immediately prior to the Closing, which third party shall become the successor Sellers’ Representative.

 

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ARTICLE XII.

DEFINITIONS

 

12.01                  Definitions.

 

For purposes of this Agreement, the following terms, when used herein with initial capital letters, shall have the respective meanings set forth herein:

 

Acquisition Proposal ” has the meaning set forth in Section 7.03(a) .

 

Action ” means any claim, action, cause of action, demand, lawsuit, arbitration, inquiry, audit, notice of violation, Proceeding, litigation, citation, summons, subpoena or investigation of any nature, civil, criminal, administrative, regulatory or otherwise, whether at law or in equity.

 

Actual Gross Profit ” has the meaning set forth in Section 1.04(d) .

 

Actual Revenue ” has the meaning set forth in Section 1.04(d) .

 

Affiliate ” means, with respect to any Person, any other Person that, directly or indirectly, controls, is controlled by or is under common control with such first Person.

 

Agreement ” has the meaning set forth in the preamble.

 

Annual Gross Profit Target ” has the meaning set forth in Section 1.04(d) .

 

Annual Revenue Target ” has the meaning set forth in Section 1.04(d) .

 

Authorized Action ” has the meaning set forth in Section 11.02(a) .

 

Basket ” has the meaning set forth in Section 9.02(b) .

 

Benefit Plan ” means any “employee benefit plan” (as such term is defined in ERISA Section 3(3)) and any other employee benefit plan, program, nonqualified deferred compensation plan, severance or similar arrangement of any kind that applies to current or former employees or directors (or their spouses or dependent children) of the Company that the Company maintains, to which the Company contributes or has any obligation to contribute, or with respect to which the Company has any Liability or potential Liability.

 

Business ” means the operation of a pharmacy, that provides specialty pharmacy and nursing services for both infused and other pharmaceutical products and related services, including but not limited to the provision of clinical care management services for hemophilia, von Willebrand disease (VWD) and related bleeding disorders, miscellaneous therapies and all other business conducted or proposed to be conducted by the Company as of the Closing.

 

Business Day ” means any day except Saturday, Sunday or any other day on which commercial banks located in Michigan are authorized or required by Law to be closed for business.

 

Buyer ” has the meaning set forth in the preamble.

 

Buyer Indemnitees ” has the meaning set forth in Section 9.02(a) .

 

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Buyer Warranty Losses ” has the meaning set forth in Section 9.02(b) .

 

Calculation Period ” has the meaning set forth in Section 1.04(d) .

 

Cap ” has the meaning set forth in Section 9.02(b) .

 

Cash on Hand at Closing ” means all unrestricted cash on hand of the Company as of immediately prior to the Closing.

 

Closing ” has the meaning set forth in Section 2.01 .

 

Closing Date ” has the meaning set forth in Section 2.01 .

 

Closing Indebtedness ” means the sum of all Indebtedness of the Company as of immediately prior to the Closing.

 

Closing Statement ” has the meaning set forth in Section 1.03(a) .

 

COBRA ” means the requirements of Part 6 of Subtitle B of Title I of ERISA and Code Section 4980B and of any similar state Law.

 

Code ” means the United States Internal Revenue Code of 1986, as amended.

 

Company ” has the meaning set forth in the preamble.

 

Compliance Program ” has the meaning set forth in Section 4.17(a) .

 

Confidential Information ”  means any information that has value to the Company and is not generally known to its competitors, including client lists and information, design details, technical information and specifications, marketing techniques, plans and procedures, instruction manuals, know-how, trade secrets, information concerning market conditions, marketing and business information generally, scientific information, financial information, price policies and other material of whatever description regarding the products, services, affairs, businesses or method of carrying on business of the Company.

 

Contingent Payment ” has the meaning set forth in Section 1.04 .

 

Contingent Payment Statement ” has the meaning set forth in Section 1.04(f)(i) .

 

Contract ” means any oral or written agreement, instrument, license, document, lease, employee benefit or welfare plan or other business or commercial arrangement or commitment (in each case, including any extension, renewal, amendment or other modification thereof) to which such Person is a party or by which such Person is bound.

 

CPS Review Period ” has the meaning set forth in Section 1.04 .

 

Dispute Notice ” has the meaning set forth in Section 1.03(a) .

 

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Employee Pension Benefit Plan ” means any “employee pension benefit plan” as such term is defined in ERISA Section 3(2).

 

Employee Welfare Benefit Plan ” means any “employee welfare benefit plan” as such term is defined in ERISA Section 3(1).

 

Employment Agreement ” has the meaning set forth in Section 2.02(b)(v) .

 

Environmental and Safety Requirements ” means all Laws and all obligations under any Contract, concerning occupational or public health and safety, worker health and safety, pollution, or protection of the environment, including all those relating to the presence, use, production, generation, handling, transport, treatment, storage, disposal, distribution, labeling, testing, processing, discharge, release, threatened release, control, or cleanup of Hazardous Substances, each as amended and as now or hereafter in effect.

 

Environmental Lien ” means any Lien, either recorded or unrecorded, in favor of any Governmental Entity and relating to any Liability arising under Environmental and Safety Requirements.

 

Environmental Permits ” is defined in Section 4.21(b) .

 

ERISA ” means the Employee Retirement Income Security Act of 1974, as amended.

 

ERISA Affiliate ” means any entity, trade or business that is a member of a group described in Section 414(b), (c), (m) or (o) of the Code or Section 4001(b)(1) of ERISA, or that is a member of the same “controlled group” with the Company pursuant to Section 4001(a)(14) of ERISA.

 

Escrow Agent ” has the meaning set forth in Section 2.02(a)(i) .

 

Escrow Agreement ” has the meaning set forth in Section 2.02(a)(i) .

 

Escrow Amount ” has the meaning set forth in Section 2.02(a)(i) .

 

Estimated Closing Purchase Price ” has the meaning set forth in Section 1.02(b) .

 

Excess Cash on Hand Adjustment Amount ” means an amount, if any, equal to (A) the Cash on Hand at Closing, minus (B) $200,000.

 

Exchange Act ” means the Securities Exchange Act of 1934, as the same may be amended.

 

Extended Exposure Representations ” means those representations and warranties set forth in Sections 4.15 (Employee Benefits Plans), 4.16 (Medicare and Medicaid Participation), 4.17 (Regulatory Compliance), 4.19 (Compliance with Laws) and 4.20 (Environmental Matters).

 

Final Closing Cash Purchase Price ” has the meaning set forth in Section 1.03(a) .

 

Financial Statements ” has the meaning set forth in Section 4.05 .

 

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First Calculation Period ” has the meaning set forth in Section 1.04(d) .

 

Fundamental Representations ” means those representations and warranties set forth in Sections 3.01 (Organization and Authority), 3.03 (Ownership of the Shares), 3.04 (Stockholders’ Broker), 4.01 (Organization and Authority), 4.02 (Authorization), 4.03 (Capitalization; Subsidiaries), 4.04 (Absence of Conflicts), 4.08 (Tax Matters), 4.15 (Employee Benefit Plans), 4.20 (Affiliate Transactions), 4.22(a) (Tangible Assets; Title), 4.34 (Company Broker), 5.01 (Organization and Power), 5.02 (Authorization), and 5.04 (Buyer’s Broker).

 

GAAP ” means United Stated generally accepted accounting principles, consistently applied.

 

Governmental Entity ” means any government, agency, governmental department, commission, board, bureau, court, arbitration panel or instrumentality of the United States of America or any foreign government or any state, municipality or other political subdivision in or of any of the foregoing (whether now or hereafter constituted and/or existing) and any court, agency, instrumentality, regulatory commission or other entity exercising executive, legislative, judicial, regulatory or administrative functions of or pertaining to government.

 

Governmental Order ” means any order, writ, judgment, injunction, decree, stipulation, determination or award entered by or with any Governmental Entity.

 

Government Programs ” has the meaning set forth in Section 4.16(a) .

 

Guarantor ” and “ Guarantors ” has the meaning set forth in the preamble.

 

Hazardous Substances ” means any hazardous or otherwise regulated materials, substances or wastes, chemical substances or mixtures, pesticides, pollutants, contaminants, toxic chemicals, petroleum products or byproducts, asbestos, polychlorinated biphenyls, radioactive materials, noise or electromagnetic radiation or any other substances which is or may be harmful to human health or the environment or which is regulated, limited or prohibited under any Environmental and Safety Requirement.

 

HIPAA ” means the Health Insurance Portability and Accountability Act of 1996 (Pub. Law 104-191), as amended from time to time.

 

HITECH ” means the Health Information Technology for Economic Clinical Health Act, Division A, Title XIII § 1301 et. seq. of the American Recovery and Reinvestment Act of 2009, as amended from time to time.

 

Indebtedness ” of any Person, means, without duplication, the sum of (i) all obligations of such Person for borrowed money and any accrued interest, prepayment premiums, or other obligations related thereto, (ii) all obligations of such Person for evidenced by bonds, debentures, notes, or similar instruments, (iii) all obligations of such Person under conditional sale or title retention agreements relating to any property or assets purchased by such Person, (iv) all obligations of such Person issued or assumed as the deferred purchase price for property or services (other than trade accounts payable), including, without limitation, any earn-out or similar payment obligations, (v) all obligations of such Person as lessee under any capital leases,

 

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(vi) all obligations of such Person under any interest rate swap agreements or interest rate hedge agreements, (vii) obligations, whether contingent or liquidated, in respect of letters of credit (including standby and commercial), bankers’ and similar instruments, (viii) all other liabilities of such Person that are not current liabilities under GAAP, (ix) all obligations secured by an Lien on any assets of the Company, (x) all negative cash or overdraft balances, (xi) all unpaid Taxes of such Person for all pre-Closing Tax Periods, (xii) any interest, principal, prepayment penalty, fees, or expenses of such Person relating to any of the foregoing, and (xiii) any obligation of such Person, contingent or otherwise, guaranteeing or having the economic effect of guaranteeing any of the foregoing.

 

Indemnitee ” means any Person that is seeking indemnification from an Indemnitor pursuant to the provisions of this Agreement.

 

Indemnitor ” means any party hereto from which any Indemnitee is seeking indemnification pursuant to the provisions of this Agreement.

 

Interim Financial Statements ” has the meaning set forth in Section 4.05 .

 

Knowledge ” means, (x) in the case of a Person that is an individual, the actual knowledge of such individual after due inquiry, and (y) in the case of a Person that is not an individual, knowledge of the shareholders, members, partners, directors, managers, officers, trustees, or other individuals that have a similar position or similar powers and duties as the shareholders, members, partners, directors, managers, officers, or trustees of such Person, in each case after due inquiry has been performed by such individuals.

 

Law ” means all federal, state, local and foreign laws, statutes, codes, rules, regulations, ordinances, judgments, orders, decrees and the like of any Governmental Entity, including common law.

 

Leased Real Property ” means all leasehold or subleasehold estates and other rights to use or occupy any land, building, structures, improvements, fixtures or other interest in real property held by the Company.

 

Leases ” means all real property leases, subleases, licenses, concessions and other agreements (written or oral), including all amendments, extensions, renewals, guaranties and other agreements with respect thereto, to which the Company is a party, including the right to all security deposits and other amounts and instruments deposited by or on behalf of the Company thereunder.

 

Liability ” means any liability (whether known or unknown, whether asserted or unasserted, whether absolute or contingent, whether accrued or unaccrued, whether liquidated or unliquidated, and whether due or to become due), including any liability for Taxes.

 

Lien ” means any charge, claim, community or other marital property interest, condition, equitable interest, lien (whether voluntary, involuntary, statutory, or other), option, pledge, hypothecation, preference, priority, security interest, mortgage, right of way, easement, encroachment, servitude, conditional sale or other title retention arrangement, security or other deposits, right of first option, right of first refusal, or restriction of any kind, including, without

 

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limitation, any restriction on use, voting, transfer, receipt of income, or exercise of any other attribute of ownership.

 

Losses ” means any loss, Liability, obligation, Action, damage, deficiency, Tax, judgment, award, assessment, diminution of value, penalty, fine, cost or expense or whatever kind, in each case, whether or not arising out of third party claims (including interest, penalties, reasonable legal, consultant, accounting, and other professional fees, costs of sampling, testing, investigation, removal, treatment and remediation of contamination and fees, all amounts paid in investigation, defense or settlement of any of the foregoing, and all amount paid in connection with enforcing such Person’s indemnification rights hereunder).

 

Majority Stockholders ” means James Calnan, Renee Oliveri, Adam Oliveri and Mark Zatyrka.

 

Material Adverse Effect ” means any effect, condition or change that would be materially adverse to the Business, assets, condition (financial or otherwise), operating results, operations, or business prospects of the Company, taken as a whole, or on the ability of any Stockholder or the Company to consummate timely the transactions contemplated hereby and by the other documents contemplated under this Agreement, or any other effect, condition or change that would materially impair the Company’s ability to operate in the ordinary course or achieve its projected financial results or budget in any material respect (regardless of whether or not such adverse effect or change can be or has been cured at any time or whether Buyer has Knowledge of such effect or change on the date hereof).

 

Minority Stockholders ” means each stockholder of the Company that is not a Majority Stockholder.

 

Multiemployer Plan ” means an employee pension benefit plan that is defined in ERISA Sections 3(37) or 4001(a)(3).

 

Net Working Capital ” means, as of any date of determination, (A) current assets (accounts receivable, net of allowances and credits, inventory, due from employees, prepaid insurance and other prepaid expenses), minus (B) current liabilities (accounts payable, accrued pension expense, employee withholdings, accrued state income tax, accrued payroll, and other current accrued expenses), as of such date, calculated in accordance with GAAP applied on a consistent basis and without duplication.

 

Net Working Capital Adjustment Amount ” means, as of the Closing Date, (A) if the Net Working Capital at Closing exceeds the Target Net Working Capital, an amount equal to (i) the Net Working Capital at the Closing, minus (ii) the Target Net Working Capital, (B) if the Net Working Capital at Closing is less than the Target Net Working Capital, an amount equal to (i) the Net Working Capital at the Closing, minus (ii) the Target Net Working Capital, or (C) if the Net Working Capital at Closing is equal to the Target Net Working Capital, an amount equal to $0.00.

 

Neutral Accountant ” has the meaning set forth in Section 1.03(c) .

 

Notice of Claim ” has the meaning set forth in Section 9.05(a) .

 

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Objection Notice ” has the meaning set forth in Section 1.04(f)(ii) .

 

Permits ” means all permits, licenses, approvals, consents, waiver, authorizations, registrations, certificates, certificates of need, operating rights, variances and similar rights obtained, or required to be obtained, from Governmental Entities.

 

Person ” means an individual, a partnership, a limited liability company, a corporation, an association, a joint stock company, a trust, a joint venture, an unincorporated organization, any Governmental Entity or any similar entity.

 

Plan ” has the meaning set forth in Section 4.08(l) .

 

Pre-Closing Tax Period ” means any taxable period or portion thereof ending on or before the Closing Date or, as the context may require, all such periods and portions.  If a taxable period begins on or before the Closing Date and ends after the Closing Date, then the portion of the taxable period through the end of the Closing Date shall constitute a Pre-Closing Tax Period.

 

Proceeding ” means any Action, suit, claim, demand, summons, citations or subpoena, audit, hearing, public meeting or inquiry of any kind or nature whatsoever, civil, criminal, administrative, regulatory or otherwise, at law or in equity, whether or not such matter is before a Governmental Entity or any other Person.

 

Prohibited Transaction ” is defined in ERISA Section 406 and Code Section 4975.

 

Pro Rata Share ” has the meaning set forth in Section 1.03(d) .

 

Proprietary Rights ” means all rights or interests, whether as an owner, licensor, licensee or otherwise, along with all income, royalties, damages and payments due or payable at the Closing Date or thereafter, including damages and payments for past, present or future infringements or misappropriations thereof, the right to sue and recover for past infringements or misappropriations thereof and any and all corresponding rights or interests that, now or hereafter, may be secured throughout the world: (a) patents, patent applications, patent disclosures, inventions, industrial designs and models (whether or not patentable and whether or not reduced to practice) and any reissue, continuation, continuation-in-part, division, revision, extension or reexamination thereof, (b) trademarks, service marks, trade dress, logos, trade names, corporate names and domain names, together with all translations, adaptations, derivations, and combinations, including all goodwill associated therewith, (c) copyrights, registered or unregistered, database rights and works of authorship, (d) mask works, (e) rights of publicity and privacy relating to the use of names, likenesses, voices, signatures and biographical information of natural persons, (f) all registrations, applications and renewals for any of the foregoing, (g) trade secrets and Confidential Information (including ideas, formulae, compositions, know-how, manufacturing and production processes and techniques, research and development information, drawings, specifications, designs, plans, proposals, technical data, financial, business and marketing information and plans, and customer and supplier lists, pricing and cost information, and related information), (h) software, all rights with respect to computer software and software systems (including data, data compilations, codes, annotations, databases and related documentation), (i) websites, including public and non-public websites, intranet sites and FTP sites, (j) other proprietary rights, (k) rights of personality used in the Business, (l) licenses,

 

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license agreements, coexistence agreements, consent agreements, agreements to assign or other agreements to or from third parties regarding the foregoing, (m) all copies and tangible embodiments of the foregoing (in whatever form or medium), in each case including the items set forth on Schedule 4.10(a) , (n) all internet domain names, telephone numbers, and telephone directory listing, and (o) all moral rights or rights of attribution or integrity in any of the foregoing.

 

Purchase Price ” has the meaning set forth in Section 1.02(a) .

 

Purchase Price Allocation ” has the meaning set forth in Section 8.01(d) .

 

Real Property ” means the owned Real Property and the Leased Real Property.

 

Related Person ” means (A) with respect to an individual: (i) each other member of such individual’s nuclear family, (ii) any Person that is directly or indirectly controlled by such individual or any one or more members of such individual’s nuclear family, (iii) any Person in which members of such individual’s nuclear family hold (individually or in the aggregate) a material interest, and (iv) any Person with respect to which one or more members of such individual’s nuclear family serves as a director, officer, partner, manager, executor, or trustee (or in a similar capacity), and (B) with respect to a Person other than an individual: (i) any Person that directly or indirectly controls, is directly or indirectly controlled by, or is directly or indirectly under common control with, such specified Person, (ii) any Person that holds a material interest in such specified Person, (iii) each Person that serves as a director, officer, partner, manager, executor, or trustee of such specified Person (or in a similar capacity), (iv) any Person in which such specified Person holds a material interest, and (v) any Person with respect to which such specified Person serves as a general partner, manager, or a trustee (or in a similar capacity).

 

Released Claims ” has the meaning set forth in Section 7.11(a) .

 

Released Parties ” has the meaning set forth in Section 7.11(a) .

 

Releasing Parties ” has the meaning set forth in Section 7.11(a) .

 

Relevant Group ” means any affiliated, combined, consolidated, unitary or other group for Tax purposes, including (without limitation) an affiliated group of corporations within the meaning of Section 1504 of the Code.

 

Restricted Area ” has the meaning set forth in Section 7.09(b) .

 

Restricted Period ” has the meaning set forth in Section 7.09(a) .

 

Review Period ” has the meaning set forth in Section 1.03(a) .

 

Reviewed Financial Statements ” has the meaning set forth in Section 4.05 .

 

Second Calculation Period ” has the meaning set forth in Section1.04(d) .

 

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Section 338(h)(10) Election ” is defined in Section 8.01(i) .

 

Seller Indemnitees ” has the meaning set forth in Section 9.03(a) .

 

Stockholder ” and “ Stockholders ” each have the meaning set forth in the preamble.

 

Seller Warranty Losses ” has the meaning set forth in Section 9.03(b) .

 

Sellers’ Expenses ” means (A) all change of control, termination, severance, bonus or retention obligations which are triggered by the transactions contemplated by this Agreement including, without limitation, all such amounts due and owing to Panthera Global, and (B) all fees and expenses payable to any legal counsel, accountants or other advisors of any Stockholder, the Company or any of its Subsidiaries in connection with the transactions contemplated by this Agreement, in each case to the extent unpaid as of the Closing Date.

 

Sellers’ Representative ” has the meaning set forth in Section 11.01 .

 

Service Liability Claims ” means all Liabilities of the Company resulting from or under (i) any warranty made or allegedly made by the Company prior to the Closing Date with respect to any product it distributes or uses or any services it renders (“ Business Products ”), (ii) any alleged defect in, non-performance or deficiency of any nature in any Business Product sold or provided (as applicable) prior to the Closing Date, or (iii) any injury to person or property caused or alleged to be caused to any degree by any Business Product sold or provided (as applicable) prior to the Closing Date.

 

Shares ” has the meaning set forth in the recitals.

 

Standard Representations ” means all representations and warranties contained in this Agreement, any Schedule, any Exhibit, or any other certificate, document, or other writing delivered in connection with this Agreement (other than the Fundamental Representations and the Extended Exposure Representations).

 

Stockholder ” and “ Stockholders ” each have the meaning set forth in the preamble.

 

Straddle Period ” has the meaning set forth in Section 8.01(b) .

 

Subsidiaries ” means with respect to any Person, any corporation, partnership, association or other business entity of which (i) if a corporation, a majority of the total voting power of shares of stock entitled (without regard to the occurrence of any contingency) to vote in the election of directors is at the time owned or controlled, directly or indirectly, by that Person or one or more of the other Subsidiaries of that Person or a combination thereof, or (ii) if a partnership, association or other business entity, a majority of the partnership or other similar ownership interest thereof is at the time owned or controlled, directly or indirectly, by such Person or one or more Subsidiaries of that Person or a combination thereof.  For purposes hereof, a Person or Persons shall be deemed to have a majority ownership interest in a partnership, association or other business entity if such Person or Persons shall be allocated a majority of partnership, association or other business entity gains or losses or shall be or control the managing director or general partner of such partnership, association or other business entity.

 

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Systems ” has the meaning set forth in Section 4.11(a) .

 

Target Net Working Capital ” means $3,800,000.

 

Tax ” (and, with correlative meaning, “ Taxes ,” “ Taxable ” and “ Taxing ”) means (i) any federal, state, local or foreign income, gross receipts, franchise, estimated, alternative minimum, add-on minimum, sales, use, transfer, registration, value added, excise, natural resources, severance, stamp, occupation, premium, windfall profits, environmental (including under Section 59A of the Code), customs, duty, real property, real property gains, personal property, capital stock, social security, unemployment, disability, payroll, license, employee or other withholding or other tax assessment, fees, levy or other charge of any kind whatever imposed by any Governmental Entity, whether disputed or not, including any interest, penalties or additions to tax or additional amounts in respect of the foregoing, (ii) any Liability for or in respect of the payment of any amount of a type described in clause (i) of this definition arising as a result of being or having been a member of a Relevant Group and (iii) any Liability for or in respect of the payment of any amount of a type described in clause (i) or (ii) of this definition as a transferee or successor, by Contract or otherwise.

 

Tax Contest ” has the meaning set forth in Section 8.01(j) .

 

Tax Return ” means any return, declaration, report, claim for refund, information return or other document (including any related or supporting schedules, statements or information) filed or required to be filed in connection with the determination, assessment or collection of Taxes or the administration of any Law relating to any Taxes.

 

Taxing Authority ” means any Governmental Entity having or purporting to exercise jurisdiction with respect to any Tax.

 

Third Party Claim ” has the meaning set forth in Section 9.05(a) .

 

Third Party Defense ” has the meaning set forth in Section 9.05(b) .

 

12.02                  Interpretation.

 

(a)                                  For purposes of this Agreement, (a) the words “include,” “includes” and “including” shall be deemed to be followed by the words “without limitation”, (b) the word “or” is not exclusive, and (c) the words “herein,” “hereof,” “hereby,” “hereto” and “hereunder” refer to this Agreement as a whole.

 

(b)                                  Unless the context otherwise requires, references herein:

 

(i)                                      to the singular includes the plural and vice versa;

 

(ii)                                   to any Person includes such Person’s successors and assigns, if applicable, but only if such successors and assigns are permitted by this Agreement, and reference to a Person in a particular capacity excludes such Person in any other capacity.

 

(iii)                                to a gender includes the other gender;

 

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(iv)                               to a “copy” or “copies” of any document, instrument, or agreement means a copy or copies that are complete and correct;

 

(v)                                  to all accounting terms will be interpreted, and all accounting determinations under this Agreement will be made, in accordance with GAAP;

 

(vi)                               to Articles, Sections, schedules and exhibits mean the Articles and Sections of, and schedules and exhibits attached to, this Agreement;

 

(vii)                            to an agreement, instrument or other document means such agreement, instrument or other document as amended, supplemented and modified from time to time to the extent permitted by the provisions thereof;

 

(viii)                         to a Law means such Law as amended from time to time and includes any successor legislation thereto and any regulations promulgated thereunder; and

 

(ix)                               to any section or other provision of any Law means that provision of such Law as from time to time in effect, including any amendment, modification, codification, replacement, or reenactment of such section or other provision;

 

(c)                                   The parties intend that each representation, warranty and covenant contained herein shall have independent significance.  If any party has breached any representation, warranty or covenant contained herein in any respect, the fact that there exists another representation, warranty or covenant relating to the same subject matter (regardless of the relative levels of specificity) that such party has not breached shall not detract from or mitigate the fact that such party is in breach of the first representation, warranty or covenant.

 

(d)                                  This Agreement was negotiated by the parties with the benefit of legal representation, and any rule of construction or interpretation otherwise requiring this Agreement to be construed or interpreted against any party as having been drafted by it will not apply to any construction or interpretation of this Agreement.  The schedules and exhibits referred to herein shall be construed with, and as an integral part of, this Agreement to the same extent as if they were set forth verbatim herein.

 

(e)                                   The headings and captions contained in this Agreement are for convenience of reference only, shall not be deemed to be part of this Agreement, and shall not be referred to in connection with the construction or interpretation of this Agreement.

 

ARTICLE XIII.

MISCELLANEOUS

 

13.01                  Amendment and Waiver.

 

This Agreement may be amended, or any provision of this Agreement may be waived; provided , that any such amendment or waiver shall be binding upon Buyer only if set forth in a writing executed by Sellers’ Representative and referring specifically to the provision alleged to have been amended or waived, and any such amendment or waiver shall be binding upon Buyer only if set forth in a writing executed by Buyer and referring specifically to the provision alleged

 

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to have been amended or waived.  No course of dealing between or among the parties shall be deemed effective to modify, amend or discharge any part of this Agreement or any rights or obligations of any party under or by reason of this Agreement and a waiver of any provision by any party on one occasion shall not be deemed to be a waiver of the same or any other breach on a future occasion.

 

13.02                  Notices.

 

All notices, demands and other communications to be given or delivered under or by reason of the provisions of this Agreement shall be in writing and shall be deemed to have been given (i) when personally delivered, sent by telecopy or sent by reputable overnight express courier (charges prepaid), or (ii) three days following mailing by certified or registered mail, postage prepaid and return receipt requested.  Unless another address is specified in writing, notices, demands and communications to any Stockholder and Buyer shall be sent to the addresses indicated below:

 

Notices to the Stockholders :

 

James Calnan

79 Kowal Road

Chicopee, MA 01020

Telephone No. (413) 592-4067

Email: jbcalnan@charter.net

 

with a copy to:

(which shall not constitute notice to the Stockholders)

 

Doherty, Wallace, Pillsbury & Murphy P.C.

1414 Main Street

Springfield, MA 01144-1900

Fax No. (413) 734-3910

Email: gschmidt@dwpm.com

Attn: Gregory A. Schmidt

 

Notices to Buyer :

 

Diplomat Specialty Pharmacy, Inc.

4100 South Saginaw

Flint, Michigan 48507

Fax:

Attn: Phil Hagerman, Sean Whelan and Ryan Ruzziconi

 

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with a copy to:

(which shall not constitute notice to Buyer):

 

Honigman Miller Schwartz and Cohn LLP

2290 First National Building

660 Woodward Avenue

Detroit, Michigan  48226

Fax Number: (313) 465-7393

Attn: Michael D. DuBay

 

13.03                  Expenses.

 

Except as otherwise provided in this Agreement or the other documents to be delivered pursuant to this Agreement, (i) Buyer will bear its respective fees and expenses incurred in connection with the preparation, negotiation, execution, and performance of this Agreement and the consummation and performance of the transactions contemplated hereunder, including all fees and expenses of its advisors and representatives, and (ii) the Stockholders, jointly and severally, will bear the respective fees and expenses incurred by the Company and any Stockholder in connection with the preparation, negotiation, execution, and performance of this Agreement and the consummation and performance of the transactions contemplated hereunder, including the Sellers’ Expenses and all fees and expenses of its advisors and representatives.  To the extent such fees and expenses have been incurred by the Company, the Stockholders will reimburse the Company for such fees and expenses prior to the Closing.

 

13.04                  Assignment and Successors.

 

(a)            This Agreement and all of the provisions hereof shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns, except that neither this Agreement nor any of the rights, interests or obligations hereunder may be assigned or delegated by any Stockholder without the prior written consent of Buyer.  Any purported assignment of rights or delegation of obligations in violation of this Section 13.04 will be void.

 

(b)            Subject to the provisions of Section 1.04(h) , upon thirty (30) days prior written notice to the Stockholders and provided the assignee expressly assumes all of Buyer’s obligations hereunder and under any document executed in connection herewith, Buyer may (at any time following the Closing), in its sole discretion, assign this Agreement and its rights and obligations hereunder, including its rights and obligations under any document executed in connection herewith, in whole or in part, in connection with a merger or consolidation involving Buyer or in connection with a sale of any limited liability company interests or assets of Buyer or its Affiliates or other disposition of all or any portion of the Business.  Buyer may assign any and all of its rights pursuant to this Agreement, including its rights to indemnification, to any of its lenders as collateral security.

 

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13.05                  No Waiver.

 

Neither any failure nor any delay by any party in exercising any right, power, or privilege under this Agreement or any of the documents referred to in this Agreement will operate as a waiver of such right, power, or privilege, and no single or partial exercise of any such right, power, or privilege will preclude any other or further exercise of such right, power, or privilege or the exercise of any other right, power, or privilege.  To the maximum extent permitted by applicable Law, (i) no claim or right arising out of this Agreement or any of the documents referred to in this Agreement can be waived by a party, in whole or in part, unless made in a writing signed by such party, (ii) a waiver given by a party will only be applicable to the specific instance for which it is given, and (iii) no notice to or demand on a party will (x) waive or otherwise affect any obligation of that party or (y) affect the right of the party giving such notice or demand to take further action without notice or demand as provided in this Agreement or the documents referred to in this Agreement.

 

13.06                  Severability.

 

Whenever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement or the application of any such provision to any Person or circumstance shall be held to be prohibited by or invalid, illegal or unenforceable under applicable law in any respect by a court of competent jurisdiction, such provision shall be ineffective only to the extent of such prohibition or invalidity, illegality or unenforceability, without invalidating the remainder of such provision or the remaining provisions of this Agreement.  Furthermore, in lieu of such illegal, invalid or unenforceable provision, there shall be added automatically as a part of this Agreement a legal, valid and enforceable provision as similar in terms to such illegal, invalid, or unenforceable provision as may be possible.

 

13.07                  Further Assurances.

 

The parties will (i) execute and deliver to each other such other documents, and (ii) do such other acts and things as a party may reasonably request for the purpose of carrying out the intent of this Agreement, the transactions contemplated hereunder, and the documents to be delivered pursuant to this Agreement.

 

13.08                  Entire Agreement.

 

This Agreement and the agreements and documents referred to herein contain the entire agreement and understanding between the parties hereto with respect to the subject matter hereof and supersede all prior agreements and understandings, whether written or oral, relating to such subject matter in any way (including, without limitation, the letter of intent, dated as of August 30, 2013, by and among Diplomat Pharmacy, Inc. and the Company, James Calnan, Renee Oliveri, Adam Oliveri and Mark Zatryka).

 

13.09                  No Referrals.

 

Nothing in this Agreement shall be construed to require the Company, the Stockholders or Buyer or their respective Affiliates to make referrals of patients to one another or any related

 

73



 

Person as a result of, or in exchange for, this Agreement or any document executed in connection herewith.  No payment to be made under this Agreement or any document executed in connection herewith shall be in return for the referral of patients to, or in return for the arranging for, ordering, purchasing or leasing of products or services from any of the parties, or from any related Person thereof, in violation of applicable Law, including the Anti-Kickback Statute (42 U.S.C. § 1320a-7b).

 

13.10                  Remedies Cumulative.

 

Except as otherwise expressly set forth in this Agreement, the rights and remedies of the parties are cumulative (and not alternative) and are in addition to any other rights and remedies that the parties might have at Law or in equity (including, without limitation, claims for breach of contract, willful misconduct, fraud and misrepresentation, negligent misrepresentation, federal and state securities laws, deceptive practice acts, tort, federal and state statutory claims, and any other available remedies).

 

13.11                  Counterparts; Electronic Signatures.

 

(a)            This Agreement and other documents to be delivered pursuant to this Agreement may be executed in one or more counterparts, each of which will be deemed to be an original copy and all of which, when taken together, will be deemed to constitute one and the same agreement or document, and will be effective when counterparts have been signed by each of the parties and delivered to the other parties.

 

(b)            A manual signature on this Agreement or other documents to be delivered pursuant to this Agreement or an image of which shall have been transmitted electronically, will constitute an original signature for all purposes.  The delivery of copies of this Agreement or other documents to be delivered pursuant to this Agreement, including executed signature pages where required, by electronic transmission will constitute effective delivery of this Agreement or such other document for all purposes.

 

13.12                  Governing Law.

 

The Law of the State of Connecticut shall govern all questions concerning the construction, validity, interpretation and enforceability of this Agreement and the exhibits and schedules attached hereto, and the performance of the obligations imposed by this Agreement, without giving effect to any choice of law or conflict of law rules or provisions (whether of the State of Connecticut or any other jurisdiction) that would cause the application of the Laws of any jurisdiction other than the State of Connecticut.

 

13.13                  Consent to Jurisdiction.

 

Each party irrevocably submits to the exclusive jurisdiction of (i) the state courts located in Connecticut, and (ii) the United States District Court for the District of Connecticut, for the purposes of any Action arising out of this Agreement or any transaction contemplated by this Agreement.  Each party agrees to commence any such Action either in such courts.  Each party further agrees that service of any process, summons, notice or document by U.S. registered mail to such party’s respective address set forth above shall be effective service of process for any

 

74



 

Action with respect to any matters to which it has submitted to jurisdiction in this Section 13.13 .  Each party irrevocably and unconditionally waives any objection to the laying of venue of any Action arising out of this Agreement or the transactions contemplated by this Agreement in (x) the state courts located in Connecticut, or (y) the United Stated District Court for the District of Connecticut, and hereby further irrevocably and unconditionally waives and agrees not to plead or claim in any such court that any such Action brought in any such court has been brought in an inconvenient forum.  EACH PARTY HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE ACTIONS OF SUCH PARTY IN THE NEGOTIATION, ADMINISTRATION, PERFORMANCE AND ENFORCEMENT HEREOF.

 

13.14                  No Third Party Beneficiaries.

 

Other than the Indemnitees and the parties and their permitted assigns, no Person will have any legal or equitable right, remedy, or claim under or with respect to this Agreement.  This Agreement may be amended or terminated, and any provision of this Agreement may be waived, without the consent of any Person who is not a party to the Agreement.

 

13.15                  Schedules.

 

Nothing in the schedules to this Agreement will be deemed adequate to disclose an exception to a representation or warranty made herein, unless each of the relevant schedules identifies (without any internal cross-references) the exception with reasonable particularity and describes the relevant facts in reasonable detail.  Without limiting the generality of the foregoing, the mere listing (or inclusion of a copy) of a document or other item shall not be deemed adequate to disclose an exception to a representation or warranty made herein (unless the representation or warranty has to do with the existence of the document or other item itself).

 

(signature pages follow)

 

75



 

IN WITNESS WHEREOF, the parties have caused this Stock Purchase Agreement to be executed as of the date first written above.

 

 

BUYER:

 

 

 

DIPLOMAT PHARMACY, INC.

 

 

 

By:

/s/ Philip Hagerman

 

Name: Philip Hagerman

 

Title: Chief Executive Officer

 

[Signatures to Stock Purchase Agreement continue on following pages]

 



 

[Signatures to Stock Purchase Agreement continued]

 

 

MAJORITY STOCKHOLDERS:

 

 

 

 

 

By:

/s/ James Calnan

 

 

James Calnan

 

 

 

 

 

By:

/s/ Renee Oliveri

 

 

Renee Oliveri

 

 

 

 

 

By:

/s/ Adam Oliveri

 

 

Adam Oliveri

 

 

 

 

 

By:

/s/ Mark Zatyrka

 

 

Mark Zatyrka

 

 

 

MINORITY STOCKHOLDERS

 

solely with respect to ARTICLE I , Sections 2.02(b)(ix) , 3.01 , 3.03 , 7.09 , 7.11 , 8.01(c) , 8.01(d) , 8.01(h) , 8.01(i) , 11.01 , 11.02 , ARTICLE XII and ARTICLE XIII :

 

 

 

By:

/s/ Patricia Keenan

 

 

Patricia Keenan

 

 

 

 

 

 

 

By:

/s/ Harold F. Keenan

 

 

Harold F. Keenan

 

 

 

 

 

 

 

By:

/s/ Edward Belanger

 

 

Edward Belanger

 

 

 

 

 

 

 

By:

/s/ Lucille Belanger

 

 

Lucille Belanger

 

 

 

 

 

 

 

By:

/s/ Thomas Keenan

 

 

Thomas Keenan

 

 

 

 

 

 

 

By:

/s/ Susan Keenan

 

 

Susan Keenan

 

[Signatures to Stock Purchase Agreement continue on following pages]

 



 

[Signatures to Stock Purchase Agreement continued]

 

 

By:

/s/ Kathleen A. Hurst-Brown

 

 

Kathleen A. Hurst-Brown

 

 

 

 

 

 

 

By:

/s/ Nancy Walmer

 

 

Nancy Walmer

 

 

 

 

 

 

 

By:

/s/ Gail Daniele

 

 

Gail Daniele

 

 

 

 

 

 

 

By:

/s/ Denise Mackey

 

 

Denise Mackey

 

[Signatures to Stock Purchase Agreement continue on following pages]

 



 

[Signatures to Stock Purchase Agreement continued]

 

 

COMPANY:

 

 

 

American Homecare Federation, Inc.

 

 

 

 

 

By:

/s/ James B. Calnan

 

Name: James B. Calnan

 

Title: President/CEO

 




Exhibit 2.2

 

EXECUTION VERSION

 

 

STOCK PURCHASE AGREEMENT

 

by and among

 

DIPLOMAT PHARMACY, INC.,

 

MEDPRO RX, INC.,

 

AND

 

THE OTHER PARTIES NAMED HEREIN

 

June 27, 2014

 

 

 



 

TABLE OF CONTENTS

 

STOCK PURCHASE AGREEMENT

1

 

 

ARTICLE I. PURCHASE AND SALE

1

 

1.01

Purchase and Sale of the Shares

1

 

1.02

Purchase Price

1

 

1.03

Cancellation of Options

2

 

1.04

Post-Closing Purchase Price Adjustment

3

 

1.05

Contingent Payments

5

 

1.06

Tax Withholding

10

 

 

 

 

ARTICLE II. CLOSING

10

 

2.01

Closing

10

 

2.02

Closing Deliveries

10

 

 

ARTICLE III. REPRESENTATIONS AND WARRANTIES REGARDING THE STOCKHOLDERS

13

 

3.01

Organization and Authority

13

 

3.02

Absence of Conflicts

14

 

3.03

Ownership of the Shares

14

 

3.04

Stockholders’ Broker

14

 

3.05

Litigation

14

 

 

ARTICLE IV. REPRESENTATIONS AND WARRANTIES REGARDING COMPANY

15

 

4.01

Organization and Power

15

 

4.02

Authorization

15

 

4.03

Capitalization; Subsidiaries

15

 

4.04

Absence of Conflicts

16

 

4.05

Financial Statements

16

 

4.06

Certain Developments

17

 

4.07

Real Property

18

 

4.08

Tax Matters

20

 

4.09

Contracts and Commitments

22

 

4.10

Proprietary Rights

25

 

4.11

Systems

27

 

4.12

Governmental Licenses and Permits

28

 

4.13

Employees

28

 

4.14

Immigration Matters

29

 

4.15

Employee Benefit Plans

29

 

4.16

Medicare and Medicaid Participation

32

 

4.17

Compliance Program

32

 

4.18

HIPAA Compliance

33

 

4.19

Compliance with Laws

33

 

4.20

Affiliate Transactions

34

 

4.21

Environmental Matters

34

 

i



 

 

4.22

Tangible Assets

36

 

4.23

Undisclosed Liabilities

36

 

4.24

Notes and Accounts Receivable

36

 

4.25

Powers of Attorney

36

 

4.26

Insurance

36

 

4.27

Service Liability Claims

37

 

4.28

Customers

38

 

4.29

Suppliers

38

 

4.30

Officers and Directors

38

 

4.31

Bank Accounts

38

 

4.32

Litigation

38

 

4.33

Books and Records

39

 

4.34

Company Broker

39

 

4.35

Disclosure

39

 

 

ARTICLE V. REPRESENTATIONS AND WARRANTIES OF BUYER

39

 

5.01

Organization and Power

39

 

5.02

Authorization

40

 

5.03

Absence of Conflicts

40

 

5.04

Buyer’s Broker

40

 

5.05

Financial Statements

40

 

5.06

Capitalization; Subsidiaries

41

 

5.07

Litigation

41

 

5.08

Undisclosed Liabilities

41

 

5.09

Compliance with Laws

42

 

5.10

Certain Developments

42

 

5.11

Exchanged Equity

42

 

5.12

Disclosure

42

 

 

ARTICLE VI. COVENANTS

43

 

6.01

Governmental Approvals and Consents

43

 

6.02

Press Releases and Announcements

43

 

6.03

Further Transfers

43

 

6.04

Non-Solicitation, Non-Competition and Confidentiality

43

 

6.05

Customer and Other Business Relationships

45

 

6.06

Stockholders’ Release

45

 

 

 

 

ARTICLE VII. TAX MATTERS

46

 

7.01

Tax Matters

46

 

7.02

Treatment of Indemnification Payments

54

 

7.03

Other Rights and Remedies Not Affected

54

 

7.04

Overlap

54

 

 

ARTICLE VIII. INDEMNIFICATION

54

 

8.01

Survival

54

 

8.02

Indemnification by the Stockholders

54

 

8.03

Indemnification by Buyer

56

 

ii



 

 

8.04

Time Limitations

56

 

8.05

Indemnification Procedures for Third Party Claims

57

 

8.06

Indemnification Procedures for Non-Third Party Claims

60

 

8.07

Contingent Claims

60

 

8.08

Effect of Investigation; Waiver

60

 

8.09

Setoff Rights

61

 

8.10

Treatment of Indemnification Payments

61

 

8.11

Exclusive Remedy

61

 

8.12

Payment of Indemnification

61

 

8.13

Mitigation

62

 

8.14

Calculation of Losses

62

 

 

ARTICLE IX. SELLERS’ REPRESENTATIVE

62

 

9.01

Designation

62

 

9.02

Authority; Successor

62

 

 

ARTICLE X. DEFINITIONS

63

 

10.01

Definitions

63

 

10.02

Interpretation

76

 

 

ARTICLE XI. MISCELLANEOUS

77

 

11.01

Amendment and Waiver

77

 

11.02

Notices

77

 

11.03

Expenses

79

 

11.04

Assignment and Successors

79

 

11.05

No Waiver

79

 

11.06

Severability

80

 

11.07

Further Assurances

80

 

11.08

Entire Agreement

80

 

11.09

No Referrals

80

 

11.10

Remedies Cumulative

81

 

11.11

Counterparts; Electronic Signatures

81

 

11.12

Governing Law

81

 

11.13

Waiver of Jury Trial

81

 

11.14

No Third Party Beneficiaries

81

 

11.15

Schedules

82

 

11.16

Post-Closing Representation of the Stockholders

82

 

iii



 

EXHIBITS

 

Exhibit A

-

Option Cancellation Agreement

Exhibit B

-

Escrow Agreement

Exhibit C

-

Buyer Exchange Documents

Exhibit D

-

Employment Agreement

Exhibit E

-

Headquarters Property Lease

Exhibit F

-

Gross-Up Schedule

Exhibit G

-

Purchase Price Allocation Schedule

 

SCHEDULES

 

Schedule 1.04(f)

-

BCBSNC AR

Schedule 1.05(c)(viii)

-

Actual Gross Profit Sample Calculations

Schedule 1.05(e)

-

Contingent Payment Pro Rata Share

Schedule 2.02(b)(iv)

-

Affiliate Contracts

Schedule 3.02

-

Absence of Conflicts

Schedule 3.03

-

Ownership of Shares

Schedule 4.01

-

Organization and Power

Schedule 4.03(a)

-

Company Capitalization

Schedule 4.04

-

Absence of Conflicts

Schedule 4.05

-

Company Financial Statements

Schedule 4.06

-

Certain Company Developments

Schedule 4.07(a)

-

Leased Properties

Schedule 4.07(c)

-

Other Real Property

Schedule 4.08

-

Tax Matters

Schedule 4.09(a)

-

Contracts and Commitments

Schedule 4.09(b)

-

Absence of Breach

Schedule 4.10(a)

-

Proprietary Rights

Schedule 4.10(b)

-

Ownership; Infringement

Schedule 4.11(a)

-

Computer & Telephone Systems

Schedule 4.11(b)

-

Systems; Exceptions

Schedule 4.12

-

Governmental Licenses and Permits

Schedule 4.13(a)

-

Terminated Employees

Schedule 4.13(b)

-

Employee Agreements

Schedule 4.13(c)

-

Labor Agreements

Schedule 4.13(d)

-

Severance, Termination, and Other Obligation

Schedule 4.13(e)

-

Employee List and Compensation

Schedule 4.14

-

Immigration Matters

Schedule 4.15(a)

-

Employee Benefit Plans

Schedule 4.16

-

Provider Numbers

Schedule 4.17(b)

-

Excluded Persons

 

iv



 

Schedule 4.19

-

Company Compliance with Laws

Schedule 4.20

-

Affiliate Transactions

Schedule 4.21

-

Environmental Matters

Schedule 4.22(a)

-

Tangible Assets

Schedule 4.25

-

Powers of Attorney

Schedule 4.26

-

Insurance

Schedule 4.27(a)

-

Service Liability Claims

Schedule 4.27(b)

-

Product Warranties and Representations

Schedule 4.27(c)

-

Material Conformity with Express and Implied Warranties

Schedule 4.27(d)

-

Standard Terms and Conditions

Schedule 4.28(a)

-

Customers

Schedule 4.28(b)

-

Significant Changes to Customers

Schedule 4.29(a)

-

Suppliers

Schedule 4.29(b)

-

Significant Changes to Suppliers

Schedule 4.30

-

Officers and Directors

Schedule 4.31

-

Bank Accounts and Authorized Signatories

Schedule 4.32

-

Company Litigation

Schedule 4.34

-

Company Broker

Schedule 5.05

-

Buyer Financial Statements

Schedule 5.06(a)

-

Buyer Capitalization

Schedule 5.06(b)

-

Buyer Subsidiaries

Schedule 5.07

-

Buyer Litigation

Schedule 5.09

-

Certain Buyer Developments

Schedule 8.02(a)(iv)

-

Indemnification Schedule

 

v


 

STOCK PURCHASE AGREEMENT

 

This Stock Purchase Agreement (this “ Agreement ”) is entered into as of June 27, 2014, by and among Diplomat Pharmacy, Inc., a Michigan corporation (“ Buyer ”), MedPro Rx, Inc., a North Carolina corporation (the “ Company ”), and Nancy McFarlane, Ronald McFarlane, Ronald McFarlane 2011 Irrevocable Family Trust and Mark Poteet (each, a “ Stockholder ” and collectively, the “ Stockholders ”).  Capitalized terms used and not otherwise defined in this Agreement have the meanings set forth in ARTICLE X .

 

RECITALS

 

WHEREAS, the Stockholders together own all of the issued and outstanding common stock of the Company;

 

WHEREAS, each Stockholder desires to sell to Buyer, and Buyer desires to purchase from each Stockholder, all of the issued and outstanding shares of capital stock of the Company owned by such Stockholder (collectively, the “ Shares ”) for the consideration and subject to the terms and conditions of this Agreement; and

 

WHEREAS, pursuant to those certain agreements in the form attached as Exhibit A hereto, to be executed and delivered on or prior to the Closing Date (each, an “ Option Cancellation Agreement ” and, collectively, the “ Option Cancellation Agreements ”), by and between each Optionholder and the Company, each Optionholder will agree to surrender for cancellation immediately prior to the Closing Date all Options owned by such Optionholder in exchange for the applicable Option Cancellation Amount, net of any applicable withholding Tax, to be paid by the Company at Closing.

 

NOW, THEREFORE, in consideration of the premises, representations and warranties and mutual covenants contained herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto, intending to be legally bound, hereby agree as follows:

 

ARTICLE I.
PURCHASE AND SALE

 

1.01                         Purchase and Sale of the Shares.

 

Subject to the terms and conditions of this Agreement, and in reliance upon the representations, warranties, and covenants contained in this Agreement, at the Closing, Buyer shall purchase all of the Shares from the Stockholders, and the Stockholders shall sell, transfer, and convey the Shares to Buyer, free and clear of any Liens.

 

1.02                         Purchase Price.

 

(a)                                  The aggregate purchase price for the Shares is (subject to adjustment pursuant to Section 1.04 ) equal to the following: (i) Fifty-One Million Five Hundred Thousand Dollars ($51,500,000), plus (or minus if such number is negative) (ii) the Net Working Capital Adjustment Amount (if applicable), plus (iii) the Tax Gross Up Amount, minus (iv) the Closing

 



 

Indebtedness, minus (v) the Sellers’ Expenses, minus (vi) the Aggregate Option Cancellation Amount, plus (vii) the Cash on Hand Adjustment Amount (the sum of (i) through (vii) above is referred to herein as the “ Closing Cash Purchase Price ”), plus (viii) the Contingent Payments, if any, payable to the Stockholders pursuant to Section 1.05 , plus (ix) 84.31703 shares of Class B non-voting common stock of Buyer, which will be allocated among the Stockholders in accordance with their respective Pro Rata Share at the Closing pursuant to the Buyer Exchange Documents (collectively, the “ Exchanged Equity ”), which Exchanged Equity, for purposes of this Agreement, is deemed to have an aggregate value on the Closing Date of $12,000,000.  The Exchanged Equity, together with the Closing Cash Purchase Price and the Contingent Payments, is referred to herein as the “ Purchase Price .”

 

(b)                                  On or before the Closing Date, Buyer and Sellers’ Representative shall agree on a good faith estimate of the Closing Cash Purchase Price (with such amount being referred to herein as the “ Estimated Closing Cash Purchase Price ”).

 

(c)                                   The Closing Cash Purchase Price shall be paid by Buyer to the Stockholders at the Closing in accordance with Section 2.02(a) .

 

1.03                         Cancellation of Options .

 

Immediately prior to the Closing Date and in accordance with the terms and subject to the conditions of the applicable Option Cancellation Agreement, each Option granted under the Option Plan, which is outstanding, vested and exercisable immediately prior to the Closing, shall be canceled by the Company and converted into the right to receive the applicable Option Cancellation Amount as set forth therein in consideration for such cancellation.  The amounts (after withholding) owed by the Company to Optionholders for their cancelled Options under this Section 1.03 , shall be paid to such Optionholders by the Company at Closing in accordance with the terms and conditions of the Option Cancellation Agreements, which payments shall be funded from the Purchase Price. The Company shall take all actions required to cause the cancellation of all unvested Options outstanding at or as of the Closing (each, an “ Unvested Option ”), with effect as of the Closing without any Liability to Buyer or the Company in accordance with the terms thereof (or as amended, if necessary, to effect the foregoing).  At the Closing, each Unvested Option shall terminate and cease to be outstanding without payment of consideration therefor and each holder thereof shall cease to have any rights with respect thereto.  At or prior to the Closing, the Company shall terminate all plans or other arrangements pursuant to which any Options have been granted and the provisions in any other plan, program or arrangement providing for the issuance or grant of any other interest in respect of the Company’s equity securities shall be canceled as of the Closing.  Prior to the Closing, the Company shall ensure that following the Closing no participant in any option plan or other plans, programs or arrangements shall have any right thereunder to acquire any equity securities of the Company.  The Company shall take all actions that may be necessary or that Buyer considers reasonably appropriate to effectuate the provisions of this Section 1.03 . For the avoidance of doubt, the Aggregate Option Cancellation Amount shall not be included in any calculation of the Net Working Capital Adjustment Amount or Closing Indebtedness.

 

2



 

1.04                         Post-Closing Purchase Price Adjustment.

 

(a)                                  Within 90 days following the Closing Date, Buyer shall prepare and deliver to Sellers’ Representative a statement of the Cash on Hand Adjustment Amount (if any), Net Working Capital Adjustment Amount (if any), the Tax Gross Up Amount, the Closing Indebtedness, and the Sellers’ Expenses, in each case as of the Closing Date and prepared in accordance with GAAP along with Buyer’s calculation of the resulting Closing Cash Purchase Price (the “ Closing Statement ”).  Sellers’ Representative shall have a period (the “ Review Period ”) of 30 days from the delivery of the Closing Statement to review such statement.  Buyer shall provide Sellers’ Representative and its representatives with reasonable access to all records and work papers necessary to compute and verify the Closing Statement.  If, as a result of such review, Sellers’ Representative disagrees with the Closing Statement, Sellers’ Representative shall deliver to Buyer a written notice of disagreement (a “ Dispute Notice ”) prior to the expiration of the Review Period setting forth in full detail the basis for such dispute, the specific items and amounts in dispute and Sellers’ Representative’s alternative calculation of the Closing Statement (including the alternative calculations of each disputed line item).  The Closing Cash Purchase Price, as finally determined pursuant to this Section 1.04 , shall be referred to as the “ Final Closing Cash Purchase Price .”

 

(b)                                  If Sellers’ Representative either (i) fails to deliver a Dispute Notice to Buyer prior to the expiration of the Review Period, or (ii) delivers a written notice to Buyer accepting the Closing Statement, then, in either case, the amount of the Closing Cash Purchase Price reflected by or contained in the Closing Statement shall be the Final Closing Cash Purchase Price and shall be final, binding and conclusive upon the parties.

 

(c)                                   If Sellers’ Representative delivers a Dispute Notice to Buyer in a timely manner, then Sellers’ Representative and Buyer shall attempt in good faith to resolve such dispute within 30 days from the delivery of such Dispute Notice.  If Sellers’ Representative and Buyer cannot reach agreement within such 30 day period, then the dispute shall be promptly referred to a nationally recognized certified public accounting firm jointly selected by Buyer and Sellers’ Representative, which shall initially be Grant Thornton LLP (the “ Neutral Accountant ”).  Each party shall thereupon furnish to the Neutral Accountant such reasonable work papers and other documents and information relating to the calculation of the Closing Statement as that party desires or as the Neutral Accountant requests, and each party will be afforded the opportunity to present information to the Neutral Accountant and to discuss the determination of the Closing Statement with the Neutral Accountant.  The Neutral Accountant shall only resolve such contested items that were properly included by Sellers’ Representative in a timely Dispute Notice and will resolve such items as promptly as may be reasonably practicable.  Following such review, the Neutral Accountant shall deliver a written opinion setting forth its final determination of the Final Closing Cash Purchase Price, which shall be final, binding and conclusive on the Stockholders and Buyer and shall be used in computing the amount of any adjustment pursuant to this Section 1.04 .  All fees and expenses of the Neutral Accountant shall be borne by the party whose estimate of the Purchase Price as submitted to the Neutral Accountant is farthest from the Final Closing Cash Purchase Price as finally determined by the Neutral Accountant.

 

3



 

(d)                                  If the Final Closing Cash Purchase Price exceeds the Estimated Closing Cash Purchase Price, then Buyer shall, within seven Business Days of the determination date, pay to Sellers’ Representative (which Sellers’ Representative shall deliver to the Stockholders in accordance with the percentage set forth opposite each such Stockholder’s name on  Schedule 4.03(a)  (such allocation percentage is referred to herein as each Stockholder’s “ Pro Rata Share ”)) such difference by wire transfer of immediately available funds to an account designated by Sellers’ Representative in writing (or in the absence of any such designation, by corporate check mailed to Sellers’ Representative).

 

(e)                                   If the Estimated Closing Cash Purchase Price exceeds the Final Closing Cash Purchase Price, then the Stockholders shall (and Sellers’ Representative shall cause the Stockholders to), within seven Business Days of the determination date, pay Buyer such difference by wire transfer of immediately available funds to an account designated by Buyer in writing (or in the absence of any such designation, by corporate check mailed to Buyer).  If the Stockholders fail to make such a payment, then Buyer shall be entitled to receive funds in an amount equal to such payment from the Escrow Account by providing notice to the Escrow Agent in accordance with the terms of the Escrow Agreement.

 

(f)                                    The accounts receivable set forth on Schedule 1.04(f)  (the “ BCBSNC AR ”) will be included in accounts receivable for purposes of calculating Net Working Capital at Closing and the Final Closing Cash Purchase Price.  Following the Closing, Buyer will cause the Company to use commercially reasonable efforts to collect the BCBSNC AR (which will in no event include the commencement of any litigation).  If any BCBSNC AR remains uncollected 180 days following the Closing, Buyer will notify the Sellers’ Representative in writing of such uncollected amount (specifying in reasonable detail the invoices and amounts that remain uncollected) (the “ BCBSNC Uncollected AR ”).  Within five (5) Business Days of receipt of such notice, the Stockholders will pay the Buyer an amount equal to the BCBSNC Uncollected AR, and upon payment of such amount, Buyer shall cause the Company to assign to the Stockholders in writing all of the Company’s right, title and interest in and to the BCBSNC Uncollected AR.

 

(g)                                   The deposit previously paid by the Company to AmerisourceBergen in the amount of $100,000 (the “ AmerisourceBergen Deposit ”) will not be included in current assets for purposes of calculating Net Working Capital at Closing and the Final Closing Cash Purchase Price.  If AmerisourceBergen remits the AmerisourceBergen Deposit to the Company following the Closing, then Buyer will cause the Company to pay to the Sellers’ Representative (which Sellers’ Representative shall deliver to the Stockholders in accordance with their Pro Rata Share) an amount equal to the AmerisourceBergen Deposit within five (5) Business Days of receipt thereof.  If, at any time following the Closing, Buyer proposes the consolidation of the purchasing relationship of the Buyer and Company with AmerisourceBergen, then Buyer shall cause the Company to make reasonable inquiry of AmerisourceBergen in respect of the remittance of the AmerisourceBergen Deposit as part of any such discussions with AmerisourceBergen.

 

(h)                                  Any payments made pursuant to Section 1.04 shall be treated as an adjustment to the Closing Cash Purchase Price by the parties for Tax purposes, unless otherwise required by Law.

 

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1.05                         Contingent Payments.

 

As additional consideration for the Shares (and subject to satisfaction of the conditions set forth below), the Buyer shall deliver to the Sellers’ Representative the following amounts (which, in each case, the Sellers’ Representative shall deliver to the Stockholders in accordance with their Pro Rata Share), if any, as determined and at such times as set forth below (each such payment a “ Contingent Payment ”):

 

(a)                                  Payments for the First Calculation Period .

 

(i)                                      Revenue Payment .

 

(1)                                  If the quotient of (A) the Actual Revenue for the First Calculation Period divided by (B) the LTM Revenue Target is equal to or less than 0.900, then no payment is due; or

 

(2)                                  If the quotient of (A) the Actual Revenue for the First Calculation Period divided by (B) the LTM Revenue Target is greater than 0.900, but not greater than 1.000, then the payment will be calculated as follows: (x) (i) the Actual Revenue for the First Calculation Period divided by the LTM Revenue Target, minus (ii) 0.900, multiplied by (y) 10, multiplied by (z) $562,500; or

 

(3)                                  If the quotient of (A) the Actual Revenue for the First Calculation Period divided by (B) the LTM Revenue Target is greater than 1.000, then the payment will be calculated as follows: (x) $562,500 plus (y) $2,312,500 multiplied by a fraction, (i) the numerator of which is the Actual Revenue for the First Calculation Period minus the LTM Revenue Target and (ii) the denominator of which is the 2014 Projected Revenue Target minus the LTM Revenue Target; provided , that the foregoing payment shall be capped at $2,875,000 (i.e. if the Actual Revenue for the First Calculation Period is equal to or greater than the 2014 Projected Revenue Target, the payment amount shall be $2,875,000).

 

(ii)                                   Gross Profit Payment .

 

(1)                                  If the quotient of (A) the Actual Gross Profit for the First Calculation Period divided by (B) the LTM Gross Profit Target is equal to or less than 0.900, then no payment is due; or

 

(2)                                  If the quotient of (A) the Actual Gross Profit for the First Calculation Period divided by (B) the LTM Gross Profit Target is greater than 0.900, but not greater than 1.000,

 

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then the payment will be calculated as follows: (x) (i) the Actual Gross Profit for the First Calculation Period divided by the LTM Gross Profit Target, minus (ii) 0.900, multiplied by (y) 10, multiplied by (z) $562,500; or

 

(3)                                  If the quotient of (A) the Actual Gross Profit for the First Calculation Period divided by (B) the LTM Gross Profit Target is greater than 1.000, then the payment will be calculated as follows: (x) $562,500 plus (y) $2,312,500 multiplied by a fraction, (i) the numerator of which is the Actual Gross Profit for the First Calculation Period minus the LTM Gross Profit Target and (ii) the denominator of which is the 2014 Projected Gross Profit Target minus the LTM Gross Profit Target; provided , that the foregoing payment shall be capped at $2,875,000 (i.e. if the Actual Gross Profit for the First Calculation Period is equal to or greater than the 2014 Projected Gross Profit Target, the payment amount shall be $2,875,000).

 

(b)                                  Payments for the Second Calculation Period .

 

(i)                                      Revenue Payment .

 

(1)                                  If the quotient of (A) the Actual Revenue for the Second Calculation Period divided by (B) the LTM Revenue Target is equal to or less than 0.900, then no payment is due; or

 

(2)                                  If the quotient of (A) the Actual Revenue for the Second Calculation Period divided by (B) the LTM Revenue Target is greater than 0.900, but not greater than 1.000, then the payment will be calculated as follows: (x) (i) the Actual Revenue for the Second Calculation Period divided by the LTM Revenue Target, minus (ii) 0.900, multiplied by (y) 10, multiplied by (z) $562,500; or

 

(3)                                  If the quotient of (A) the Actual Revenue for the Second Calculation Period divided by (B) the LTM Revenue Target is greater than 1.000, then the payment will be calculated as follows: (x) $562,500 plus (y) $2,312,500 multiplied by a fraction, (i) the numerator of which is the Actual Revenue for the Second Calculation Period minus the LTM Revenue Target and (ii) the denominator of which is the 2015 Projected Revenue Target minus the LTM Revenue Target; provided , that the foregoing payment shall be capped at $2,875,000 (i.e. if the Actual Revenue for the Second Calculation Period is equal to or greater than the 2015

 

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Projected Revenue Target, the payment amount shall be $2,875,000).

 

(ii)                                   Gross Profit Payment .

 

(1)                                  If the quotient of (A) the Actual Gross Profit for the Second Calculation Period divided by (B) the LTM Gross Profit Target is equal to or less than 0.900, then no payment is due; or

 

(2)                                  If the quotient of (A) the Actual Gross Profit for the Second Calculation Period divided by (B) the LTM Gross Profit Target is greater than 0.900, but not greater than 1.000, then the payment will be calculated as follows: (x) (i) the Actual Gross Profit for the Second Calculation Period divided by the LTM Gross Profit Target, minus (ii) 0.900, multiplied by (y) 10, multiplied by (z) $562,500; or

 

(3)                                  If the quotient of (A) the Actual Gross Profit for the Second Calculation Period divided by (B) the LTM Gross Profit Target is greater than 1.000, then the payment will be calculated as follows: (x) $562,500 plus (y) $2,312,500 multiplied by a fraction, (i) the numerator of which is the Actual Gross Profit for the Second Calculation Period minus the LTM Gross Profit Target and (ii) the denominator of which is the 2015 Projected Gross Profit Target minus the LTM Gross Profit Target; provided , that the foregoing payment shall be capped at $2,875,000 (i.e. if the Actual Gross Profit for the Second Calculation Period is equal to or greater than the 2015 Projected Gross Profit Target, the payment amount shall be $2,875,000).

 

(c)                                   Definitions .  For the purposes of this Agreement, the following terms when capitalized in this Agreement shall have the following meanings:

 

(i)                                      2014 Projected Revenue Target ” shall mean $99,837,000.

 

(ii)                                   2014 Projected Gross Profit Target ” shall mean $22,164,000.

 

(iii)                                2015 Projected Revenue Target ” shall mean $118,763,000.

 

(iv)                               2015 Projected Gross Profit Target ” shall mean $25,772,000.

 

(v)                                  LTM Revenue Target ” shall mean $84,339,000.

 

(vi)                               LTM  Gross Profit Target ” shall mean $19,038,000.

 

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(vii)                            Actual Revenue ” is the revenue of the Company during the applicable Calculation Period, as set forth on the Company’s financial statements for such period, which shall be prepared in accordance with GAAP.

 

(viii)                         Actual Gross Profit ” is the gross profit of the Company during the applicable Calculation Period, as set forth on the Company’s financial statements for such period, which shall be prepared in accordance with GAAP as in effect on the Closing Date consistent with the Company’s past practice and the principles of preparation and sample calculations set forth on Schedule 1.05(c)(viii) .

 

(ix)                               Calculation Period ” refers to the First Calculation Period and/or the Second Calculation Period, as applicable.

 

(x)                                  First Calculation Period ” means the period beginning on the date that is the first day of the first full calendar month following the Closing Date and ending on the day before the first anniversary of such date.

 

(xi)                               Second Calculation Period ” means the period beginning on the date that is the first day after the end of the First Calculation Period and ending on the day before the first anniversary of such date.

 

(d)                                  Determination of the Contingent Payments .

 

(i)                                      Within 90 days after each of the Calculation Periods, Buyer shall deliver to the Sellers’ Representative a written statement (in each case, a “ Contingent Payment Statement ”) setting forth its calculation of the Actual Revenue and Actual Gross Profit for such Calculation Period and its determination of whether any such Contingent Payment is due and payable.

 

(ii)                                   The Sellers’ Representative shall have 30 days after receipt of any applicable Contingent Payment Statement (in each case, the “ CPS Review Period ”) to review the financial results set forth therein.  Prior to the expiration of any applicable CPS Review Period, the Sellers’ Representative may object to the financial results set forth in the Contingent Payment Statement by delivering a written notice of objection (in each case, an “ Objection Notice ”) to Buyer.  Any Objection Notice shall specify the items disputed by the Sellers’ Representative and shall describe in reasonable detail the basis for such objection, as well as the amount in dispute.  If the Sellers’ Representative fails to deliver an Objection Notice to Buyer prior to the expiration of any applicable CPS Review Period, then the determination of the Buyer set forth in the Contingent Payment Statement for such period shall be final and binding on the parties hereto.  If the Sellers’ Representative timely delivers an Objection Notice, Buyer and the Sellers’ Representative shall negotiate in good faith to determine whether a Contingent Payment, if any, is due for such period.  If Buyer and the Sellers’ Representative are unable to reach agreement within 45 days after such an Objection Notice has been given (or such longer period as they may mutually agree), then all unresolved disputed items shall be promptly referred to the Neutral Accountant.  The Neutral Accountant shall be directed to render a written report on the unresolved disputed items as promptly as practicable, but in no event greater than 30 days after such submission to the Neutral Accountant, and determine whether any applicable Contingent

 

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Payment is due.  The Neutral Accountant shall resolve the disputed items based solely on the applicable definitions and other terms in this Agreement and the presentations by Buyer and Sellers’ Representative, and not by independent review.  The resolution of any dispute that is the subject of an Objection Notice by the Neutral Accountant shall be final and binding on the parties hereto.  The fees and expenses of the Neutral Accountant shall be borne by (i) Buyer if a Contingent Payment is determined to be due or (ii) the Stockholders, jointly and severally, if a Contingent Payment is determined to not be due.

 

(e)                                   Payment of Contingent Payments .  Subject to the other terms and conditions of this Agreement, any Contingent Payment that Buyer is required to pay pursuant to Section 1.05 hereof shall be paid in full upon five Business Days following the date upon which the determination of whether a Contingent Payment is due becomes final and binding upon the parties as provided in Section 1.05(d)  (including any final resolution of any dispute raised by Sellers’ Representative in an Objection Notice).  Buyer shall pay (or caused to be paid) to the Sellers’ Representative (which the Sellers’ Representative shall deliver to the Stockholders in accordance with their Contingent Payment Pro Rata Share) each Contingent Payment in cash by wire transfer of immediately available funds to the bank account designated in writing by the Sellers’ Representative.  Notwithstanding anything to the contrary, the total amount of each Contingent Payment, if any, due to the Stockholders hereunder shall be reduced (on a dollar for dollar basis) by the amount of any Tenure/Retention Bonuses actually paid with respect to such Contingent Payment to the Tenure/Retention Bonus Pool Members pursuant to the terms of the Tenure/Retention Bonus Award Agreements (which shall in no event exceed the amount of such Contingent Payments).  The Company shall pay such Tenure/Retention Bonuses pursuant to the terms of the Tenure/Retention Bonus Award Agreements.  If any amount of a Contingent Payment that would have been payable pursuant to the terms of any of the Tenure/Retention Bonus Award Agreements is not paid to the Tenure/Retention Bonus Pool Members due to any Tenure/Retention Bonus Pool Member’s failure to satisfy the conditions set forth in his or her Tenure/Retention Bonus Award Agreement, the Sellers’ Representative shall pay such amount to the Stockholders in accordance with their Reversion Pro Rata Share.

 

(f)                                    Change in Control of Buyer .  Notwithstanding anything to the contrary, if a Calculation Period has not ended as of the time of a Change in Control of Buyer, any potential Contingent Payments related to such Calculation Period (and any subsequent Calculation Period) shall be deemed to be fully achieved, and shall be due and payable in full, in connection with the consummation of such Change in Control of Buyer.

 

(g)                                   Post-Closing Operation of the Business .  Subject to the terms and conditions of this Agreement, subsequent to the Closing, Buyer will have the power and right to control the Business and operations of Buyer as Buyer sees fit in its sole discretion; provided , however , that Buyer shall (i) maintain the records of the Company required to calculate the Contingent Payments in a manner permitting preparation of financial statements consistent with GAAP and past Company practice and which permit determination of the Stockholders’ entitlement to the Contingent Payments as provided in this Section 1.05 , and (ii) not willfully take any action that is primarily intended to adversely affect the ability of the Stockholders to earn the Contingent Payments .  If the Buyer fails to comply with the requirement set forth in Section 1.05(g)(i) , then in addition to the Contingent Payments for the then-current Calculation Period (as finally determined),  Buyer shall pay interest at the rate of 8% on such Contingent

 

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Payments from the time that such Contingent Payments would have been paid but for the failure to comply with Section 1.05(g)(i) . If the Buyer fails to comply with the requirement set forth in Section 1.05(g)(ii) , then the Contingent Payments for the then-current Calculation Period shall be deemed earned by the Stockholders and the Buyer shall promptly pay such Contingent Payments to the Sellers’ Representative for delivery to the Stockholders in accordance with their Pro Rata Share.  In the event there is a Proceeding regarding Buyer’s compliance or non-compliance with Section 1.05(g)(ii) , the non-prevailing party shall be liable to the prevailing party for reasonable attorneys’ fees incurred by the prevailing party in connection with such Proceeding.

 

(h)                                  No Security .  The parties hereto understand and agree that (i) the contingent rights to receive the Contingent Payments shall not be represented by any form of certificate or other instrument, are not transferable, are unsecured, and do not constitute an equity or ownership interest in Buyer or the Company, (ii) no Stockholder shall have any rights as a securityholder of Buyer or the Company as a result of any Stockholder’s contingent right to receive any Contingent Payments hereunder, and (iii) no interest is payable with respect to any Contingent Payment.

 

1.06                         Tax Withholding.

 

Each of Buyer and the Escrow Agent shall be entitled to deduct and withhold from any consideration otherwise payable pursuant to this Agreement or the Escrow Agreement such amounts as may be required to be deducted and withheld under the Code or other applicable Law; provided that Buyer and Escrow Agent, as applicable, remit such amounts to the applicable Governmental Entity.  Any amounts so deducted and withheld shall be treated for all purposes as having been paid to the Person in respect of whom such deduction and withholding was made.

 

ARTICLE II.
CLOSING

 

2.01                         Closing.

 

The closing of the transactions contemplated by this Agreement (the “ Closing ”) shall take place by the exchange of appropriate documentation among the parties (including by means of facsimile, email or other electronic transmission) on the date hereof (the “ Closing Date ”) and the parties will not be required to be in attendance at the same location on the Closing Date.  The Closing will be deemed to be effective as of 12:01 a.m. on the Closing Date for Tax and accounting purposes.

 

2.02                         Closing Deliveries.

 

(a)                                  At the Closing, Buyer shall deliver (or cause to be delivered) the following:

 

(i)                                      Buyer shall deliver Three Million Five Hundred Thousand Dollars ($3,500,000) (the “ Escrow Amount ”) by wire transfer of immediately available funds to an account designated in writing by Wells Fargo Bank, National Association (the “ Escrow Agent ”) pursuant to the terms of that certain Escrow Agreement in the form of Exhibit B attached hereto (the “ Escrow Agreement ”);

 

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(ii)                                   Buyer shall deliver to Sellers’ Representative an amount equal to (A) the Estimated Closing Cash Purchase Price, minus (B) the Escrow Amount, by wire transfer of immediately available funds to an account designated in writing by Sellers’ Representative (which Sellers’ Representative shall deliver to the Stockholders in accordance with their Pro Rata Share);

 

(iii)                                Buyer shall deliver: (w) to the Optionholders the Option Cancellation Amounts, as applicable; (x) to the lenders’ thereof, the Closing Indebtedness, as applicable; and (y) to the Persons identified by the Company, the Sellers’ Expenses, as applicable, in each case of (w), (x), and (y), as set forth on the flow of funds memorandum executed by Buyer (“ Flow of Funds ”);

 

(iv)                               Buyer shall deliver executed subscription agreements (the “ Buyer Exchange Documents ”) in the form of Exhibit C attached hereto, issuing the Exchanged Equity to the Stockholders;

 

(v)                                  An executed certificate of the Secretary (or other executive officer) of the Buyer certifying: (w) that the charter and organizational documents of the Buyer (which are to be attached to the certificate) are true and correct as of the Closing Date; (x) the names and signatures of the officers authorized to sign this Agreement and the other documents to be delivered in connection therewith on behalf of the Buyer, and (y) the resolutions of the board of directors of the Buyer authorizing the transactions contemplated under this Agreement (the “ Buyer’s Secretary Certificate ”);

 

(vi)                               Fully executed employment agreements with each of Ronald McFarlane, Mark Poteet and Andrew Clark, in the form of Exhibit D attached hereto (the “ Employment Agreements ”);

 

(vii)                            An amended and restated lease agreement for the property located at 140 Northway Court, Raleigh, North Carolina 27615 (the “ Headquarters Property ”) in the form of Exhibit E attached hereto (the “ Headquarters Property Lease ”); and

 

(viii)                         The Escrow Agreement duly executed by the Buyer.

 

(b)                                  Prior to or at the Closing, the Stockholders shall deliver (or cause to be delivered) to Buyer the following items:

 

(i)                                      Stock certificates representing the Shares, accompanied with assignments separate from certificate (or other instruments of transfer), duly endorsed in blank and otherwise in the proper form for transfer;

 

(ii)                                   Payoff letters and releases of all Liens (other than Permitted Liens) on all of the assets and properties of the Company, including all required UCC-3 termination statements or other evidences of discharge reasonably satisfactory to Buyer;

 

(iii)                                Evidence reasonably acceptable to Buyer (including invoices and estimates, as applicable) of the balances for all items composing Sellers’ Expenses and Closing Indebtedness;

 

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(iv)                               Evidence reasonably acceptable to Buyer of the termination of all Contracts between the Company and any (A) Affiliate of the Company or any Selling Party (except as set forth on Schedule 2.02(b)(iv) ), and (B) broker, finder or agent related to, or entered into in connection with, the transactions contemplated hereunder;

 

(v)                                  The Employment Agreements executed by the Persons identified in Section 2.02(a)(viii)  above;

 

(vi)                               Option Cancellation Agreements duly executed by the Optionholders and the Company;

 

(vii)                            Executed resignations for such officers and directors of the Company for which Buyer has requested, in each case, effective as of the Closing Date;

 

(viii)                         The Escrow Agreement duly executed by the Sellers’ Representative;

 

(ix)                               The Buyer Exchange Documents executed by the Stockholders;

 

(x)                                  Certificates from each of the Stockholders, stating that such Stockholder is not a “foreign person” as defined in Section 1445 of the Code, and otherwise meeting the requirements of Section 1.445-2(b) of the Treasury Regulations;

 

(xi)                               The Flow of Funds duly executed by the Sellers’ Representative;

 

(xii)                            A fully executed Headquarters Property Lease;

 

(xiii)                         Certificates of standing showing that the Company is duly incorporated, validly existing and in good standing in the state of its incorporation and that the Company is duly qualified to do business in each state in which the nature of its business or the ownership of its property requires it to be qualified as of the Closing Date;

 

(xiv)                        An executed certificate of the trustee for the Trust Stockholder, certifying: (w) that the charter and organizational or trust documents, as the case may be, of the Trust Stockholder (which are to be attached to the certificate) are true and correct as of the Closing Date, (x) the names and signatures of the trustee or other individuals authorized to sign this Agreement and the other documents to be delivered in connection therewith on behalf of the Trust Stockholder, and (y) if applicable, the resolutions of the trustee of the Trust Stockholder authorizing the transactions contemplated under this Agreement;

 

(xv)                           An executed certificate of the Secretary (or other executive officer) of the Company certifying: (w) that the charter and organizational documents of the Company (which are to be attached to the certificate) are true and correct as of the Closing Date, (x) the names and signatures of the officers authorized to sign this Agreement and the other documents to be delivered in connection therewith on behalf of the Company, and (y) the resolutions of the board of directors and stockholders of the Company authorizing the transactions contemplated under this Agreement (the “ Company’s Secretary Certificate ”);

 

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(xvi)                        All third-party consents and approvals that are required in order to prevent a breach of or default under, a termination or modification of, or acceleration of the terms of, any Contract of the Company as a result of the consummation of the transactions contemplated herein and all governmental and regulatory consents and approvals that are necessary for the consummation of the transactions contemplated hereby and the operation of the Business following the Closing in substantially the same manner as it was operated before the Closing, in each case, on terms reasonably satisfactory to Buyer and without conditions or modifications adverse to Buyer;

 

(xvii)                     All original minute books, records, equity interest ledgers, corporate seals and other materials of the Company;

 

(xviii)                  Executed landlord estoppels, landlord waivers, and landlord consents (to the extent such waivers and consents are required pursuant to the terms of the applicable Leases) with respect to each property comprising the Leased Real Property, in each case in such form and substance as reasonably acceptable to Buyer;

 

(xix)                        All documents, certificates, filings, and other information required by Buyer’s lenders; and

 

(xx)                           Such other documents as Buyer may reasonably request, in form and substance satisfactory to Buyer, and if necessary, executed by the Stockholders and the Company for the purpose of evidencing the accuracy of the representations and warranties contained in this Agreement or the satisfaction of the conditions and covenants set forth herein.

 

ARTICLE III.
REPRESENTATIONS AND WARRANTIES REGARDING THE STOCKHOLDERS

 

As a material inducement to Buyer to enter into this Agreement and to consummate the transactions contemplated hereunder, each Stockholder, severally and not jointly, hereby makes the representations and warranties set forth in this ARTICLE III as of the Closing Date.

 

3.01                         Organization and Authority.

 

Each such Stockholder that is not an individual is duly organized, validly existing and in good standing under the laws of the state of its organization.  Such Stockholder has full power and authority to enter into this Agreement and the other documents contemplated hereunder, to carry out its obligations hereunder and thereunder, and to consummate the transactions contemplated hereby and thereby.  The execution and delivery by such Stockholder of this Agreement and the other documents contemplated hereunder, the performance by such Stockholder of its obligations hereunder and thereunder, and the consummation by such Stockholder of the transactions contemplated hereby and thereby has been duly authorized by all requisite action on the part of such Stockholder.  This Agreement and the other documents contemplated hereunder have been duly executed and delivered by such Stockholder and constitute legal, valid and binding obligations of such Stockholder enforceable against such Stockholder in accordance with its terms, except as enforceability hereof may be limited by bankruptcy, insolvency or other laws affecting creditor’s rights generally and limitations on the availability of equitable remedies.

 

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3.02                         Absence of Conflicts.

 

Except as set forth on Schedule 3.02 , neither the execution, delivery or performance of this Agreement or any other document contemplated hereunder by such Stockholder, nor the consummation by such Stockholder of the transactions contemplated hereby or thereby:

 

(a)                                  does or will (i) conflict with or result in any breach of any of the provisions of, (ii) constitute a default under, (iii) result in a violation of, (iv) give any third party the right to terminate or to accelerate any obligation under, or (v) result in the creation of any Lien upon any assets of such Stockholder (including, without limitation, upon or with respect to the Shares), in each case under the provisions of any Contract or any Law by which such Stockholder or any of such Stockholder’s assets are affected, or

 

(b)                                  without limiting clause (a) above, require any consent, approval, or authorization of any Governmental Entity or any other Person, except to the extent set forth in Schedule 4.04 .

 

3.03                         Ownership of the Shares.

 

Except as set forth on Schedule 3.03 , as of the Closing Date, such Stockholder owns beneficially all of the Shares set forth opposite its name in Schedule 4.03(a) , free and clear of all Liens.  Except as set forth on Schedule 3.03 , such Stockholder is not a party to any option, warrant, purchase right, or other Contract or commitment that could require such Stockholder to sell, transfer, or otherwise dispose of any equity interests of the Company (other than this Agreement).  At the Closing, such Stockholder shall transfer to Buyer good title to all of the equity interests of the Company owned by such Stockholder, free and clear of any Liens or other restrictions on transfer or options, rights of first refusal or similar rights granted in favor of any third party.

 

3.04                         Stockholders’ Broker.

 

Except as set forth on Schedule 4.34 , neither such Stockholder nor any representatives or Affiliates of such Stockholder, has incurred any obligation or Liability, contingent or otherwise, for any brokerage or finder’s fee or agent’s commission or other similar payment in connection with this Agreement or the transactions contemplated hereunder.

 

3.05                         Litigation.

 

There are no Proceedings pending or, to such Stockholder’s Knowledge, threatened against such Stockholder, at law or in equity, or before or by any Governmental Entity, which if determined adversely to such Stockholder would adversely affect such Stockholder’s performance under this Agreement or the consummation by such Stockholder of the transactions contemplated hereby.

 

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ARTICLE IV.
REPRESENTATIONS AND WARRANTIES REGARDING COMPANY

 

As a material inducement to Buyer to enter into this Agreement and to consummate the transactions contemplated under this Agreement, each Stockholder and the Company, jointly and severally, hereby makes the representations and warranties set forth in this ARTICLE IV as of the Closing Date.

 

4.01                         Organization and Power.

 

The Company is a corporation duly incorporated, validly existing and in good standing (or having comparable active status) under the Laws of the State of North Carolina and is qualified to do business in every jurisdiction in which the nature of its business or the ownership of its property requires it to be qualified (which are set forth on Schedule 4.01 ).  The Company has the full corporate power necessary to own and operate its properties and carry on the Business as now conducted and as proposed to be conducted prior to Closing.

 

4.02                         Authorization.

 

The Company has full corporate power and authority to execute and deliver this Agreement and all other documents contemplated hereunder to which it is a party and to perform its obligations hereunder and thereunder.  The Company has duly approved this Agreement and all other documents contemplated hereunder to which it is a party and has duly authorized its execution, delivery and performance of this Agreement and such other documents contemplated hereunder and the performance of its obligations hereunder and thereunder.  No other proceeding or action on the part of the Company is necessary to approve and authorize the Company’s execution and delivery of this Agreement or any other documents contemplated hereunder to which the Company is a party or the performance of its obligations hereunder or thereunder.  This Agreement constitutes, and each of the other documents contemplated hereunder to which the Company is a party will, when executed, constitute, a valid and binding obligation of the Company, enforceable in accordance with their respective terms and conditions, except as enforceability hereof or thereof may be limited by bankruptcy, insolvency or other laws affecting creditor’s rights generally and limitations on the availability of equitable remedies.

 

4.03                         Capitalization; Subsidiaries.

 

(a)                                  As of the date hereof, and immediately prior to the consummation of the Closing, all of the authorized, issued and outstanding shares of capital stock of the Company are held of record by the Stockholders as indicated on Schedule 4.03(a) .  All of such outstanding shares have been validly issued and are fully paid and nonassessable.  Other than the Shares and except as set forth on Schedule 4.03(a) , there are no (i) outstanding equity interests of the Company, or (ii) Contracts, commitments, understandings or arrangements, including options, warrants or scripts by which the Company is or may become bound to issue any equity interests of the Company.  Except as set forth on Schedule 4.03(a) , the Company is not a party to any option, warrant, purchase right, or other Contract or commitment that could require the Company or any Stockholder to sell, transfer, or otherwise dispose of any equity interests of the Company (other than this Agreement).  Except as set forth on Schedule 4.03(a) , there are no voting trusts, proxies, or other agreements or understandings with respect to the voting of any equity interests of the Company.  The Company does not control, directly or indirectly, or have any direct or indirect equity participation in any Person.  As of the Closing Date, all equity interests of the

 

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Company are owned beneficially by the Stockholders, free and clear of all restrictions on transfer, Taxes, Liens, options, warrants, purchase rights, Contracts, equities, claims, and demands.  Immediately following the Closing Date, Buyer shall own, free and clear of any Liens, all of the outstanding equity interests of the Company.

 

(b)                                  There are no Subsidiaries of the Company and the Company does not own or have any right to acquire, directly or indirectly, any outstanding capital stock of, or other equity interests in, any Person.

 

4.04                         Absence of Conflicts.

 

Except as set forth on Schedule 4.04 , neither the execution, delivery or performance of this Agreement or any other document contemplated hereunder by the Company, nor the consummation by the Company of the transactions contemplated hereby or thereby does or will (i) conflict with or result in any breach of any of the provisions of, (ii) constitute a default under, (iii) result in a violation of, (iv) give any third party the right to terminate or to accelerate any obligation under, (v) result in the creation of any Lien upon any assets of the Company, or (vi) require any authorization, consent, approval, exemption or other action by or notice to or filing with any Governmental Entity or any other Person, in each case under the provisions of the articles of incorporation or bylaws or resolutions of the Company or any indenture, license, mortgage, loan agreement or other agreement, instrument, Contract or any Law by which the Company or any of its respective assets is affected, or to which the Company or any of its respective assets is subject.

 

4.05                         Financial Statements.

 

Attached as Schedule 4.05 are true and complete copies of the following (collectively, the “ Financial Statements ”): (i) the audited balance sheet of the Company for the last day of, and the related statements of operations, income, cash flows and statements of shareholders’ equity for, its respective fiscal years ending on each of December 31, 2013, 2012 and 2011 (the “ Audited Financial Statements ”), and (ii) the unaudited balance sheets of the Company and the related combined statement of income for the four (4)-month period ending on April 30, 2014 (the “ Interim Financial Statements ”).  The Financial Statements (in each case, including the notes and auditors’ reports thereto, if any) are accurate and complete in all material respects, were derived from the books and records of the Company (which, in turn, are accurate and complete in all material respects), and present fairly, in all material respects the financial condition, operating results, and cash flows of the Company as of such dates and for the periods indicated.  Except as set forth on Schedule 4.05 , each such Financial Statement has been prepared in accordance with GAAP consistently applied throughout the period covered thereby; provided that the Interim Financial Statements do not reflect depreciation or equity compensation expenses).  There has been no material change in the accounting methods or practices of the Company since the earliest date covered by the Financial Statements.  No financial statements of any Person (other than the Company) are required by GAAP to be included or reflected in the Financial Statements.  The Stockholders have also delivered to Buyer copies of all letters from the Company’s auditors to any member of the Company’s board of directors or audit committee thereof (or any other Persons containing similar powers) during the 48 months prior to the date of this Agreement, together with copies of all responses thereto.

 

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4.06                         Certain Developments.

 

Except as set forth on Schedule 4.06 or as otherwise contemplated by this Agreement, during the period beginning on December 31, 2013, and ending on the Closing Date, the Company has not:

 

(a)                                  sold, leased, transferred, or assigned any of its material assets, tangible or intangible (including Proprietary Rights) other than inventory sold for a fair consideration in the ordinary course of business;

 

(b)                                  entered into any Contract or Permit (or series of related Contracts and Permits), either (i) involving more than $50,000 (individually or in the aggregate), or (ii) outside the ordinary course of business;

 

(c)                                   entered into any Contract with any Governmental Entity or accelerated, terminated, modified, or cancelled any Contract with any Governmental Entity to which the Company is a party or by which it is bound;

 

(d)                                  entered into any Contract (or series of related Contracts) with any Related Person or Affiliate of the Company or any Selling Party;

 

(e)                                   waived any right of material value;

 

(f)                                    accelerated, terminated, modified, or cancelled any Contract (or series of related Contracts) involving more than $50,000 (individually or in the aggregate) to which the Company is a party or by which it is bound;

 

(g)                                   imposed (or allowed to be imposed) any Lien (other than Permitted Liens) upon any of its assets, tangible or intangible (including any Proprietary Rights);

 

(h)                                  made any capital expenditure (or series of related capital expenditures) either involving more than $50,000 or outside the ordinary course of business;

 

(i)                                      made any capital investment in, any loan to, or any acquisition of the securities or assets of, any other Person (or series of related capital investments, loans, and acquisitions);

 

(j)                                     issued any note, bond, or other debt security or created, incurred, assumed, or guaranteed any Indebtedness;

 

(k)                                  delayed or postponed the payment of accounts payable and other Liabilities outside the ordinary course of business;

 

(l)                                      declared, set aside, or paid any dividend or made any distribution with respect to its equity interests (whether in cash or in kind) or redeemed, purchased, or otherwise acquired any of its equity interests (other than pursuant to the Option Cancellation Agreements);

 

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(m)                              entered into any employment Contract or collective bargaining agreement, written or oral, or modified the terms of any such existing Contract or agreement;

 

(n)                                  adopted, amended, modified or terminated any Benefit Plan, any profit sharing, incentive, severance or other plan; or any other Contract or commitment for the benefit of any of its current or former directors, officers and employees;

 

(o)                                  paid, or committed to pay (whether or not in writing), any severance, termination or similar payment to any current or former employee (regardless of whether such severance, termination or similar payment has been paid pursuant to any Benefit Plan);

 

(p)                                  made any Tax election, adopted or changed any accounting method or policy (whether or not for Tax purposes), filed any amended Tax Return, consented to or entered into any closing agreement or similar agreement with any Taxing Authority, consented to or settled or compromised any Tax claim or assessment or taken any position inconsistent with any past practice on any Tax Return;

 

(q)                                  made or granted any bonus or any wage, salary or compensation increase in excess of $25,000 per year to any employee or independent contractor, except pursuant to the express terms of any Contract which is described on Schedule 4.09(a) ;

 

(r)                                     transferred, assigned or granted any license or sublicense of any rights under or with respect to any Proprietary Right;

 

(s)                                    experienced any material damage, destruction or loss (whether or not covered by insurance) to its property or suffered a Material Adverse Effect;

 

(t)                                     failed to maintain insurance policies or risk management programs, and in the event of material casualty, loss or damage, to any assets of the Company, repair or replace such assets with assets of comparable quality;

 

(u)                                  changed its accounting policies and practices as in effect on the date of the latest Audited Financial Statements or changed its fiscal year;

 

(v)                                  amended its articles of incorporation or bylaws or similar governing documents;

 

(w)                                entered into any other material transaction other than in the ordinary course of business, or changed any material business practice; or

 

(x)                                  agreed or committed (whether or not in writing) to do any of the foregoing.

 

4.07                         Real Property.

 

(a)                                  Leased Properties Schedule 4.07(a)  sets forth the address of each parcel of Leased Real Property and a true and complete list of all Leases for each such Leased Real Property (including the date and name of the parties to such Lease document).  The Company

 

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has delivered to Buyer a true and complete copy of each such Lease document, and in the case of any oral Lease, a written summary of the material terms of such Lease.  Except as set forth in Schedule 4.07(a) , with respect to each of the Leases:

 

(i)                                      such Lease is legal, valid and binding upon the parties thereto, enforceable and in full force and effect, and there are no untrue or conflicting statements in any of the landlord estoppels delivered to Buyer in connection with the transactions completed hereunder;

 

(ii)                                   the transactions contemplated by this Agreement, the other documents contemplated hereunder, and the consummation of the transactions contemplated hereunder and thereunder do not require the consent of any other party to such Lease, will not result in a breach of or default under such Lease, and will not otherwise cause such Lease to cease to be legal, valid, binding, enforceable and in full force and effect on identical terms following the Closing;

 

(iii)                                the Company’s possession and quiet enjoyment of the Leased Real Property under such Lease has not been disturbed and there are no disputes with respect to such Lease;

 

(iv)                               neither the Company nor to the Company’s or Stockholders’ Knowledge any other party to any Lease is in breach or default under such Lease, and no event has occurred or circumstance exists which, with the delivery of notice, the passage of time or both, would constitute such a breach or default, or permit the termination, modification or acceleration of rent under such Lease;

 

(v)                                  no security deposit or portion thereof deposited with respect to such Lease has been applied in respect of a breach or default under such Lease which has not been redeposited in full;

 

(vi)                               except as otherwise specifically noted on Schedule 4.07(a) , the other party to such Lease is not an Affiliate of, and otherwise does not have any economic interest in, the Company or any Selling Party;

 

(vii)                            the Company has not subleased, licensed or otherwise granted any Person the right to use or occupy such Leased Real Property or any portion thereof;

 

(viii)                         with respect to the operation of the Business at the Leased Real Property, the Company has received all Permits which are required to operate the Business at the Leased Real Property and has obtained and maintained the same in compliance with all Laws;

 

(ix)                               the Company has not collaterally assigned or granted any other security in such Lease or any interest therein;

 

(x)                                  there are no Liens on the Company’s estate or interest created by such Lease (other than Permitted Liens); and

 

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(xi)                               the Company has not agreed or committed to do any of the foregoing.

 

(b)                                  Owned Real Property .  The Company does not own any real property.

 

(c)                                   Other Real Property .  Other than the Leased Real Property, the Company does not own, use or occupy or have any obligation or Liability with respect to any land, building, structures, improvements, fixtures or other interest in real property.  Except as set forth on Schedule 4.07(c)  and except for the Leased Real Property, the Company has not owned, leased or occupied any real property.  There are no existing conditions or circumstances on, under or in connection with any Leased Real Property which could impair or preclude the use of such Leased Real Property for operation of the Business in any respect and no Leased Real Property is operated pursuant to a “grandfathered use” or other non-conforming use under applicable zoning laws.  With respect to the operation of the Business at the Leased Real Property, there is no pending Proceeding, Law, restriction or moratorium imposed, enacted or threatened, the effect of which would impair the Company’s ability to maintain, after the Closing, any approvals necessary for the operation of the Business at such Leased Real Property.

 

4.08                         Tax Matters.

 

Except as set forth on Schedule 4.08 :

 

(a)                                  The Company has duly and timely filed all material Tax Returns that it was required to file.  All such Tax Returns are true, complete and correct in all material respects.  All Taxes owed by the Company (whether or not shown on any Tax Return) have been paid.  All material Taxes owed by any Stockholder in respect of any and all income of the Company have been paid.  The Company is not the beneficiary of any extension of time within which to file any Tax Return.  No written claim has been made in the past six (6) years and, to the Company’s Knowledge, no other claim has been made, by a Taxing Authority in a jurisdiction where the Company does not file Tax Returns that the Company is or may be subject to taxation by that jurisdiction.  There are no Liens (other than Taxes not yet due and payable) on any of the assets of the Company that arose in connection with any failure (or alleged failure) to pay any Tax.

 

(b)                                  The Company has timely withheld and paid to the appropriate Taxing Authority all material Taxes required by any Law to have been withheld and paid to such Taxing Authority in connection with amounts paid or owing to any Person, including all material Taxes required to have been withheld and paid in connection with amounts paid or owing to any employee, former employee, partner, independent contractor, creditor, stockholder, Affiliate, customer, supplier or other Person, and all Forms W-2 and 1099 required with respect thereto have been properly completed in all material respects and timely filed.

 

(c)                                   There is no material dispute or claim concerning any Tax Liability of the Company claimed or raised by any Taxing Authority in writing, and, to the Company’s Knowledge (including, for this purpose, to the Knowledge of any employee responsible for Tax matters) and to the Knowledge of the Stockholders, none is threatened.  Schedule 4.08 lists all United States federal, state, local and non-United States income Tax Returns filed by or with respect to the Company for any taxable periods ended on or after December 31, 2007, indicates

 

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those Tax Returns that have been audited and indicates those Tax Returns that currently are the subject of an audit.  The Company has delivered or made available (in its electronic data room) to Buyer correct and complete copies of all material Tax Returns filed by, and all examination reports and statements of deficiencies assessed against or agreed to by, the Company since December 31, 2007.  There are no outstanding requests, agreements, consents or waivers to extend the statutory period of limitation applicable to the assessment of any Taxes against the Company.  There are no pending or, to the Company’s or Stockholder’s Knowledge, threatened audits or Proceedings for or relating to any Liability in respect of Taxes of the Company.  No notice or inquiry has been received from any jurisdiction in which Tax Returns have not been filed by any Stockholder or the Company to the effect that the filing of Tax Returns may be required (or that the Company may otherwise be subject to Tax) in that jurisdiction.

 

(d)                                  The Company is not a party to any Tax allocation, Tax sharing, Tax indemnity or other similar agreement, or other agreement or arrangement with respect to Taxes (including any closing agreement, gain recognition agreement or other material agreement relating to Taxes with any Taxing Authority).

 

(e)                                   The Company has disclosed on its federal income Tax Returns all positions taken therein that could give rise to a substantial understatement of federal income tax within the meaning of Section 6662 of the Code.  The Company has never been a member of a Relevant Group, and the Company does not have any Liability for the Taxes of any Person under Section 1.1502-6 of the Treasury Regulations (or any similar provision of Law), as a transferee or successor, by Contract or otherwise.  The Company does not own, and has never owned, an interest in any other corporation, partnership or other entity, including an entity the separate existence of which is disregarded for United States federal income tax purposes.

 

(f)                                    None of the assets of the Company constitutes tax-exempt bond financed property or tax-exempt use property, within the meaning of Section 168 of the Code.  The Company is not a party to any “safe harbor lease” that is subject to the provisions of Section 168(f)(8) of the Internal Revenue Code as in effect prior to the Tax Reform Act of 1986.

 

(g)                                   The Company has not agreed, and the Company is not required, to make any adjustment under Section 481(a) of the Code by reason of a change in accounting method or otherwise, and the Company has not made any similar election, and the Company is not required to apply any similar rules, under any comparable state, local or foreign Tax provision.  The Company will not be required to include any item of income in, or exclude any item of deduction from, taxable income for any Taxable period (or portion thereof) ending after the Closing Date as a result of any (i) change in method of accounting for a Taxable period ending on or prior to the Closing Date, (ii) installment sale or open transaction disposition made on or prior to the Closing Date, (iii) use of the completed contract or percentage of completion method of accounting, (iv) prepaid amount received on or prior to the Closing Date or (v) closing agreement under Section 7121 of the Code (or other comparable agreement) entered into on or prior to the Closing Date.

 

(h)                                  The Company is not a party to any understanding or arrangement described in Section 6662(d)(2)(C)(iii) of the Code, and the Company has not “participated” in a “reportable transaction” within the meaning of Section 1.6011-4 of the Treasury Regulations.

 

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(i)                                      No Stockholder will cause, and no Stockholder will allow, the Company to take any action on the Closing Date (other than the transactions contemplated in this Agreement) outside the ordinary course of business which would result in a Tax Liability to the Company.

 

(j)                                     The amount of the Company’s Liability for unpaid Taxes for all periods ending on or before the date of the Interim Financial Statements does not, in the aggregate, exceed the amount of accruals for Taxes (excluding reserves for deferred Taxes) reflected on the Interim Financial Statements.  The amount of the Company’s Liability for unpaid Taxes for all periods following the end of the period covered by the Interim Financial Statements shall not, in the aggregate, exceed the amount of accruals for Taxes (excluding reserves for deferred Taxes) as adjusted for the passage of time in accordance with the past custom and practice of the Company (and which accruals shall not exceed comparable amounts incurred in similar periods in prior years).

 

(k)                                  The Company (and any predecessor of the Company) has been an S Corporation at all times since November 15, 2002.  Neither Buyer nor the Company will be liable for any Tax under Section 1374 of the Code, or any comparable provision of state or local Law, in connection with the deemed sale of assets of the Company resulting from the Section 338(h)(10) Election.  The Company has not, in the past ten (10) years, (i) acquired assets from another corporation in a transaction in which the transferee’s Tax basis for the acquired assets was determined, in whole or in part, by reference to the Tax basis of the acquired assets (or any other property) in the hands of the transferor or (ii) acquired the stock of any corporation that qualified as a subchapter S subsidiary within the meaning of Section 1361(b) of the Code.

 

(l)                                      The Company has correctly classified those individuals performing services as common law employees, leased employees, independent contractors or agents of the Company.  Each agreement, contract, plan, or other arrangement that is a “nonqualified deferred compensation plan” subject to Section 409A of the Code to which the Company is a party (each, a “ Plan ”) complies with and has been maintained in accordance with the requirements of Section 409A(a)(2), (3), and (4) of the Code and any U.S. Department of Treasury or Internal Revenue Service guidance issued thereunder and no amounts under any such Plan is or has been subject to the interest and additional Tax set forth under Section 409A(a)(1)(B) of the Code.  The Company does not have any actual or potential obligation to reimburse or otherwise ‘‘gross-up’’ any Person for the interest or additional Tax set forth under Section 409A(a)(1)(B) of the Code.

 

4.09                         Contracts and Commitments.

 

(a)                                  Generally Schedule 4.09(a)  lists the following Contracts to which the Company is a party:

 

(i)                                      any Contract (or group of related Contracts) for the lease of personal property to or from any Person providing for lease payments in excess of $50,000 per annum;

 

(ii)                                   any Contract (or group of related Contracts) for the purchase or sale of raw materials, commodities, supplies, products, or other personal property, or for the

 

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furnishing or receipt of goods or services, the performance of which may extend over a period of more than one year, result in a material loss to the Company, or involve consideration in excess of $50,000;

 

(iii)                                any Contract concerning a partnership or joint venture;

 

(iv)                               any Contract (or group of related Contracts) under which it has created, incurred, assumed, or guaranteed any Indebtedness in excess of $50,000, under which it has imposed a Lien on any of its assets, tangible or intangible (or any related Proprietary Rights) (other than Permitted Liens) or under which it has agreed to indemnify any other Person (including, without limitation, indemnification for unreimbursed Medicare or Medicaid payments);

 

(v)                                  any Contract with any employee, independent contractor or agent of the Company concerning exclusivity, confidentiality, non-solicitation or non-competition and any agreement restricting the Company from conducting any type of business in any location;

 

(vi)                               any Contract that restricts either the Company’s ability to solicit employees of another Person or another Person’s ability to solicit any employee of the Company;

 

(vii)                            any Contract with any Selling Party or any Related Person or Affiliate of the Company or any Selling Party;

 

(viii)                         any Benefit Plan, including, but not limited to, any bonus, profit sharing, incentive, stock option, equity purchase, equity appreciation, deferred compensation, severance, or other plan, Contract or commitment or arrangement for the benefit of its current or former directors, officers and employees;

 

(ix)                               any labor or collective bargaining agreement;

 

(x)                                  any Contract for the employment of any individual on a full-time, part-time, consulting, or other basis or providing severance benefits;

 

(xi)                               any Contract concerning or relating to Proprietary Rights (other than COTS Licenses);

 

(xii)                            any Contract under which it has advanced or loaned any amount to any of its directors, officers and employees outside the ordinary course;

 

(xiii)                         any Contract under which the consequences of a default or termination would reasonably be expected to have a Material Adverse Effect;

 

(xiv)                        any Contract under which it has granted any Person any registration rights (including, without limitation, demand and piggyback registration rights);

 

(xv)                           any “take or pay” Contracts with the Company’s sales representatives and distributors;

 

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(xvi)                        any Contract under which the Company has advanced or loaned any other Person amounts in the aggregate exceeding $50,000;

 

(xvii)                     any other Contract (or group of related Contracts) the performance of which involves consideration in excess of $50,000;

 

(xviii)                  any Contract with any customer listed on Schedule 4.28(a) ;

 

(xix)                        any Contract with a sales representative, manufacturer’s representative, distributor, dealer, broker, sales agency or advertising agency or other Person engaged in sales, distribution or promotional activities of the Business Products, or any Contract to act as one of the foregoing, and in each case involving, or anticipated to involve, revenues or expenses of more than $50,000 in any twelve month period;

 

(xx)                           any Contract providing for indemnification of any Person with respect to Liabilities relating to any current or former business of the Company or any predecessor Person, other than (A) the organizational documents of the Company, or (B) marketing agreements, property leases and other commercial agreements entered into in the ordinary course;

 

(xxi)                        any Contract containing any warranty by the Company to any other Person with respect to any Business Products, where such warranty deviates in any material respect from the Company’s standard warranty terms offered for its customers;

 

(xxii)                     any Contract with a Governmental Entity;

 

(xxiii)                  any Contract that is a power of attorney executed on behalf of the Company;

 

(xxiv)                 any Contract that requires the Company to use any supplier or third party for all or substantially all of the Company’s requirements or needs or requires the Company to provide to other parties “most favored nation” pricing;

 

(xxv)                    any Contract with any customer or supplier providing for the payment or receipt by the Company of any rebate, discount, allowance or the like;

 

(xxvi)                 any Contract with any third-party payors, including the Government Programs; and

 

(xxvii)              any other Contract requiring payments by or to the Company of an amount or value in excess of $50,000 (other than those described in subsections (i) through (xxvi) of this Section 4.09(a) ) .

 

(b)                                  Absence of Breach .  Each of the Contracts that is described or required to be described on Schedule 4.09(a)  is in full force and effect and will be in full force and effect immediately following the Closing Date, subject to the third-party consents and waivers described on Schedules 4.04 , 4.07(a) , and 4.12 .  Except as set forth on Schedule 4.09(b) , no Contract which is described or required to be described on Schedule 4.09(a) : (i) has been

 

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materially breached, canceled or repudiated by the Company, and (ii) no such other party has indicated in writing to the Company or orally to the members of the Company Knowledge Group that it will stop or decrease the rate of business done with the Company, or that it desires to renegotiate its Contracts with the Company.  To the Company’s or Stockholders’ Knowledge, no Contract which is described or required to be described on Schedule 4.09(a)  has been materially breached, canceled or repudiated by any other party thereto.  The Company has performed in all material respects all obligations required to be performed by it in connection with the Contracts that are described or required to be described on Schedule 4.09(a)  and is not in receipt of any written claim of default under any such Contract.  The Company does not have any present expectation or intention of not fully performing in any material respect any obligation pursuant to any Contract which is described or required to be described on Schedule 4.09(a) .

 

(c)                                   Copies .  The Company has furnished to Buyer a true and correct copy or representative form of all written Contracts that are described or required to be described on Schedule 4.09(a) , in each case together with all amendments, waivers or other changes thereto.  Schedule 4.09(a)  contains an accurate and complete description of all material terms of all oral Contracts that are described or required to be described thereon.

 

4.10                         Proprietary Rights.

 

(a)                                  Generally Schedule 4.10(a)  sets forth a complete and correct list of:  (i) all registered Proprietary Rights owned by the Company, including all pending applications for registration of Proprietary Rights owned or filed by the Company or in connection with the Business, identifying the Proprietary Rights and whether such Proprietary Right is an owned Proprietary Right or a licensed Proprietary Right, (ii) all unregistered trademarks, service marks, trade names and logos used by the Company in connection with the Business, (iii) computer software programs owned by the Company, (iv) all Contracts pursuant to which the Company licenses or uses the Proprietary Rights of any third party (other than COTS Licenses) or pursuant to which a third party licenses or uses the Proprietary Rights owned by the Company, identifying for each: (v) the parties thereunder, (w) the date thereof, (x) the type of license (including the term thereof), (y) the Proprietary Rights licensed thereunder, and (z) whether the Company is granting or receiving Proprietary Rights thereunder, and (v) all web sites, domain names and telephone numbers owned by, allocated or issued to the Company or used in connection with the Business.  Other than the Company’s Confidential Information and unregistered copyrights, the Proprietary Rights identified on Schedule 4.10(a)  constitute all of the Proprietary Rights owned, licensed by or used in or necessary for the Business as currently conducted or proposed to be conducted throughout the world prior to Closing, and no Selling Party nor any third party owns or has any rights with respect to such Proprietary Rights.  Except pursuant to the COTS Licenses, neither any Stockholder nor the Company has agreed to indemnify any Person with respect to any Proprietary Rights owned or licensed by the Company.

 

(b)                                  Ownership; Infringement .  Except as set forth on Schedule 4.10(b) , (i) the Company, solely and exclusively, owns and possesses all right, title and interest in and to, or in the alternative which will be identified as such on Schedule 4.10(b) , has a valid and enforceable right to use the Proprietary Rights described or required to be described on Schedule 4.10(a) , free and clear of all Liens (other than Permitted Liens), and no claim by any third party contesting the validity, enforceability, use or ownership of any of the foregoing has been made, is currently

 

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outstanding or, to the Company’s or any Stockholder’s Knowledge, is threatened, (ii) no loss, expiration or claim challenging the validity or enforceability of any Proprietary Right owned by the Company is pending, reasonably foreseeable or, to the Company’s or any Stockholder’s Knowledge, threatened, (iii) the Company has not received any written notice of (and no member of the Company Knowledge Group has received any verbal notice of), and neither the Company nor any Stockholder is aware of any fact which indicates a likelihood of any infringement, violation, dilution or misappropriation by, or any conflict with, any third Person with respect to any Proprietary Right owned or licensed by the Company, including any demand or request that the Company license rights from a third Person, (iv) to the Company’s and Stockholders’ Knowledge, the practice of any patents or methods comprising the Proprietary Rights owned by the Company do not infringe, dilute, violate or misappropriate the Proprietary Rights of any third person in the jurisdiction where the Business is presently conducted or any jurisdiction where the Business is anticipated prior to Closing to be conducted, (v) the Company has not infringed, violated, diluted, misappropriated or otherwise violated any Proprietary Rights of any third Person and no Stockholder nor the Company has Knowledge of any infringement, misappropriation, violation or dilution of any Proprietary Rights of any third Person which will occur as a result of the continued operation of the Business, operation of the Business anticipated prior to Closing or the consummation of the transactions contemplated by this Agreement and the other documents contemplated hereunder, and (vi) all of the Company’s rights in and to such Proprietary Rights that are owned by the Company are freely assignable by the Company, including the right to create derivative works.

 

(c)                                   Restrictions .  There are no settlements, injunctions, forbearances to sue, consents, coexistence agreements, judgments, or orders or similar obligations to which the Company is a party or is otherwise bound, which (i) restrict the rights of the Company to use any Proprietary Rights owned by the Company, or (ii) permit third parties to use any Proprietary Rights owned by the Company, which would otherwise infringe any Proprietary Rights owned by the Company.  The Company has not licensed or sublicensed its rights in any Proprietary Rights to others and no royalties, honoraria or other fees are payable by the Company for the use of, or right to use, any Proprietary Rights, except pursuant to one or more of the Contracts disclosed on Schedule 4.09(a)  and as specifically identified therein.

 

(d)                                  Registrations .  All registrations for Proprietary Rights identified on Schedule 4.10(a)  are valid and in force, and any applications to register any unregistered Proprietary Rights so identified are pending and in good standing, all without challenge of any kind and the Company has the right to bring Actions for infringement or unauthorized use of the Proprietary Rights owned by the Company.

 

(e)                                   Patents and Trademarks .  The Company owns no patents.  All registered trademarks included in the Proprietary Rights have been filed in, issued by or registered with the United States Patent and Trademark Office, have been so filed, registered or issued, as the case may be as shown on Schedule 4.10(a) , and have been maintained and renewed in accordance with all applicable provisions of Law in the United States.  All trademarks are in use in the form appearing in, and in connection with the goods and services listed in, their respective registration certificates (with respect to registered trademarks) or applications (with respect to unregistered trademarks for which an application has been filed.)  Complete and accurate copies of all trademark filings, including all correspondence to and from the United States Patent and

 

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Trademark Office, have been provided to Buyer.  The Company has used commercially reasonable efforts to protect its rights in such registered and material unregistered trademarks, and there have been no acts or omissions by the Company, the result of which would reasonably be expected to compromise the rights of the Company to apply for or enforce appropriate legal protection of such registered and material unregistered trademarks .

 

(f)                                    Protective Measures .  The Company has taken reasonable measures to protect the confidentiality of all Confidential Information of the Company, including the trade secrets included in the Company’s Proprietary Rights, including requiring all employees, contractors and third persons having access thereto to execute written non-disclosure agreements.  No Confidential Information or trade secrets have been disclosed by the Company or authorized to be disclosed by the Company to any third person other than pursuant to a written non-disclosure agreement; and, to the Company’s and Stockholders’ Knowledge, no third person that is a party to any non-disclosure agreement with the Company is in breach or default thereof.  To the Company’s and Stockholders’ Knowledge, no Confidential Information or trade secrets of the Company have been improperly disclosed or misappropriated by another Person.  To the Company’s and Stockholders’ Knowledge, no third party is misappropriating, infringing or otherwise violating any Proprietary Rights of the Company, and no such claims are pending against any third party.

 

(g)                                   Affiliates .  No current or former director, stockholder, officer, employee or contractor of the Company has or will have, after giving effect to the transactions contemplated by this Agreement, any legal or equitable right, title or interest in or to, or any right to use, directly or indirectly, in whole or in part, any of the Proprietary Rights owned by the Company.

 

(h)                                  Personal Information .  To the Company’s and Stockholders’ Knowledge, the Company is in compliance with all applicable Laws relating to the privacy of personal information.  The Company uses commercially reasonable efforts to protect the privacy and security of all personal information in the possession of the Business, whether in written or electronic form.

 

4.11                         Systems.

 

(a)                                  Schedule 4.11(a)  lists all of the computer and telephone systems, including the software, hardware, networks and interfaces (collectively, “ Systems ”) used or currently planned to be used in the conduct of the Business.  All such Systems are sufficient for the current needs of the Company, including, without limitation, as to capacity and ability to process current and anticipated peak product volumes in a timely manner, subject to expenditures contemplated by the Company’s current budget and to continued investment in Systems in the ordinary course.

 

(b)                                  Except as set forth on the attached Schedule 4.11(b) , all Systems, other than the Internet, third-party networks and telecommunications systems and the third-party hardware used in connection therewith, and software, used in the Business are owned and operated by and are under the control of the Company and are not wholly or partly dependent on any facilities that are not under the ownership, operation or control of the Company.

 

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4.12                         Governmental Licenses and Permits.

 

Schedule 4.12 sets forth a complete listing and summary description of all Permits issued to or held by (or, if noted, required to be issued to or held by) the Company, (including all applications therefor and all renewals, extensions, or modifications thereof and additions thereto) that are necessary or material to conduct the Business as currently conducted or currently proposed to be conducted by the Company.  All fees and charges with respect to such Permits have been paid in full and each such Permit is current and unencumbered with no history of any form of material disciplinary action taken against it by any Governmental Entity.  Except as set forth in Schedule 4.12 , no loss or expiration of any such Permit is pending, reasonably foreseeable or, to any Stockholder’s or the Company’s Knowledge, threatened (including as a result of the transactions contemplated by this Agreement and the other documents contemplated hereunder) other than by reason of expiration in accordance with the terms thereof.

 

4.13                         Employees.

 

(a)                                  No employee or independent contractors of the Company and no group of employees or independent contractors of the Company has notified the Company in writing or any member of the Company Knowledge Group orally of any plans to terminate his or its employment or relationship with the Company.  Schedule 4.13(a)  lists any executive, key employee or key independent contractor whose employment or relationship with the Company terminated since December 31, 2013.

 

(b)                                  To the Company’s and Stockholders’ Knowledge, the Company has complied with all applicable Laws relating to the employment of personnel and labor, including, but not limited to, ERISA, the Fair Labor Standards Act, the Age Discrimination in Employment Act, the Americans with Disabilities Act, provisions thereof relating to wages, hours, equal opportunity, collective bargaining and the payment of social security, Medicare, and other Taxes, including withholding requirements, the Worker Adjustment Retraining and Notification Act of 1988, as amended, or any similar state or local plant closing or mass layoff statute, rule or regulation, the Immigration Reform and Control Act of 1986, as amended, and characterizing individuals as independent contractors.  Except as disclosed in Schedule 4.13(b) , no employee of the Company has any agreement regarding his or her employment, other than an agreement for at-will employment.

 

(c)                                   Except as disclosed in Schedule 4.13(c) , for the last three (3) years through the Closing Date, the Company has not: (i) been bound by or entered into any Contract or collective bargaining agreement with any labor organization or other representative of any employees of the Company, except as disclosed on Schedule 4.09(a) , (ii) experienced any strike, work stoppage, or lockout, and none has been threatened in writing, (iii) been the subject of any grievance, unfair labor practice claim, charge of discrimination, or other material employee or labor dispute, (iv) engaged in any unfair labor practice, (v) been the subject of any organizational effort made or threatened by or on behalf of any labor union with respect to employees of the Company, except as related to the collective bargaining agreements, if any, disclosed on Schedule 4.09(a) , or (vi) leased any employees.  The Company has satisfied any notice or bargaining obligation it may have under any Law or collective bargaining agreement to any employee representative.

 

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(d)                                  Except as disclosed in Schedule 4.13(d) , there are no outstanding rights or obligations relating to pensions, Benefit Plans, severance or termination pay, workers compensation, unemployment compensation and/or other obligation to employees or independent contractors of the Company.

 

(e)                                   Schedule 4.13(e)  sets forth the name, start date, title or position, citizenship and the annual or, as the case may be, hourly rate of compensation (including salary, bonuses and commissions), as of the date of this Agreement and at the Closing Date, for each individual engaged by the Company as an employee or independent contractor whose annual income (of all types) from the Company has exceeded or is expected to exceed $25,000.

 

4.14                         Immigration Matters.

 

Except as set forth on Schedule 4.14 :

 

(a)                                  To the Company’s and Stockholders’ Knowledge, the Company has properly utilized Form I-9 to verify the identity and work authorization status of each of its employees in compliance with the Immigration and Nationality Act, as amended, the Immigration Reform and Control Act of 1986, as amended, and related promulgating regulations.  No employee of the Company presented any temporary work authorization document at the time of hire that is presently or at any future date will be subject to I-9 re-verification.

 

(b)                                  No employee of the Company is employed under an H-1B, L-1A or L-1B visa, or any other employer-petitioned non-immigrant U.S. work authorization.

 

(c)                                   The Company is not petitioning for employment-based lawful permanent residence status on behalf of any employee of the Company and the Company has not filed any Application for Alien Employment Certification (ETA Form 750), Application for Permanent Employment Certification (ETA Form 9089), or any Form I-140 (Immigrant Petition for Alien Workers) that remains pending.

 

(d)                                  Schedule 4.14 contains a list and description of any correspondence received by the Company from any Person or Governmental Entity in the last three (3) years questioning the validity of the social security number of any employee of the Company.

 

4.15                         Employee Benefit Plans.

 

(a)                                  Schedule 4.15(a)  contains a complete and correct list of each Benefit Plan.

 

(b)                                  Each Benefit Plan (and each related trust, insurance contract, or fund) has been maintained, funded and administered in all material respects in accordance with the terms of such Benefit Plan and the terms of any applicable collective bargaining agreement and, to the Company’s and Stockholders’ Knowledge, complies in all material respects in form and in operation with the applicable requirements of ERISA, the Code and other applicable Laws.

 

(c)                                   Neither the Company nor any ERISA Affiliate maintains, sponsors, contributes to, has any obligation to contribute to, or has any Liability or potential Liability

 

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under or with respect to, any Multiemployer Plan or any Employee Pension Benefit Plan subject to Code Sections 412 or 4971, ERISA Section 302 or Title IV of ERISA, or otherwise has any Liability or potential Liability under Title IV of ERISA.  There is no Lien pursuant to ERISA Sections 303(k) or 4068 or Code Sections 412(n) (as in effect prior to its repeal) or 430(k) in favor of, or enforceable by the Pension Benefit Guaranty Corporation or any other entity with respect to any of the assets of the Company.  No cash or bond or other amount is payable by the Company or any ERISA Affiliate to the Pension Benefit Guaranty Corporation pursuant to Section 4062(e) of ERISA.

 

(d)                                  All required reports and descriptions (including Form 5500 annual reports, summary annual reports, and summary plan descriptions) with respect to each Benefit Plan have been properly and timely filed and/or distributed to participants and other applicable individuals in accordance with the applicable requirements of ERISA and the Code.

 

(e)                                   Neither the Company nor any ERISA Affiliate maintains, sponsors, contributes to or has any obligation to contribute to, or has any Liability or potential Liability with respect to, any Employee Welfare Benefit Plan providing health or life insurance or other welfare-type benefits for current or future retired or terminated employees (or any spouse or other dependent thereof) other than in accordance with COBRA.  The requirements of COBRA have been met with respect to each Benefit Plan and to each Employee Welfare Benefit Plan maintained by an ERISA Affiliate that is subject to COBRA.

 

(f)                                    The Company has complied in all material respects with the applicable requirements of HIPAA and HITECH that apply to each Benefit Plan that is an Employee Welfare Benefit Plan.

 

(g)                                   All contributions (including all employer contributions and employee salary reduction contributions) that are due have been made within the time periods prescribed by ERISA and the Code to each Benefit Plan that is an Employee Pension Benefit Plan and all contributions for any period ending on or before the Closing Date that are not yet due have been made to each such Employee Pension Benefit Plan or properly accrued.  All premiums or other payments for all periods ending on or before the Closing Date have been paid with respect to each Benefit Plan that is an Employee Welfare Benefit Plan.

 

(h)                                  Each Benefit Plan that is an Employee Pension Benefit Plan and that is intended to meet the requirements of a “qualified plan” under Code Section 401(a) has been determined by the Internal Revenue Service to be so qualified, either through receipt of a current favorable determination letter or through proper reliance on an opinion or advisory letter issued by the Internal Revenue Service with respect to such Employee Pension Benefit Plan, and to the Company’s and Stockholders’ Knowledge nothing has occurred since the date of such determination, opinion or advisory letter that could adversely affect the qualified status of any such Employee Pension Benefit Plan.  All such Employee Pension Benefit Plans have been timely amended for the requirements of the Tax legislation commonly known as “EGTRRA” and other interim Tax legislation.

 

(i)                                      There have been no Prohibited Transactions with respect to any Benefit Plan and no fiduciary as defined in ERISA Section 3(21) has any Liability for breach of fiduciary

 

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duty or any other failure to act or comply in connection with the administration or investment of the assets of any Benefit Plan, in each case to the Company’s and Stockholders’ Knowledge.  No Proceeding with respect to the administration or the investment of the assets of any Benefit Plan (other than routine claims for benefits) is pending or threatened and there is no basis for any such Proceeding.

 

(j)            The Company is not obligated under the Benefit Plans (including, but not limited to, any nonqualified deferred compensation plan or arrangement) or otherwise to pay any separation, severance, termination or similar benefit as a result of any transactions contemplated by this Agreement or solely as a result of a change in control or ownership with the meaning of Section 280G of the Code.  Neither the execution of this Agreement, nor the consummation of the transactions contemplated by this Agreement, will increase the amount of benefits otherwise payable under any Benefit Plan or result in the acceleration of the time of payment, funding or vesting of any such benefits.

 

(k)           With respect to each Benefit Plan, the Company has delivered to Buyer correct and complete copies of the material plan documents (including amendments and individual agreements relating thereto), and the most recent summary plan descriptions and summaries of material modifications, the most recent favorable determination letter, or opinion letter or advisory letter received from the Internal Revenue Service, the Form 5500 Annual Reports (including all schedules thereto) with all applicable attachments for the last three plan years, and all related trust agreements, insurance contracts, and other funding arrangements, including any collective bargaining agreements, that implement each such Benefit Plan, the most recent financial statements and valuation statements for each such Benefit Plan, and, for each such Benefit Plan that is intended to meet the requirements of a “qualified plan” under Code Section 401(a), the coverage and nondiscrimination testing results for the last three Benefit Plan years.  The Company is not obligated to establish a new Benefit Plan, or to amend a Benefit Plan to increase the amount of benefits provided under such Benefit Plan, or to amend a Benefit Plan to change the eligibility rules for such Benefit Plan.

 

(l)            Except as required by any Law, no provision or condition exists that would prevent the Company or Buyer from terminating or amending any Benefit Plan at any time for any reason.

 

(m)          The terms of each Benefit Plan that is a “nonqualified deferred compensation plan” (as defined in Section 409A of the Code and the regulations thereunder) meet, and each such Benefit Plan has been operated in good faith in accordance with, the requirements of Sections 409A(a)(2), (a)(3), and (a)(4) of the Code, and no assets of the Company have been directly or indirectly set aside in a trust or other arrangement described in Section 409A(b)(1) of the Code or are, or have been, subject to a “financial health” trigger described in Section 409A(b)(2) of the Code.

 

(n)           To the Company’s and Stockholders’ Knowledge, the Company and each ERISA Affiliate have, for purposes of each Benefit Plan, correctly classified those individuals performing services for the Company or the respective ERISA Affiliate as common law employees, leased employees, independent contractors or agents.

 

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4.16                         Medicare and Medicaid Participation .

 

This Section 4.16 sets forth all representations and warranties of the Company concerning Medicare, Medicaid and other Government Program participation matters and the other healthcare regulatory matters addressed in this Section.  No other representations or warranties made by the Company in this Agreement shall be construed to concern Medicare, Medicaid or other Government Program participation matters or the other healthcare regulatory matters addressed in this Section.

 

(a)           Except as set forth in Schedule 4.16 , the Company is eligible for participation in the Medicare, Medicaid and CHAMPUS/TRICARE programs (collectively, the “ Government Programs ”) and has current and valid provider contracts with such Government Programs.  The Company is in compliance with the conditions of participation for the Government Programs in all material respects.  There is neither pending, nor, to the Company’s or a Stockholder’s Knowledge, threatened, any Action under the Government Programs involving the Company.  The Stockholders have made available to Buyer true and complete copies of the most recent Government Program survey reports and all plans of correction, if any, which Company was required to submit in response to such surveys, and all such plans of correction have been accepted by the applicable Government Program and all have been or are in the process of being implemented.  Company’s billing practices for all third-party payors, including the Government Programs and private insurance companies, are in compliance in all material respects with applicable Law and billing requirements of such third party payors and Government Programs and the Company has not knowingly billed or received any material payment or reimbursement in excess of amounts allowed by Law.  Schedule 4.16 contains a list of all of the Company’s Government Program provider numbers and other third-party payor provider numbers.

 

(b)           Company has: (i) timely filed all reports and billings required to be filed with respect to any Government Program or any third-party payor (all of which are complete and accurate in all material respects and prepared and filed in compliance with applicable Law), and (ii) paid or caused to be paid any undisputed refunds, overpayments, discounts, or adjustments that have become due pursuant to such reports and billings.

 

4.17        Compliance Program.

 

This Section 4.17 sets forth all representations and warranties of the Company concerning its Compliance Program and the other healthcare regulatory matters addressed in this Section.  No other representations or warranties made by the Company in this Agreement shall be construed to concern its Compliance Program or the other healthcare regulatory matters addressed in this Section.

 

(a)           The Company has continuously maintained a compliance program designed to promote compliance with applicable Laws and ethical standards, to improve the quality and performance of operations, and to detect, prevent, and address violations of legal or ethical standards applicable to its operations (the “ Compliance Program ”).  The Company is in material compliance with the terms of the Compliance Program and Buyer has been given access to all records and logs maintained by the Company in connection with the Compliance Program.

 

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(b)           The Company periodically searches the Office of Inspector General’s List of Excluded Individuals/Entities and other websites or databases of Governmental Entities to confirm that its employees, independent contractors, consultants and other Persons providing any services under any Contracts are not currently excluded, debarred or otherwise ineligible to participate in the Government Programs.  Except as set forth on Schedule 4.17(b) , to the Company’s or a Stockholder’s Knowledge, the Company has not employed or contracted with any Person that is excluded, debarred or otherwise ineligible to participate in the Government Programs.  Additionally, the Company has not received notice that (i) any Person providing services to the Company, or (ii) any employee or contractor in either case of (i) or (ii), is charged with or has been convicted of a criminal offense related to the Government Programs, or the provision of health care items or services, but has not yet been excluded, debarred or otherwise declared ineligible to participate in such programs or is proposed for exclusion therefrom.

 

(c)           The Company (i) is not a party to a corporate integrity agreement with the Office of the Inspector General of the Department of Health and Human Services, (ii) has not been subject to reporting obligations pursuant to any settlement agreement entered into with any Governmental Entity, (iii) to the Company’s and Stockholders’ Knowledge, has not been the subject of any government payor program investigation conducted by any Governmental Entity, (iv) has not been a defendant in any qui tam/False Claims Act litigation, and (v) has not been served with or received any search warrant, subpoena, civil investigation demand, contact letter, or, to the Company’s or any Stockholder’s Knowledge, has received telephone or personal contact by or from any Governmental Entity.

 

(d)           All employees and independent contractors of the Company that provide the type of service under any Contract or in the operation of the Business as currently conducted or as proposed to be conducted that requires, as a condition precedent to the rendering of the service, the obtaining of a license or other legal authorization issued by a Governmental Entity are properly licensed or otherwise legally authorized by a Governmental Entity to perform the service in the state or jurisdiction in which the service is being performed.

 

4.18        HIPAA Compliance .

 

Company is a “Covered Entity” (as defined in HIPAA) and is in material compliance with HIPAA and HITECH.

 

4.19        Compliance with Laws.

 

(a)           Except as set forth on Schedule 4.19 , the Company and, to the Company’s and Stockholders’ Knowledge, each of its independent contractors, agents and employees has complied in all material respects with and is in compliance in all material respects with all applicable Laws which affect the Business or to which the Company is subject, and no claim has been filed against the Company alleging a violation of any such Law and the Company has not received written notice of any violation or alleged violation of, or any obligation to take remedial action under, any applicable Law or Permit.  Except as set forth on Schedule 4.19 , the Company is not now, directly or indirectly, subject (nor has the Company ever been subject) to any Proceeding by any Governmental Entity or to any other allegation that the Company has violated

 

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the regulations of any such Governmental Entity or made a material false statement or omission to any Governmental Entity, including those related to government procurement.

 

(b)           Company has filed all regulatory reports, schedules, statements, documents, filings, submissions, forms, registrations, and other documents, together with any amendments required to be made thereto, required to be filed with any Governmental Entity, and have paid all material fees, assessments due and payable in connection therewith.

 

4.20        Affiliate Transactions.

 

Other than as described on Schedule 4.20 , no Selling Party and no Related Person or Affiliate of any Selling Party or of the Company (a) is or was a party to any Contract or transaction with the Company (other than in such Person’s capacity as an employee of the Company, the compensation for which is reflected on Schedule 4.13(e) ), or (b) has any interest in or owns any asset, tangible or intangible, which is used in the Business of the Company.

 

4.21                         Environmental Matters.

 

This Section 4.21 sets forth all representations and warranties of the Company concerning environmental matters.  No other representations or warranties made by the Company in this Agreement shall be construed to concern environmental matters.  Except as set forth on Schedule 4.21 :

 

(a)           Regulatory Compliance .  The Company has complied with and is in compliance with all Environmental Requirements.

 

(b)           Permits .  The Company has complied with and is in compliance with all permits, licenses and other authorizations that are required pursuant to Environmental Requirements for the occupation of its facilities and the operation of the Business (“ Environmental Permits ”) and, to the extent required prior to the Closing Date, timely and complete applications have been or will be made for renewal, extension, or reissuance to the Company of all such Environmental Permits, and the Company has not received information which would lead it to believe that any Environmental Permit may not be renewed, extended or reissued to the Company in due course and as requested without the imposition of cost or penalty.  Schedule 4.21 contains a list of all such Environmental Permits.

 

(c)           Notices .  The Company has not received any notice, claim, complaint, citation, report or other information regarding any actual or alleged violation of Environmental Requirements or any Liabilities or potential Liabilities (whether accrued, absolute, contingent, unliquidated or otherwise), including any investigatory, remedial or corrective obligations and any request for information with respect to any investigation or clean-up of Hazardous Substances, arising under Environmental Requirements relating to the Company or the Business, nor is there any Proceeding pending or, to the Company’s and Stockholders’ Knowledge, threatened against or affecting the Company or the Business at law or in equity before a court or administrative agency relating to a violation of any Environmental Requirement.

 

(d)           Real Property .  None of the following exists or has existed at the Headquarters Property and to the Company’s Knowledge, any other Leased Real Property or any

 

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other real property that the Company has owned or leased: (i) underground storage tanks, (ii) asbestos or asbestos-containing materials, (iii) materials or equipment containing polychlorinated biphenyls, (iv) landfills, surface impoundments, or disposal areas, or (v) subject to the exceptions in the following two sentences, Hazardous Substances.  Hazardous Substances may exist in cleaning solutions and agents used or previously used for janitorial services at the Leased Real Property and in pesticides, herbicides or fertilizers used for routine pest control and lawn maintenance at the Leased Real Property.  In addition, vehicles at the Leased Real Property and lawn equipment used or previously used at the Leased Real Property contain petroleum products.

 

(e)           Release of Substances .  The Company has not treated, stored, disposed of, arranged for or permitted the disposal of, transported, handled, or released any Hazardous Substance at the Leased Real Property in a manner that has given rise to or is likely to give rise to Liabilities, including any Liability for response costs, corrective action costs, personal injury, property damage, natural resource damages or attorney fees, pursuant to the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended, the Solid Waste Disposal Act, as amended, or any other Environmental Requirement.  Neither the Headquarters Property nor, to the Company’s and Stockholders’ Knowledge, any of the other Leased Real Property is contaminated by any Hazardous Substance.

 

(f)            Operations .  To the Company’s and Stockholders’ Knowledge, no facts, events or conditions relating to the assets of the Company or the Business or the past or present facilities, properties or operations of the Company will prevent, hinder or limit continued compliance with Environmental Requirements, give rise to any investigatory, remedial or corrective obligations pursuant to Environmental Requirements, or give rise to any other Liabilities (whether accrued, absolute, contingent, unliquidated or otherwise) pursuant to Environmental Requirements, including any Environmental Requirement relating to onsite or offsite release or threatened release of Hazardous Substances, personal injury, property damage or natural resources damage.

 

(g)           Transaction-Triggered Requirements .  Neither the execution and delivery of this Agreement nor the consummation of the transaction contemplated by this Agreement will impose any obligations for site investigation or cleanup, or notification to or consent of Governmental Entity or any other Person, pursuant to any so-called “transaction-triggered” or “responsible property transfer” Environmental Requirement.

 

(h)           Liability for Others .  The Company has not, either expressly or by operation of Law, assumed or undertaken any Liability or corrective or remedial obligation of any other Person relating to Environmental Requirements.

 

(i)            Environmental Liens .  No Environmental Lien has attached to the Headquarters Property and, to the Company’s and Stockholders’ Knowledge, no Environmental Lien has attached to any of the other Leased Real Property.

 

(j)            Environmental Reports .  The Company has provided to Buyer true and correct copies of all environmental reports, audits, assessments, and investigations, and all other material environmental documents, relating to the Company, the Leased Real Property, any other

 

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real property owned or used by the Company, the Business or any of the Company’s predecessors.

 

4.22        Tangible Assets.

 

(a)           Except as set forth on Schedule 4.22(a) , the Company owns or leases, free and clear of Liens (other than Permitted Liens), all machinery, equipment, and other tangible assets necessary for, or used in, the conduct of the Business as presently conducted and as presently proposed to be conducted.

 

(b)           Each such tangible asset is free from material defects (patent and latent), has been maintained in all material respects in accordance with normal industry practice, is in good operating condition and repair (subject to normal wear and tear), and is suitable in all material respects for the purposes for which it presently is used and presently is proposed to be used.

 

4.23        Undisclosed Liabilities.

 

The Company does not have any material Liability, except for (i) Liabilities set forth on the face of the Interim Financial Statements (including in any notes thereto), (ii) Liabilities which have arisen after the Interim Financial Statements in the ordinary course (none of which results from, arises out of, relates to, is in the nature of, or was caused by any breach of Contract, breach of warranty, tort, environmental matter, infringement of Proprietary Rights, or violation of Law) and (iii) Liabilities set forth in the Disclosure Schedules.

 

4.24        Notes and Accounts Receivable.

 

All notes and accounts receivable of the Company are reflected properly on the books and records of the Company, the accounts receivable set forth therein are valid receivables, and to the Company’s and Stockholders’ Knowledge, such notes and accounts receivable are not subject to setoffs or counterclaims. No obligor under any note or account receivable of the Company has notified the Company in writing (or any member of the Company Knowledge Group verbally) that it does not intend to pay any such note or account receivable.  The Company has not agreed to any deduction, free goods, discount or other deferred price or quantity adjustment with respect to any of its accounts receivables.

 

4.25        Powers of Attorney.

 

Except as set forth on Schedule 4.25 , there are no outstanding powers of attorney executed on behalf of the Company.

 

4.26        Insurance.

 

Schedule 4.26 sets forth the following information with respect to each insurance policy (including policies providing property, vehicle, casualty, Liability, and workers’ compensation coverage and bond and surety arrangements and insurance certificates (including coverage for inventory purchased domestically and internationally)) to which the Company is a party, a named insured, or otherwise the beneficiary of coverage:

 

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(a)           the name, address, and telephone number of the agent;

 

(b)           the name of the insurer, the name of the policyholder, and the name of each covered insured;

 

(c)           the policy number and the period of coverage;

 

(d)           the scope (including an indication of whether the coverage was on a claims made, occurrence, or other basis) and amount (including a description of how deductibles and ceilings are calculated and operate) of coverage; and

 

(e)           a description of any retroactive premium adjustments or other loss-sharing arrangements.

 

Current certificates of insurance for each such insurance policy have been provided to Buyer.  Except as set forth on Schedule 4.26 , with respect to each such insurance policy: (A) the policy is legal, valid, binding, enforceable, and in full force and effect, (B) the policy will continue to be legal, valid, binding, enforceable, and in full force and effect following the consummation of the Closing and the transactions contemplated in connection therewith without any further action being taken by the Company, (C) neither the Company nor to the Company’s or Stockholders’ Knowledge any other party to the policy is in breach or default (including with respect to the payment of premiums or the giving of notices), and no event has occurred which, with notice or the lapse of time, would constitute such a breach or default by the Company or to the Company’s or Stockholders’ Knowledge any other party to the policy, or permit termination, modification, or acceleration, under the policy, (D) no party to the policy has repudiated any provision thereof, and (E) the Stockholders have provided to Buyer true and complete copies thereof.  The Company has been covered during the past five years by insurance in scope and amount customary and reasonable considering the size of the Company and the scope of the Business as currently conducted and currently proposed to be conducted.

 

4.27        Service Liability Claims.

 

(a)           Except as set forth on Schedule 4.27(a) , there are no Service Liability Claims.

 

(b)           Except (i) as set forth on Schedule 4.27(b) , (ii) for conditions or warranties implied or imposed by any applicable Law, or (iii) as contained in the Company’s standard terms and conditions of sale or service, the Company has not given any warranty or made any representation in respect of the Business Products.

 

(c)           Except (i) as set forth on Schedule 4.27(c) , and (ii) except as otherwise occurs in the ordinary course, each service rendered by the Company has been in material conformity with all applicable contractual commitments and all express and implied warranties.

 

(d)           Schedule 4.27(d)  includes copies of the standard terms and conditions of sale and/or service for the Company (which includes any continuing applicable guaranty, warranty and indemnity provisions).

 

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4.28        Customers.

 

(a)           Schedule 4.28(a)  lists each of the customers of the Company whose purchases of goods or services in the year ending on the last day of the period covered by the Interim Financial Statements have exceeded 5% of the total revenues of the Company for that period.

 

(b)           Except as set forth on Schedule 4.28(b) , no customer listed on Schedule 4.28(a)  (x) has stopped or materially decreased, or (y) to the Company’s or Stockholders’ Knowledge has threatened to stop, or materially decrease the rate of purchasing materials, products or services from the Company.

 

4.29                         Suppliers .

 

(a)           Schedule 4.29(a)  lists each of the suppliers of the Company whose goods or services provided to the Company in the year ending on the last day of the period covered by the Interim Financial Statements have exceeded 5% of the total cost of goods and/or services provided by such suppliers to the Company for that period.

 

(b)           Except as set forth on Schedule 4.29(b) , no supplier listed on Schedule 4.29(a)  (x) has stopped or materially decreased, or (y) to the Company’s or Stockholders’ Knowledge has threatened to stop, or materially decrease the rate of supplying materials, products or services to the Company.

 

4.30                         Officers and Directors.

 

Schedule 4.30 lists all officers and directors of the Company.

 

4.31                         Bank Accounts.

 

Schedule 4.31 lists each bank account (designating each authorized signatory and the level of each signatory’s authorization) of the Company.

 

4.32                         Litigation.

 

Schedule 4.32 lists all civil or criminal litigation, arbitration, mediation or other Proceedings to which the Company, any stockholder, or any director or officer, or employee of the Company is or was a party that currently is pending, was settled or adjudicated within the past five years, was settled and adjudicated more than five years ago, but with respect to which the Company has unsatisfied Liability, any written claim received by the Company that could reasonably be expected to result in a Proceeding, or that, to the Knowledge of the Company or the Stockholders, are threatened, in each case relating to or affecting the Company or its business, operations or assets Schedule 4.32 sets forth, with respect to each matter disclosed on such schedule, (i) the parties, (ii) the nature of dispute, (iii) the relief sought (including the approximate amount of damages or other relief sought), (iv) the status of dispute, (v) the extent to which the Company’s insurance would cover the relief, and (vi) the Company’s assessment of its likelihood of prevailing.  No matter disclosed on Schedule 4.32 , if decided or settled unfavorably to the Company, would reasonably be expected to prevent or adversely affect the

 

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consummation of the transactions contemplated under this Agreement, result in any transactions contemplated under this Agreement being declared unlawful or rescinded or have a Material Adverse Effect.

 

4.33                         Books and Records.

 

(a)           The books of account and other records of the Company, all of which have been made available to Buyer, are complete and correct in all material respects, represent actual, bona fide transactions, and have been maintained in accordance with sound business practices.

 

(b)           The minute books of the Company contain records that are complete and correct in all material respects of all meetings held of, and actions taken by written consent of, the holders of voting securities, the board of directors or Persons exercising similar authority, and committees of the board of directors or such Persons of the Company, and no meeting of any such holders, board of directors, Persons, or committee has been held, and no other material action has been taken, for which minutes or other evidence of action have not been prepared and are not contained in such minute books.  The Company has at all times maintained complete and correct records of all issuances and transfers of its equity interests.  At the Closing, all such minute books and records will be in the possession of the Company and located at the principal office of the Company.

 

4.34        Company Broker.

 

Except as set forth on Schedule 4.34 , there are no claims for brokerage commissions, finders’ fees or similar compensation in connection with the transactions contemplated by this Agreement and the other documents contemplated hereunder based on any arrangement or agreement made by or on behalf of the Company or any Stockholder.

 

4.35                         Disclosure.

 

Neither this Agreement nor any other documents contemplated hereunder to which the Company is a party, nor any of the schedules or exhibits hereto or thereto, contains any untrue statement of a material fact or, when considered as a whole, omits a material fact necessary to make the statements contained herein or therein, in light of the circumstances in which they were made, not misleading.

 

ARTICLE V.
REPRESENTATIONS AND WARRANTIES OF BUYER

 

As a material inducement to the Company and the Stockholders to enter into this Agreement and to consummate the transactions contemplated hereunder, Buyer makes the representations and warranties set forth in this ARTICLE V as of the Closing Date.

 

5.01        Organization and Power.

 

Buyer is a corporation duly incorporated, validly existing and in good standing under the laws of the State of Michigan and is qualified to do business in every jurisdiction in which the execution, delivery and performance of its obligations under this Agreement requires it to be so

 

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qualified.  Buyer has full corporate power and authority to execute, deliver and perform its obligations under this Agreement and the other documents contemplated hereunder to which Buyer is a party.

 

5.02        Authorization.

 

No other proceedings or actions on the part of Buyer are necessary to approve and authorize Buyer’s execution and delivery of this Agreement or any other document contemplated hereunder to which Buyer is a party or the performance of Buyer’s obligations hereunder or thereunder.  This Agreement constitutes, and each of the other documents contemplated hereunder to which Buyer is a party will, when executed, constitute a valid and binding obligation of Buyer, enforceable in accordance with their terms, except as enforceability hereof may be limited by bankruptcy, insolvency or other laws affecting creditor’s rights generally and limitations on the availability of equitable remedies.

 

5.03        Absence of Conflicts.

 

Neither the execution, delivery and performance of this Agreement or any other document contemplated hereunder by Buyer, nor the consummation by Buyer of the transactions contemplated hereby or thereby does or will: (i) conflict with or result in a breach of any of the provisions of, (ii) constitute a default under, (iii) result in the violation of, (iv) give any third party the right to terminate or to accelerate any obligation under, or (v) require any consent, order, approval, authorization or other action of, or any filing with or notice to, any Governmental Entity or other Person, in each case under the provisions of any Contract to which Buyer is bound or by which it or any of its assets are affected, or any Law to which Buyer is subject.

 

5.04        Buyer’s Broker.

 

There are no claims for brokerage commissions, finders’ fees or similar compensation in connection with the transactions contemplated by this Agreement and the other documents contemplated hereunder based on any arrangement or agreement made by or on behalf of Buyer, except pursuant to Buyer’s agreement with Bison Group LLC.

 

5.05        Financial Statements.

 

Attached as Schedule 5.05 are true and complete copies of the following (collectively, the “ Buyer Financial Statements ”): (i) the consolidated audited balance sheet of the Buyer and its Affiliates for the last day of, and the related statements of operations, income, cash flows and statements of shareholders’ equity for, its respective fiscal years ending on each of December 31, 2013, 2012 and 2011, and (ii) the unaudited consolidated balance sheets of the Buyer and its Affiliates and the related consolidated statements of income for the four (4)-month period ending on April 30, 2014 (the “ Buyer Interim Financial Statements ”).  The Buyer Financial Statements (in each case, including the notes and auditors’ reports thereto, if any) are accurate and complete in all material respects, were derived from the books and records of the Buyer and its Affiliates (which, in turn, are accurate and complete in all material respects), and present fairly, in all material respects, the financial condition, operating results, and cash flows of the Buyer and its Affiliates as of such dates and for the periods indicated.  Except as set forth on Schedule 5.05 ,

 

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each such Buyer Financial Statement has been prepared in accordance with GAAP consistently applied throughout the period covered thereby.  There has been no material change in the accounting methods or practices of the Buyer and its Affiliates since the earliest date covered by the Buyer Financial Statements.  No financial statements of any Person (other than the Company and its Affiliates identified in the Buyer Financial Statements) are required by GAAP to be included or reflected in the Buyer Financial Statements.

 

5.06                         Capitalization; Subsidiaries.

 

(a)                                  As of the date hereof, and immediately prior to the consummation of the Closing, all of the authorized, issued and outstanding shares of capital stock of the Buyer are held of record by the stockholders as indicated on Schedule 5.06(a) .  All of such outstanding shares have been validly issued and are fully paid and nonassessable.  Except as set forth on Schedule 5.06(a) , there are no (i) outstanding equity interests of the Buyer, or (ii) Contracts, commitments, understandings or arrangements, including options, warrants or scripts by which the Buyer is or may become bound to issue any equity interests of the Buyer.  Except as set forth on Schedule 5.06(a) , the Buyer is not a party to any option, warrant, purchase right, or other Contract or commitment that could require the Buyer to sell, transfer, or otherwise dispose of any equity interests of the Buyer.  Except as set forth on Schedule 5.06(a) , there are no voting trusts, proxies, or other agreements or understandings with respect to the voting of any equity interests of the Buyer.  Except as set forth on Schedule 5.06(a) , the Buyer does not control, directly or indirectly, or have any direct or indirect equity participation in any Person.

 

(b)                                  Except as set forth on Schedule 5.06(b) , there are no Subsidiaries of the Buyer.

 

5.07                         Litigation.

 

Schedule 5.07 lists all civil or criminal litigation, arbitration, mediation or other Proceedings to which the Buyer is a party that currently is pending or that, to the Knowledge of the Buyer, are threatened, in each case relating to or affecting the Buyer and its Affiliates or their respective businesses, operations or assets .  No obligations under any settlement agreement or other dispositive agreement or order relating to a Proceeding to which Buyer was a party within the last five years would reasonably be expected to have a Material Adverse Effect on Buyer or its Affiliates.  No matter disclosed on Schedule 5.07 , if decided or settled unfavorably to the Buyer or its Affiliates, would reasonably be expected to prevent or adversely affect the consummation of the transactions contemplated under this Agreement, result in any transactions contemplated under this Agreement being declared unlawful or rescinded or have a Material Adverse Effect.

 

5.08                         Undisclosed Liabilities.

 

Neither the Buyer nor its Affiliates have any material Liability, except for (i) Liabilities set forth on the face of the Buyer Interim Financial Statements (including in any notes thereto), (ii) Liabilities which have arisen after the Buyer Interim Financial Statements in the ordinary course (none of which results from, arises out of, relates to, is in the nature of, or was caused by

 

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any breach of Contract, breach of warranty, tort, infringement of Proprietary Rights, or violation of Law), and (iii) Liabilities set forth in the Disclosure Schedules.

 

5.09                         Compliance with Laws.

 

(a)                                  Except as set forth on Schedule 5.09 , the Buyer and its Affiliates and, to the Buyer’s Knowledge, each of their respective independent contractors, agents and employees has complied in all material respects with and is in compliance in all material respects with all applicable Laws which affect the business of the Buyer and its Affiliates or to which the Buyer and its Affiliates are subject.  Except as set forth on Schedule 5.09 , neither the Buyer nor its Affiliates are now, directly or indirectly, subject to any Proceeding by any Governmental Entity or to any other allegation that the Buyer or its Affiliates have violated the regulations of any such Governmental Entity or made a material false statement or omission to any Governmental Entity, including those related to government procurement.

 

(b)                                  The Buyer and its Affiliates have filed all regulatory reports, schedules, statements, documents, filings, submissions, forms, registrations, and other documents, together with any amendments required to be made thereto, required to be filed with any Governmental Entity, and have paid all material fees, assessments due and payable in connection therewith.

 

5.10                         Certain Developments.

 

Except as set forth on Schedule 5.10 , during the period beginning on December 31, 2013, and ending on the Closing Date, the Buyer has not experienced a Material Adverse Effect.

 

5.11                         Exchanged Equity.

 

The issuance, sale and delivery of the Exchanged Equity in accordance with this Agreement, have been, or will be on or prior to the Closing, duly authorized by all necessary corporate action on the part of Buyer.  The Exchanged Equity when so issued, sold and delivered in accordance with the provisions of this Agreement, will be duly and validly issued and non-assessable and shall not be subject to any preemptive rights, rights of first refusal, or any other restrictions on transfer other than restrictions under the Buyer Exchange Documents and under applicable Law.

 

5.12                         Disclosure.

 

Neither this Agreement nor any other documents contemplated hereunder to which the Buyer is a party, nor any of the schedules or exhibits hereto or thereto, contains any untrue statement of a material fact or, when considered as a whole, omits a material fact necessary to make the statements contained herein or therein, in light of the circumstances in which they were made, not misleading.

 

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ARTICLE VI.
COVENANTS

 

6.01                         Governmental Approvals and Consents.

 

If any consent, approval or authorization necessary to preserve any right or benefit under any Contract to which the Company is a party is not obtained prior to the Closing, Stockholders shall, subsequent to the Closing, cooperate with Buyer and the Company in attempting to obtain such consent, approval or authorization as promptly thereafter as practicable.

 

6.02                         Press Releases and Announcements.

 

Neither the Stockholders nor the Company shall make any press release or other public announcement of or with respect to this Agreement or any of the transactions contemplated hereunder without Buyer’s prior written consent.

 

6.03                         Further Transfers.

 

Each party to this Agreement will execute and deliver such further instruments of transfer and take such additional actions as any other party may reasonably request to effect, consummate, confirm or evidence the transactions contemplated hereby and by the other documents contemplated hereunder.

 

6.04                         Non-Solicitation, Non-Competition and Confidentiality.

 

(a)                                  Non-Solicitation .  In consideration of the transactions contemplated hereby and the payment of the Purchase Price, the Stockholders (each, a “ Restricted Party ”) agree that, during the period beginning on the Closing Date and ending on the fifth (5 th ) anniversary thereof or, with respect to Mark Poteet, ending on the second (2 nd ) anniversary thereof (the “ Restricted Period ”), such Restricted Party will not, and will not permit any of its Affiliates to, directly or indirectly, including causing, encouraging, directing or soliciting any other Person to, contact, approach, or solicit for the purpose of offering employment to or hiring (whether as an employee, consultant, agent, independent contractor or otherwise) or actually hire any Person who is or has been employed or retained in the operation of the Business by the Company or Buyer during the period commencing two (2) years prior to the Closing Date and ending on the date of termination of the Restricted Period, or induce, interfere with or solicit, or attempt to induce, interfere with or solicit, any Person that is a current or former customer, supplier or other business relation of the Company or any predecessor thereof into any business relationship that would reasonably be expected to harm the Business, or in any manner engage in or own, directly or indirectly, any interest in any business that provides services or products to any current or former customer of the Company that are similar to or competitive with the services or products provided by the Company to such current or former customers.

 

(b)                                  Non-Competition .  In consideration of the transactions contemplated hereby and the payment of the Purchase Price, each Restricted Party agrees that during the applicable Restricted Period, such Restricted Party will not, and will not permit any of its Affiliates to, within or with respect to the geographical area of the United States and anywhere else the Company operates or plans to operate during the Restricted Period (the “ Restricted

 

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Area ”), directly or indirectly own, operate, lease, manage, control, participate in, consult with, advise, permit such Restricted Party’s name to be used by, provide services for, or in any manner engage in (x) any business (including by any Restricted Party or in association with any Person) that creates, designs, invents, engineers, develops, sources, markets, manufactures, distributes or sells any product or provides any service in or into the Restricted Area that may be used as a substitute for or otherwise competes with any product or service of the Buyer Business, the Company or their predecessors carried out during the period commencing two years prior to the Closing Date and ending on the date of termination of the Restricted Period or contemplated during such period to be carried out by Buyer, the Company or their predecessors, or (y) any activity that is in competition with, or potential competition with, the Business or any other business of the Company.  Nothing in this Section 6.04(b)  shall prohibit any Restricted Party from being a passive owner of less than 1% of the outstanding capital stock of a corporation of any class that is publicly traded, so long as such Restricted Party has no direct or indirect participation in the business of such corporation.

 

(c)                                   Confidentiality .  Each Restricted Party will, and will cause its Affiliates to, treat and hold as confidential all Confidential Information and shall refrain from using any Confidential Information except as necessary to consummate the Closing of the transactions contemplated by this Agreement, and deliver promptly to Buyer or destroy, at the request and option of Buyer, all tangible embodiments (and all copies) of Confidential Information which are in such Restricted Party’s possession or under such Restricted Party’s control.  In the event that any Restricted Party is compelled by Law to disclose Confidential Information or the fact that Confidential Information has been made available to such Restricted Party by the Company, such Restricted Party agrees to provide the Buyer with prompt written notice of such request, to the extent such notice can be given, so that the Buyer and/or the Company may seek a protective order or other appropriate remedy and/or waive compliance with the provisions of this Agreement.  If a protective order or other remedy is not obtained, or the Company waives compliance with the provisions of this Agreement, such Restricted Party agrees to furnish only that portion of Confidential Information and other information that is legally required and that Restricted Party will use his, her, or its reasonable best efforts to obtain reliable assurance that confidential treatment will be accorded to that portion of Confidential Information and other information that is being disclosed.

 

(d)                                  Non-Disparagement by the Restricted Parties .  Each Restricted Party agrees not to disparage Buyer or the Company or their respective goods or services, or any Affiliates of such Persons.

 

(e)                                   Remedy for Restricted Party’s Breach .  Each Restricted Party acknowledges and agrees that in the event of a breach by such Restricted Party of any of the provisions of this Section 6.04 , monetary damages may be inadequate and Buyer may have no adequate remedy at law.  Accordingly, in the event of any such breach, Buyer and its successors or assigns may, in addition to any other rights and remedies existing in their favor, enforce their rights and such Restricted Party’s obligations hereunder by an Action or Actions for specific performance, injunctive and/or other relief, without any requirement of posting a bond or proving actual damages or posting any bond or other security.

 

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(f)                                    Modification; Extension of Restricted Period .  If the final judgment of a court of competent jurisdiction declares that any term or provision of this Section 6.04 is invalid or unenforceable, the parties agree that the court making the determination of invalidity or unenforceability will have the power to reduce the scope, duration, or area of the term or provision, to delete specific words or phrases, or to replace any invalid or unenforceable term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision, and this Agreement will be enforceable as so modified after the expiration of the time within which the judgment may be appealed.  In the event a court of competent jurisdiction determines that a Restricted Party breached any term or provision of this Section 6.04 , such Restricted Party hereby consents to the court extending the duration of the restrictive provisions contained in this Section 6.04 to a period of time equal to the period of time that such Restricted Party breached such provisions to compensate Buyer for the time such Restricted Party was in violation of such provisions.

 

6.05                         Customer and Other Business Relationships.

 

(a)                                  After the Closing, each Stockholder shall cooperate with Buyer and the Company in their efforts to continue and maintain for the benefit of Buyer and the Company those business relationships of the Company, including relationships with any customers, suppliers, licensors, licensees, lessors, employees, regulatory authorities and others.  Each Stockholder shall refer to Buyer and the Company all inquiries and communications received by such Stockholder relating to the Company or the Business after the Closing.

 

(b)                                  After the Closing, no Stockholder may take any action that is designed or intended to have the effect of discouraging any lessor, licensor, customer, supplier, or other business relation of the Company from maintaining the same business relationships with the Company after the Closing Date as it maintained with the Company prior to the Closing Date.

 

6.06                         Stockholders’ Release.

 

(a)                                  Except as provided in Section 6.06(c)  below, each Stockholder on behalf of itself and any Person who may be bound by it (collectively, the “ Releasing Parties ”), releases the Company, Buyer, and each of their respective officers, directors, partners, members, managers, shareholders, Affiliates, Subsidiaries, Related Persons, agents, attorneys, employees, predecessors, successors, heirs, and assigns (collectively, the “ Released Parties ”) from any and all Actions, controversies, cross-claims, counter-claims, debts, compensatory damages, liquidated damages, punitive or exemplary damages, other damages, claims for costs and attorneys’ fees, or Liabilities of any nature whatsoever in law and in equity, both past and present (from the beginning of the world through the date of this Agreement) and whether known or unknown, suspected, or claimed against any of its, his or her Released Parties which such Releasing Party, or any officer, director, manager, trustee, spouse, heir, executor, administrator, successor or assign of such Releasing Party, has or may have, which arise out of or are connected with the Company, any Affiliate of the Company, or any predecessor thereto (other than those arising out of or in connection with any other agreements entered into pursuant to this Agreement), whether arising under any federal, state or local civil or human rights law, or under any other local, state, or federal law, regulation or ordinance, or under any public policy, contract or tort, or under common law; or any claim for breach of contract, infliction of emotional

 

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distress, defamation, or any claim for costs, fees, or other expenses, including attorneys’ fees incurred in these matters (all of the foregoing collectively referred to herein as such Releasing Party’s “ Released Claims ”).

 

(b)                                  Each Releasing Party represents that he, she or it has made no assignment or transfer of any Released Claim.  Each Releasing Party acknowledges and intends that his, her or its execution and delivery of this release shall be effective as a bar to each and every one of the Released Claims, and expressly consents and agrees that this release shall be given full force and effect according to each and all of its express terms and provisions, including those relating to unknown and unsuspected Released Claims (notwithstanding any state statute that expressly limits the effectiveness of a general release of unknown, unsuspected and unanticipated Released Claims), if any, as well as those relating to any other Released Claims hereinabove mentioned or implied.

 

(c)                                   Notwithstanding the release provided in this Section, nothing herein shall operate to impair the rights and obligations under, or prevent the Releasing Party from asserting any claim against (i) any Released Party that such Releasing Party may have, if any, arising under this Agreement; (ii) the Company that such Releasing Party may have, if any, arising in connection with unpaid wages or compensation due such Releasing Party for the portion of then-current pay period immediately prior to the Closing; or (iii) the Company that such Releasing Party may have, if any, arising under the articles of incorporation or bylaws of the Company in connection with a claim brought against the Releasing Party by a third party in connection with the Releasing Party’s service as a director or officer of the Company.

 

ARTICLE VII.
TAX MATTERS

 

7.01                         Tax Matters.

 

The following provisions will govern the allocation of responsibility as between the Buyer and the Stockholders for certain Tax matters following the Closing Date:

 

(a)                                  Tax Indemnification .

 

(i)                                      The Stockholders, jointly and severally, will indemnify the Company and Buyer and hold them harmless from and against, without duplication, any loss, claim, Liability, expense, or other damage attributable to (A) all Taxes (or the non-payment thereof) of the Company for any Pre-Closing Tax Period; (B) all Taxes of any Relevant Group of which the Company (or any predecessor of the Company) is or was a member on or prior to the Closing Date, including pursuant to Section 1.1502-6 of the Treasury Regulations or any analogous or similar state, local, or non-U.S. Law or regulation; (C) any and all Taxes of any Person (other than the Company) imposed on the Company as a transferee or successor, by Contract, pursuant to any law, rule, or regulation, or otherwise; (D) any employment or other Taxes on any payment for or in respect of any Options which are cancelled pursuant to Section 1.03 ; and (E) any Tax imposed on the Company due to the Company’s not being regarded as an S

 

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corporation by the State of New Jersey for any period of time prior to the Closing including, without limitation, any Tax imposed on the Company under any provision of New Jersey law which is comparable to Section 1374 of the Code (it being acknowledged that any Tax under Section 1374 of the Code, or any comparable provision of any state or local Law, on the deemed sale of assets of the Company resulting from the Section 338(h)(10) Election shall be Sellers’ responsibility).

 

(ii)                                   The Stockholders shall not be liable for Taxes under Section 7.01(a)(i)  above to the extent that such Taxes are taken into account in Closing Indebtedness or the Net Working Capital at Closing, and, thus, are accounted for in the Purchase Price.  Furthermore, notwithstanding any provisions to the contrary in this Agreement, the Stockholders shall have no obligation to indemnify the Company or any Buyer against any Losses consisting of or relating to Taxes resulting from (A) any action outside the ordinary course of business taken by, or under the direction of, the Buyer on or after the Closing Date and (B) any Taxes or fees imposed under Section 7.01(f)  and (C) any breach by Buyer of Article VII of this Agreement.

 

(iii)                                The Stockholders will pay to Buyer the amount of any Taxes which are the responsibility of the Stockholders pursuant to this Section 7.01(a)  within ten (10) Business Days before the later of (A) the date such Taxes are payable by Buyer or the Company and (B) Buyer’s demand for such payment from the Stockholders.  The indemnification under this Section 7.01(a)  shall survive indefinitely and shall not be subject to the Basket or Cap.

 

(b)                                  Straddle Period .  For purposes of this Agreement, in the case of any Taxable period that includes (but does not end on) the Closing Date (a “ Straddle Period ”), the amount of any real property, personal property or other ad valorem Taxes for the Straddle Period which relates to the Pre-Closing Tax Period will be deemed to be the amount of such Tax for the entire Straddle Period multiplied by a fraction the numerator of which is the number of days in the Straddle Period that occur on or before the Closing Date and the denominator of which is the total number of days in such Straddle Period, and the amount of other Taxes of the Company for a Straddle Period which relate to the Pre-Closing Tax Period will be determined based on an interim closing of the books as of the close of business on the Closing Date.  Without limiting the foregoing, Tax on (i) any income or gain of the Company that relates to the closing of the transactions contemplated by this Agreement and (ii) any income or gain realized by the Company as a result of the Section 338(h)(10) Election will be allocated to the Pre-Closing Tax Period.

 

(c)                                   Responsibility for Filing Tax Returns .

 

(i)                                      Sellers’ Representative shall prepare or cause to be prepared all income Tax Returns of the Company for any Pre-Closing Tax Period (each such income Tax Return a “ Pre-Closing Income Tax Return ”) and shall pay or cause to be paid all Taxes required to be paid with respect to such Pre-Closing Income Tax Returns. The Pre-Closing Income Tax Returns shall be prepared in a manner

 

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consistent with the prior practice of the Company, subject to compliance with the other provisions of this Section 7.01 , and, in any event, with applicable Law.  The Stockholders shall report, on their respective personal income Tax Return(s), any income, gain, loss, deduction or other tax items for such periods in a manner consistent with the Schedule K-1s filed with such Pre-Closing Income Tax Returns.  Sellers’ Representative shall deliver to Buyer, for Buyer’s review and comment, each such Pre-Closing Income Tax Return at least forty-five (45) days prior to the due date of such Pre-Closing Income Tax Return.  Buyer shall provide written comments to the Sellers’ Representative within ten (10) days of receipt of such Pre-Closing Income Tax Return.  Sellers’ Representative shall take any such comments into account in good faith, but shall not be required to incorporate them into the Pre-Closing Income Tax Returns, except for any changes that Buyer may request in order to conform such Pre-Closing Income Tax Returns with applicable Law and the other provisions of this Section 7.01 .  If the Buyer requests any such changes, then Sellers’ Representative and Buyer shall attempt to resolve such dispute through good-faith negotiation. If, within five (5) days of Buyer’s request for such changes, the parties are unable to resolve their dispute, then they shall submit such dispute to the Neutral Account for resolution in accordance with the procedures of Section 1.04 .  The Pre-Closing Income Tax Returns shall be revised to take into account any such changes determined by the Neutral Accountant to be necessary to conform such Pre-Closing Income Tax Returns with applicable Law and the other provisions of this Section 7.01 , following which, Buyer shall cause the Company to provide an officer of the Company to sign, and Sellers’ Representative shall file, each such Pre-Closing Income Tax Return.

 

(ii)                                   Buyer will prepare or cause to be prepared, and timely file or cause to be timely filed, all Tax Returns for the Company (other than Pre-Closing Income Tax Returns) which are due after the Closing Date for any Tax period beginning on or before the Closing Date (each such Tax Return, a “ Pre-Closing Period Tax Return ”). Each such Pre-Closing Period Tax Return shall be prepared in a manner consistent with the prior practice of the Company to the extent such practice is consistent with the other provisions of this Section 7.01 and, in any event, with applicable Law. Buyer shall submit each Pre-Closing Period Tax Return to the Sellers’ Representative for review and comment at least twenty (20) Business Days prior to the due date thereof, except where such twenty (20)-day period is not practical, in which case as soon as practical after the preparation of such Pre-Closing Period Tax Return.  Within ten (10) days of receiving a draft of such Pre-Closing Period Tax Return (except in the case of a Pre-Closing Period Tax Return where such ten (10)-day period is not practical, in which case as soon as practical after the receipt of such Pre-Closing Period Tax Return), the Sellers’ Representative shall provide written comments to Buyer.  If Buyer disagrees with the comments of Sellers’ Representative, then the parties shall attempt to resolve any dispute through good-faith negotiation and if, within seven (7) days, the parties are unable to resolve their dispute, then they shall submit such dispute to the Neutral Account for resolution in accordance with the procedures of Section 1.04.  In no event shall the provision of comments by the Sellers’ Representative

 

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prevent Buyer from timely filing any such Pre-Closing Period Tax Return and, in the event that the Neutral Accountant has not yet resolved any such dispute prior to the deadline for filing such Pre-Closing Period Tax Return (including any extensions), Buyer shall be entitled to file such Pre-Closing Period Tax Return as prepared by Buyer subject to amendment to reflect the determination of the Neutral Accountant.

 

(iii)                                The Sellers’ Representative shall pay to the Buyer at least ten (10) Business Days prior to the due date of any amount of any Tax reportable on a Pre-Closing Tax Period Return the amount of such Tax except to the extent that the Stockholders are not responsible for such Tax under Section 7.01(a)(ii)  (i.e., to the extent such amount is taken into account in the Closing Indebtedness or in the Net Working Capital as of the Closing and, thus is accounted for in the Purchase Price).

 

(d)                                  Cooperation on Tax Matters .  Each party hereto will, and shall cause its Subsidiaries and Affiliates to, provide to each of the other parties hereto such cooperation and information as any of them reasonably may request in filing any Tax Return, determining a Liability for Taxes or in conducting any audit or other Tax Proceeding.  Such cooperation and information shall include providing copies of all relevant portions of relevant Tax Returns, together with relevant accompanying schedules and relevant work papers, relevant documents relating to rulings or other determinations by Taxing Authorities and relevant records concerning the ownership and Tax basis of property, which any such party may possess.  The Stockholders shall turn over to Buyer all Tax Returns, schedules and work papers, and all material records and other documents in their possession, relating to Taxes of the Company.  The Company agrees that, before discarding or destroying any books and records relating to Taxes of the Company for any Pre-Closing Tax Period with respect to which the statute of limitations on assessment has not expired under applicable Law (giving effect to all extensions and waivers), Buyer shall offer to give such books and records to Sellers’ Representative.

 

(e)                                   Tax Sharing Agreements .  All Tax sharing agreements or similar agreements and powers of attorney with respect to or involving the Company shall be terminated as of the Closing Date and, after the Closing Date, the Company shall not be bound thereby or have any Liability thereunder.

 

(f)                                    Certain Taxes and Fees .  All transfer, documentary, sales, use, stamp, registration and other such Taxes, and all conveyance fees, recording charges and other fees and charges (including any penalties and interest) incurred in connection with consummation of the transactions contemplated by this Agreement (excluding, for the avoidance of doubt, any Taxes on or measured by income or gain) shall be paid 50% by the Buyer and 50% by the Stockholders when due.

 

(g)                                   Preservation of S Election .  Neither the Company nor any Stockholders will revoke the Company’s election to be taxed as an S corporation within the meaning of Sections 1361 and 1362 of the Code.  Neither the Company nor any Stockholders will take or allow any action that would result in the termination of the Company’s status as a validly electing S corporation within the meaning of Sections 1361 and 1362 of the Code.

 

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(h)                                  Exchanged Equity .  Each Stockholder acknowledges and agrees that the Buyer’s purchase of the Shares is a “qualified stock purchase” within the meaning of Section 338(d)(3) of the Code, in connection with which the Stockholders will recognize the entire amount of gain or loss realized on the sale of Shares for the Purchase Price (including the Exchanged Equity).  Without limiting the foregoing, each Stockholder and Buyer acknowledges that the Buyer’s issuance of Exchanged Equity for some of the Shares will qualify neither as (i) a transaction governed by Section 351 of the Code (because the Stockholders will not “control” the Buyer as required by Section 368(c) of the Code) nor (ii) as a “reorganization” within the meaning of Section 368 of the Code.

 

(i)                                      Section 338(h)(10) Election .

 

(i)                                      The Stockholders shall join with Buyer in the making of a timely election under Section 338(h)(10) of the Code and any and all similar provisions of state Law with respect to the purchase and sale of the Shares (the “ Section 338(h)(10) Election ”).  In accordance with this Section 7.01(i) , the Stockholders shall execute and deliver to Buyer at Closing for Buyer subsequently to file such forms as are necessary to make the Section 338(h)(10) Election.

 

(ii)                                   As a condition precedent to Buyer and Stockholders making the Section 338(h)(10) Election (which Buyer shall cause to be filed after the Closing), Buyer shall pay to the Sellers’ Representative (for disbursement to the Stockholders), in cash, the amount of additional consideration necessary to cause the Stockholders’ after Tax net proceeds from the sale of the Shares with the Section 338(h)(10) Election to be equal to the after Tax proceeds that the Stockholders would have received had the Section 338(h)(10) Election not been made (the “ Tax Gross Up Amount ”), determined in accordance with the methodology used to prepare the attached Exhibit F (the “ Gross-Up Schedule ”), but based on the Purchase Price Allocation Schedule.  In computing the Tax Gross Up Amount, the Stockholders shall use the Tax rates shown on the Gross-Up Schedule, and the Stockholders’ other items of income, deduction, gain, loss or credits shall be ignored.  The amount of the initial Tax Gross Up Amount (which based on the Purchase Price Allocation Schedule is $37,512) shall be paid to the Stockholders as part of the Closing Cash Purchase Price in accordance with Section 1.02 .  Any adjusted Tax Gross-Up Amount shall be determined and paid as part of the Final Closing Cash Purchase Price in accordance with Section 1.04 Notwithstanding the foregoing, if the state of New Jersey does not affirmatively accept the status of the Company as an S-corporation under New Jersey law by December 31, 2014, then the Stockholders will reimburse the Buyer the amount of the Tax Gross Up Amount that relates to New Jersey, as reflected in the Gross-Up Schedule.  The Tax Gross Up Amount shall not exceed One Hundred Thousand Dollars ($100,000) (the “ Tax Gross Up Cap ”).

 

(iii)                                Through Sellers’ Representative, the Stockholders shall prepare, execute and deliver to Buyer, such documents and forms, and provide Buyer with such information, as Buyer may reasonably request or as may be required by applicable Law to make an effective Section 338(h)(10) Election, including

 

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without limitation, IRS Form 8023 and (together with any schedules or attachments thereto) or any successor form required pursuant to applicable Treasury Regulations and any applicable state form Without limiting the generality of the foregoing, each Stockholder will furnish to Buyer, prior to Closing or at any time thereafter as requested by the Buyer, such Stockholder’s social security or Tax identification number and any other information requested by Buyer required to prepare IRS Form 8023 (and, as applicable, analogous forms required under state or local Tax law) and will, at the Closing or at any time thereafter as requested by Buyer, execute any IRS Form 8023 (and any such analogous forms) prepared by Buyer and deliver such IRS Form 8023 (and any such analogous forms) to Buyer for filing. Following the Closing, the Stockholders will take any and all other actions, and execute and deliver to Buyer any and all forms and documents, that Buyer may reasonably determine to be necessary or appropriate to give full effect to the Section 338(h)(10) Election for federal, state, local and foreign Tax purposes to the fullest extent permitted by Law.

 

(iv)                               The Purchase Price, liabilities of the Company and other relevant items (including, for example and without limitation, any adjustments or additions to the Purchase Price pursuant to Sections 1.04 , 1.05 or 7.02 of this Agreement) shall be allocated among the Company’s assets deemed to have been acquired pursuant to the Section 338(h)(10) Election in accordance with the purchase price allocation schedule (“ Purchase Price Allocation Schedule ”), attached hereto as Exhibit G .  Buyer shall revise the Purchase Price Allocation Schedule to reflect (i) the Final Closing Cash Purchase Price and (ii) any post-Closing payment made pursuant to, or in connection with, this Agreement and notify Sellers’ Representative in writing of such revision.  To the extent permitted by the Code, the Treasury Regulations thereunder, or other applicable Tax law, any adjustments to the Purchase Price shall be allocated, to the extent possible, to the classes of assets that were the subject of the adjustments to the Purchase Price, and to the extent that such adjustments do not relate to any specific asset classification, shall be allocated to goodwill.  The Purchase Price Allocation Schedule will be binding on all of the parties to this Agreement, and the parties agree to act (and cause their respective Affiliates to act) in accordance with the Purchase Price Allocation Schedule in the preparation, filing and audit of any Tax Return, including IRS Form 8883, IRS Form 8594 and any equivalent state form, and not to take (or permit any of their Affiliates to take) any Tax position inconsistent with the Purchase Price Allocation Schedule.

 

(v)                                  Buyer and Stockholders agree that they shall file (and shall cause the Company to file with respect to its Tax Returns for its Tax period ending on the Closing Date) all federal, state, local and foreign Tax Returns, including IRS Forms 8023, 8594 and 8883 and any applicable state forms, consistent with the effectiveness of the Section 338(h)(10) Election and with the Purchase Price Allocation Schedule.  Buyer and Stockholders agree that they shall not take (and Buyer shall not permit the Company to take) any action that would be inconsistent

 

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with or would prejudice the Section 338(h)(10) Election or the Purchase Price Allocation Schedule.

 

(j)                                     Tax Proceedings .

 

(i)                                      Notwithstanding anything to the contrary in Section 8.05 of this Agreement, Section 7.01(j)  shall apply to Third Party Claims relating to Taxes.

 

(ii)                                   After the Closing, Buyer shall promptly notify the Sellers’ Representative in writing of any Tax assessment or the commencement of any Tax audit, examination, or proceeding proposed by any Taxing Authority relating to Taxes or Tax Returns of the Company for a Pre-Closing Tax Period or a Straddle Period (a “ Tax Proceeding ”) which, if determined adversely to the taxpayer or after the lapse of time, could reasonably be expected to give rise to an indemnification liability of the Stockholders under Article VII or Article VIII or to a Tax liability of the Stockholders; provided, however, that Buyer’s failure to so notify Sellers’ Representative shall not relieve Stockholders of any liability for any Taxes resulting from such Tax Proceeding except to the extent that the such failure materially impairs the ability of Sellers’ Representative to contest such Taxes.

 

(iii)                                Before the Closing, the Sellers’ Representative shall promptly notify Buyer in writing of any Tax Proceeding relating to the Company. The Sellers’ Representative will provide Buyer with copies of all written communications between the Taxing Authority and Sellers’ Representative concerning such Tax Proceeding promptly upon receipt or dispatch of the same.

 

(iv)                               Notices required to be given by or to Buyer, the Stockholders or the Sellers’ Representative shall include copies of any notice or other document received from any Taxing Authority in respect of any such asserted Tax liability.

 

(v)                                  In the case of a Tax Proceeding that relates to any Pre-Closing Tax Period or Straddle Period for which Tax indemnity may be sought from the Stockholders pursuant to this Agreement or which could result in a Tax liability for the Stockholders, the Sellers’ Representative shall have the right to control the conduct of such Tax Proceeding, at his sole cost and expense, provided, however, that Sellers’ Representative shall not have the right to control any Tax Proceeding for a Straddle Period (and Buyer shall control such Tax Proceeding) if Buyer reasonably determines that, in the event of an adverse resolution of such Tax Proceeding, the amount of any increase in Tax for the portion of such Straddle Period ending on the Closing Date is likely to be less than any increase in Tax for the portion of such Straddle Period beginning after the Closing Date.

 

(vi)                               If any Tax Proceeding results in an adjustment to the Purchase Price Allocation, then the Buyer shall pay to Sellers’ Representative in immediately available funds an amount equal to the excess, if any, of (A) the Tax Gross Up Amount calculated based on the Purchase Price Allocation Schedule as

 

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so adjusted and (B) the Tax Gross Up Amount as originally determined.  Such payment by Buyer shall be due no later than ten (10) days after Sellers’ Representative provides to Buyer a copy of (X) the final written decision of the Taxing Authority, (Y) proof of payment of a Tax deficiency by the Stockholders and (Z) a revised Tax Gross Up Amount calculation.

 

(vii)                            Whichever of Sellers’ Representative and Buyer controls a Tax Proceeding shall (1) keep the other of them fully apprised of the status of, and all developments in (including all communications with the relevant taxing authority concerning), such Tax Proceeding, and (2) shall afford the other of them full opportunity to participate (at such other’s own expense) in the conduct of such Tax Proceeding, including, without limitation, the right to participate in conferences with the taxing authority and submit pertinent supporting material.  Neither the Sellers’ Representative nor the Buyer shall settle or compromise any Tax Proceeding for any Pre-Closing Tax Period or Straddle Period without prior written consent of the other of them, which consent shall not be unreasonably delayed, conditioned or withheld.

 

(k)                                  Refunds and Tax Benefits .  To the extent that any Tax of the Company for a Pre-Closing Tax Period is refunded to the Buyer or the Company in cash, or is credited against Tax which would otherwise be due in cash from the Buyer or the Company, such refund or credit shall be for the account of Stockholders.  Buyer shall pay over to Sellers’ Representative the amount of any such refund or credit within fifteen (15) days after the refund is actually received in cash or the Tax against which the credit is applied would otherwise be due.  Any contrary provision of this Section 7.01(k) notwithstanding, the amount of any such refund or credit which is required to be paid to Sellers’ Representative (i) shall be reduced by the amount of any Taxes on such refund and any reasonable out-of-pocket expenses that the Buyer, the Company or any of their respective Subsidiaries or Affiliates incur (or will incur) with respect to such refund or credit, and (ii) shall not include any refund or credit (which shall be for the benefit of the Buyer, the Company or their respective Subsidiaries or Affiliates) that (A) results from the carrying back of any net operating loss, non-capital loss or other Tax attribute or Tax credit incurred in any Tax period other than a Pre-Closing Tax Period; (B) results from an adjustment in Tax for a Pre-Closing Tax Period that results in an increase in Tax for any period which is not a Pre-Closing Tax Period; or (C) is included in the computation of Closing Indebtedness or final Net Working Capital.  To the extent a refund that gave rise to a payment hereunder is subsequently disallowed, or otherwise reduced, Stockholders will be responsible (in the proportions that the refund had been distributed to them pursuant to the first sentence of this Section 7.01(k) ) to refund to Buyer the amount of Taxes that Buyer, the Company or any of their Affiliates incurs as a result of such disallowance, reduction, or loss .

 

(l)                                      Option Cancellation Amount .  Any and all Tax benefit arising from deductions attributable to the payment of the Option Cancellation Amount provided in Section 1.03 realized by the Company shall be for the account of the Stockholders. Accordingly, Tax deductions attributable to the payment of the Option Cancellation Amount shall be reported as deductions of the Company occurring on or before the Closing Date on any Tax Return filed after the Closing Date, unless otherwise required by Law.  For the sake of clarity, the

 

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deductibility of payments attributable to the Option Cancellation Amount shall not be subject to review by the Neutral Accountant under Section 7.01(c)(i) .

 

7.02                         Treatment of Indemnification Payments.

 

Each party will treat all payments made pursuant to this ARTICLE VII as adjustments to the Purchase Price for all purposes.

 

7.03                         Other Rights and Remedies Not Affected.

 

The indemnification rights under this ARTICLE VII are independent of and in addition to such rights and remedies as the parties may have at Law or in equity or otherwise for any misrepresentation, breach of warranty, or failure to fulfill any agreement or covenant contained in this Agreement on the party of any party hereto, including, without limitation, the right to seek specific performance, recession or restitution, none of which rights or remedies shall be affected or diminished hereby.

 

7.04                         Overlap.

 

To the extent that any obligation or responsibility pursuant to ARTICLE VIII may overlap with an obligation or responsibility pursuant to this ARTICLE VII , the provisions of this ARTICLE VII shall govern.

 

ARTICLE VIII.
INDEMNIFICATION

 

8.01                         Survival.

 

All representations, warranties, covenants, and other agreements contained in this Agreement, any Schedule, any Exhibit, or any other certificate, document, or other writing delivered in connection with this Agreement, shall survive the Closing as follows:

 

(a)                                  All Fundamental Representations, covenants, and other agreements shall not terminate and will survive the Closing indefinitely.

 

(b)                                  All Extended Exposure Representations shall survive the Closing until 60 days after the expiration of the applicable statute of limitations period associated with such Liabilities in question (after giving effect to any waivers and extensions thereof).

 

(c)                                   All Standard Representations shall survive the Closing until 12 months following the Closing.

 

8.02                         Indemnification by the Stockholders.

 

(a)                                  Each Stockholder shall, jointly and severally, indemnify, defend, save and hold harmless from and against, and pay on behalf of and reimburse Buyer, the Company, and each of their respective Affiliates, Subsidiaries, Related Persons, employees, agents,

 

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representatives, successors and assigns (the “ Buyer Indemnitees ”) for, any and all Losses based upon, resulting from or arising out of:

 

(i)                                      the breach of any representation or warranty by any Stockholder or the Company contained in this Agreement (other than those set forth in ARTICLE III ), any Schedule, the Company’s Secretary Certificate, as of the Closing Date;

 

(ii)                                   any breach of any covenant or other agreement by any Stockholder or the Company contained in this Agreement or any Schedule;

 

(iii)                                any Sellers’ Expenses and any Indebtedness, in each case to the extent not included in the calculation of the Final Closing Cash Purchase Price; and

 

(iv)                               all matters disclosed on Schedule 8.02(a)(iv) ;

 

provided that (A) this Section 8.02 shall not apply with respect to any Loss relating to Taxes to the extent that indemnification payments for such Loss have been made pursuant to Section 7.01 , and (B) for purposes of this Section 8.02 , the representations and warranties contained in this Agreement, any Schedule, or the Company’s Secretary Certificate shall be deemed to have been made without any qualifications as to materiality and, accordingly, all references herein and therein to “material,” “in all material respects” and similar qualifications as to materiality shall be deemed to be deleted therefrom (except where any such provision requires disclosure of lists of items of a material nature or above a specified threshold).

 

(b)                                  Each Stockholder is solely responsible for and shall indemnify, defend, save and hold harmless from and against, and pay on behalf of and reimburse as and when incurred the Buyer Indemnitees for, any and all Losses resulting from, arising out of, or incurred by any Buyer Indemnitees in connection with, or otherwise relating to the breach by such Stockholder of any representation or warranty by such Stockholder contained in ARTICLE III of this Agreement as of the Closing Date.

 

(c)                                   The Stockholders shall not be liable for any Loss or Losses pursuant to Section 8.02(a)(i) or 8.02(b)  (“ Buyer Warranty Losses ”) (other than with respect to Fundamental Representations and Extended Exposure Representations) (i) unless and until the aggregate amount of all Buyer Warranty Losses incurred by the Buyer Indemnitees exceeds $300,000 (the “ Basket ”), in which case the Stockholders, as applicable, shall be liable for all Buyer Warranty Losses in excess of the Basket, and (ii) to the extent that Buyer Warranty Losses exceed $7,000,000 (the “ Cap ”) in the aggregate.  The Stockholders shall not be liable for any Buyer Warranty Losses with respect to Extended Exposure Representations (other than representations and warranties set forth in Sections 4.16 and 4.17 , which will be subject to the Cap) and Fundamental Representations to the extent that such Buyer Warranty Losses exceed the Purchase Price.  For the avoidance of doubt, the amount of all Losses paid by the Stockholders pursuant to this ARTICLE VIII shall be taken into account in determining whether each of the foregoing liability limits has been met.  For example, if the Stockholders pay $500,000 in respect of a claim for breach of the representations and warranties set forth in Section 4.16 and 4.17 , then the limit on the Stockholder’s liability hereunder for breaches of other Extended Exposure Representations and Fundamental Representations will be the difference between the Purchase

 

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Price and $500,000, subject to the immediately following sentence.  Nothing contained in this Section 8.02(c)  shall be deemed to limit or restrict in any manner any rights or remedies which Buyer has, or might have, at Law, in equity or otherwise, based on fraud, intentional misrepresentation, or any Losses pursuant to Sections 7.01 , 8.02(a)(ii) , 8.02(a)(iii)  or 8.02(a)(iv) .

 

(d)                                  The parties acknowledge and agree that the Stockholders’ aggregate liability to the Buyer Indemnitees in respect of Buyer Warranty Losses based upon, resulting from or arising out of breaches of the representations and warranties set forth in Sections 4.16 and 4.17   and any other representations and warranties set forth in this Agreement relating to or concerning compliance with healthcare Laws (including, without limitation, any representations and warranties set forth in Section 4.19 that could be construed as relating to or concerning compliance with healthcare Laws) shall be limited to an amount equal to the Cap.

 

8.03                         Indemnification by Buyer.

 

(a)                                  Buyer shall indemnify, defend, save and hold harmless from and against, and pay on behalf of and reimburse each Stockholder, its Affiliates, and their respective Related Persons, employees, agents, representatives, successors and assigns (the “ Seller Indemnitees ”) for, any and all Losses based upon, resulting from or arising out of:

 

(i)                                      the breach of any representation or warranty by Buyer contained in this Agreement, any Schedule, or the Buyer’s Secretary Certificate, as of the Closing Date; and

 

(ii)                                   any breach of any covenant or other agreement by Buyer contained in this Agreement or any Schedule;

 

provided that for purposes of this Section 8.03 , the representations and warranties contained in this Agreement, any Schedule, or the Buyer’s Secretary Certificate shall be deemed to have been made without any qualifications as to materiality and, accordingly, all references herein and therein to “material,” “in all material respects” and similar qualifications as to materiality shall be deemed to be deleted therefrom (except where any such provision requires disclosure of lists of items of a material nature or above a specified threshold).

 

(b)                                  Buyer shall not be liable for any Loss or Losses pursuant to Section 8.03(a)(i)  (“ Seller Warranty Losses ”) (other than with respect to Fundamental Representations) (i) unless and until the aggregate amount of all Seller Warranty Losses incurred by the Seller Indemnitees exceeds the Basket, in which case Buyer shall be liable for all Seller Warranty Losses, and (ii) to the extent that Seller Warranty Losses exceed the Cap in the aggregate.  Buyer shall not be liable for any Seller Warranty Losses with respect to Fundamental Representations to the extent that such Seller Warranty Losses exceed the Purchase Price. Nothing contained in this Section 8.03 shall be deemed to limit or restrict in any manner any rights or remedies which any Stockholder has, or might have, at Law, in equity or otherwise, based on fraud, intentional misrepresentation, or any Losses pursuant to Section 8.03(a)(ii) .

 

8.04                         Time Limitations.

 

(a)                                  The Stockholders shall have liability under Section 8.02 with respect to a breach of an Extended Exposure Representation or a Standard Representation, as the case may

 

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be, only if the Buyer Indemnitee notifies Sellers’ Representative of a claim (specifying the factual basis of the claim in reasonable detail to the extent known by such Buyer Indemnitee) on or before the expiration date of the applicable survival period set forth in Section 8.01 that relates to the alleged breached representation or warranty in question.

 

(b)                                  Buyer shall have liability under Section 8.03 with respect to a breach of a Standard Representation only if the Seller Indemnitee notifies Buyer of a claim (specifying the factual basis of the claim in reasonable detail to the extent known by such Seller Indemnitee) on or before the expiration date of the applicable survival period set forth in Section 8.01 that relates to the alleged breached representation or warranty in question.

 

8.05                         Indemnification Procedures for Third Party Claims.

 

(a)                                  In the event that an Indemnitee receives notice of the assertion of any claim or the commencement of any Action by a third party in respect of which indemnity may be sought under the provisions of this ARTICLE VIII (“ Third Party Claim ”), the Indemnitee shall promptly notify the Indemnitor in writing (“ Notice of Claim ”) of such Third Party Claim.  Failure or delay in notifying the Indemnitor will not relieve the Indemnitor of any liability it may have to the Indemnitee, except and only to the extent that such failure or delay causes actual harm to the Indemnitor with respect to such Third Party Claim.  The Notice of Claim shall set forth the amount, if known, or, if not known, an estimate of the foreseeable maximum amount of claimed Losses (which estimate shall not be conclusive of the final amount of such Losses) and a description of the basis for such Third Party Claim.  Notwithstanding the foregoing, in the case of any claim for indemnification hereunder by or against a Stockholder, Sellers’ Representative shall act on behalf of such Stockholders for the purposes of this Section 8.05 and any actions taken (or not taken) by Sellers’ Representative on behalf of any such Stockholder shall be binding on such Stockholder as an Indemnitor or Indemnitee, as the case may be, hereunder.  All notices to any Stockholder under this Section 8.05 may be provided by Buyer to Sellers’ Representative in lieu of providing such notice to any specific Stockholder.

 

(b)                                  Subject to the further provisions of this Section 8.05 , the Indemnitor will have twenty (20) days (or less if the nature of the Third Party Claim requires) from the date on which the Indemnitor received the Notice of Claim to notify the Indemnitee that the Indemnitor will assume the defense or prosecution of such Third Party Claim and any litigation resulting therefrom with counsel of its choice (reasonably satisfactory to the Indemnitee) and at its sole cost and expense (a “ Third Party Defense ”).  The Indemnitor will reasonably cooperate with the Indemnitor during such twenty (20) day period (including providing such information and documents relating to such Third Party Claim as the Indemnitor may reasonably request) as Indemnitor determines whether it wishes to assume such Third Party Claim.  If the Indemnitor assumes the Third Party Defense in accordance with the preceding sentence, the Indemnitor shall be conclusively deemed to have acknowledged that the Third Party Claim is within the scope of its indemnity obligation hereunder and shall hold the Indemnitee harmless from and against the full amount of any Losses resulting therefrom (subject to the terms and conditions of this Agreement, including the limitations set forth herein).  Any Indemnitee shall have the right to employ separate counsel in any such Third Party Defense and to participate therein, but the fees and expenses of such counsel shall not be at the expense of the Indemnitor unless (A) the Indemnitor shall have failed, within the time after having been notified by the Indemnitee of the

 

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existence of the Third Party Claim as provided in the first sentence of this paragraph (b), to assume the defense of such Third Party Claim, or (B) the employment of such counsel has been specifically authorized in writing by the Indemnitor, which authorization shall not be unreasonably withheld.

 

(c)                                   The Indemnitor will not be entitled to assume the Third Party Defense if:

 

(i)                                      the Third Party Claim seeks, in addition to or in lieu of monetary damages, any injunctive or other equitable relief (except where non-monetary relief is merely incidental to a primary claim or claims for monetary damages);

 

(ii)                                   the Third Party Claim relates to or arises in connection with any criminal Proceeding, Action, indictment, allegation or investigation;

 

(iii)                                the Third Party Claim relates to or arises in connection with any Action relating to Environmental Requirements;

 

(iv)                               under applicable standards of professional conduct, a conflict on any significant issue exists between the Indemnitee and the Indemnitor in respect of the Third Party Claim;

 

(v)                                  the Third Party Claim involves a material customer or supplier of the Company;

 

(vi)                               the Indemnitor has failed or is failing to vigorously prosecute or defend such Third Party Claim; or

 

(vii)                            the Indemnitor fails to provide reasonable assurance to the Indemnitee of its financial capacity to prosecute the Third Party Defense and provide indemnification in accordance with the provisions of this Agreement.

 

(d)                                  If by reason of a Third Party Claim in respect of which the Indemnitor is liable for any indemnification hereunder, a Lien, attachment, garnishment or execution is placed upon any of the property or assets of the Indemnitee, the Indemnitor, if it desires to exercise its right to assume such Third Party Defense, must furnish a satisfactory indemnity bond to obtain the prompt release of such Lien, attachment, garnishment or execution.

 

(e)                                   If the Indemnitor assumes a Third Party Defense, it will take all steps necessary in the vigorous defense, prosecution, or settlement of such claim or litigation and will hold all Indemnitees harmless from and against all Losses caused by or arising out of such Third Party Claim for which the Indemnitor is liable pursuant to the terms and conditions of this ARTICLE VIII , subject to the terms and conditions of this Agreement and the limitations set forth herein.  The Indemnitor will not consent to the entry of any judgment or enter into any settlement on behalf of the Indemnitee unless the Indemnitor has first acknowledged that the Third Party Claim is within the scope of its indemnity obligation hereunder and has agreed to hold the Indemnitee harmless from and against the full amount of Losses resulting therefrom (subject to the terms and conditions of this Agreement, including the limitations set forth herein).  Further, the Indemnitor will not consent to the entry of any judgment or enter into any settlement

 

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on behalf of the Indemnitee except with the written consent of the Indemnitee; provided , that the consent of the Indemnitee shall not be required if all of the following conditions are met: (i) the terms of the judgment or proposed settlement include as an unconditional term thereof the giving to the Indemnitees by the third party of a release of the Indemnitees from all liability in respect of such Third Party Claim, (ii) there is no finding or admission of (A) any violation of Law by the Indemnitees (or any Affiliate thereof), (B) any violation of the rights of any Person, and (C) no effect on any other Action or claims of a similar nature that may be made against the Indemnitees (or any Affiliate thereof), and (iii) the sole form of relief is monetary damages which are paid in full by the Indemnitor.  The Indemnitor shall conduct the defense of the Third Party Claim actively and diligently, and the Indemnitee will provide reasonable cooperation in the defense of the Third Party Claim.  So long as the Indemnitor is reasonably conducting the Third Party Defense in good faith, the Indemnitee will not consent to the entry of any judgment or enter into any settlement with respect to the Third Party Claim without the prior written consent of the Indemnitor (not to be unreasonably withheld or delayed).  Notwithstanding the foregoing, the Indemnitee shall have the right to pay or settle any such Third Party Claim; provided , that in such event it shall waive any right to indemnity therefor by the Indemnitor for such claim unless the Indemnitor shall have consented to such payment or settlement (such consent not to be unreasonably withheld or delayed).  If the Indemnitor is not reasonably conducting the Third Party Defense in good faith, the Indemnitee shall have the right to consent to the entry of any judgment or enter into any settlement with respect to the Third Party Claim without the prior written consent of the Indemnitor and the Indemnitor shall reimburse the Indemnitee promptly for all Losses incurred in connection with such judgment or settlement, subject to the terms and conditions of this Agreement and the limitations set forth herein.

 

(f)                                    In the event that (i) an Indemnitee gives Notice of Claim to the Indemnitor and the Indemnitor fails or elects not to assume a Third Party Defense which the Indemnitor had the right to assume under this Section 8.05 , or (ii) the Indemnitor is not entitled to assume the Third Party Defense pursuant to this Section 8.05 , the Indemnitee shall have the right, with counsel of its choice, to defend, conduct and control the Third Party Defense, at the sole cost and expense of the Indemnitor, subject to the terms and conditions of this Agreement and the limitations set forth herein.  In each case, the Indemnitee shall conduct the Third Party Defense actively and diligently, and the Indemnitor will provide reasonable cooperation in the Third Party Defense.  The Indemnitee shall have the right to consent to the entry of any judgment or enter into any settlement with respect to the Third Party Claim on such terms as it may deem appropriate.  Notwithstanding any provision to the contrary, in connection with any Third Party Claim, the Indemnitor hereby consents to the nonexclusive jurisdiction of any court in which an Action in respect of a Third-Party Claim is brought against any Indemnitee for purposes of any claim that the Indemnitee may have under this ARTICLE VIII with respect to such Action or the matters alleged therein and agrees that process may be served on the Indemnitor with respect to such a claim anywhere in the world.  If the Indemnitor does not elect to assume a Third Party Defense which it has the right to assume hereunder, the Indemnitee shall have no obligation to do so.

 

(g)                                   Each party to this Agreement shall use its reasonable best efforts to cooperate and to cause its employees to cooperate with and assist the Indemnitee or the Indemnitor, as the case may be, in connection with any Third Party Defense, including attending conferences, discovery proceedings, hearings, trials and appeals and furnishing records,

 

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information and testimony, as may reasonably be requested; provided that each party shall use its reasonable best efforts, in respect of any Third Party Claim of which it has assumed the defense, to preserve the confidentiality of all Confidential Information and the attorney-client and work-product privileges.

 

8.06                         Indemnification Procedures for Non-Third Party Claims.

 

In the event of a claim that does not involve a Third Party Claim being asserted against it, the Indemnitee shall send a Notice of Claim to the Indemnitor.  The Notice of Claim shall set forth the amount, if known, or, if not known, an estimate of the foreseeable maximum amount of claimed Losses (which estimate shall not be conclusive of the final amount of such Losses) and a description of the basis for such claim.  The Indemnitor will have 30 days from receipt of such Notice of Claim to dispute the claim and will reasonably cooperate and assist the Indemnitee in determining the validity of the claim for indemnity.  During such 30-day period, the Indemnitee shall allow the Indemnitor and its professional advisors to investigate the matter or circumstance alleged to give rise to the claim, and whether and to what extent any amount is payable in respect of the claim and the Indemnitee shall provide such information with respect thereto, as the Indemnitor or any of its professional advisors may reasonably request.  If the Indemnitor does not give written notice to the Indemnitee that it disputes such claim within 30 days after its receipt of the Notice of Claim, the claim specified in such Notice of Claim will be conclusively deemed a Loss subject to indemnification hereunder.  Notwithstanding the foregoing, in the case of any Stockholder, Sellers’ Representative shall act on behalf of such Stockholders for the purposes of this Section 8.06 and any actions taken (or not taken) by Sellers’ Representative on behalf of any such Stockholder shall be binding on such Stockholder as an Indemnitor or Indemnitee, as the case may be, hereunder.  All notices to any Stockholder under this Section 8.06 may be provided by Buyer to Sellers’ Representative in lieu of providing such notice to any specific Stockholder.

 

8.07                         Contingent Claims.

 

Nothing herein shall be deemed to prevent an Indemnitee from making a claim hereunder for potential or contingent claims or demands; provided that the Notice of Claim sets forth the specific basis for any such contingent claim to the extent then feasible and the Indemnitee has reasonable grounds to believe that such a claim may be made.

 

8.08                         Effect of Investigation; Waiver.

 

(a)                                  An Indemnitee’s right to indemnification, payment, reimbursement or other remedies based upon any representation, warranty, covenant or agreement of the Indemnitor will not be affected by any investigation (including any environmental investigation or assessment) conducted, any Knowledge acquired at any time (whether obtained prior to or after the Closing Date), or any waiver by the Indemnitee of any condition, with respect to the accuracy or inaccuracy of any representation or warranty of, or compliance with, such representation, warranty, covenant or agreement.  Such representations, warranties, covenants, and agreements shall not be affected or deemed waived by reason of the fact that the Indemnitee knew or should have known that any representation or warranty might be inaccurate or that the Indemnitor failed to comply with any agreement or covenant.  The representations and

 

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warranties and indemnification rights associated therewith are meant to allocate risk among the parties, and, therefore, any investigation by such party shall be for its own protection only and shall not affect or impair any right or remedy hereunder.

 

(b)                                  Each Stockholder acknowledges and agrees that, upon and following the Closing, the Company shall not have any Liability or obligation to indemnify, save or hold harmless or otherwise pay, reimburse or make any Stockholder whole for or on account of any indemnification or other claims made by any Buyer Indemnitee hereunder.  No Stockholder will have a right of contribution, indemnification, claim under the Company’s organizational documents or otherwise, or any other form of remuneration against the Company in respect of such indemnification, except as provided in Section 6.06(c) .

 

8.09                         Setoff Rights.

 

Upon notice to Sellers’ Representative specifying in reasonable detail the basis therefor, Buyer may set off any amount to which Buyer is entitled from any Stockholder, including any amounts that Buyer is owed under Sections 1.03 and this ARTICLE VIII or otherwise, against amounts otherwise payable by Buyer under any provision of this Agreement.  Neither the exercise of, nor the failure to exercise such right of setoff will constitute an election of remedies or limit Buyer in any manner in the enforcement of any other remedies that may be available to it.

 

8.10                         Treatment of Indemnification Payments.

 

Each party will treat all payments made pursuant to this ARTICLE VIII as adjustments to the Purchase Price for all purposes to the extent allowed by applicable Law.

 

8.11                         Exclusive Remedy.

 

Effective as of the Closing, in the absence of fraud, willful misconduct or intentional misrepresentation by the Company, the Stockholders or the Buyer, the parties agree that the sole remedy of the parties, except as provided in Section 1.04(c) , Section 1.05(d)(ii) , Section 6.04 , Section 7.01(c) , and Section 7.01(i) , for any breach of any representation, warranty, covenant or other claim arising out of or relating to this Agreement and the transactions contemplated hereby are the indemnification obligations of the parties set forth in ARTICLE VII and this ARTICLE VIII ; provided that, notwithstanding the foregoing, nothing set forth in ARTICLE VII and this ARTICLE VIII shall be deemed to prohibit any party’s right at any time to seek injunctive or equitable relief for the failure of any party to perform any covenant or agreement herein.

 

8.12                         Payment of Indemnification .

 

Notwithstanding anything to the contrary contained in this ARTICLE VIII , any indemnification obligations of the Stockholders to the Buyer Indemnitees must first be drawn from the Escrow Account.  Thereafter, the Stockholders will be jointly and severally liable or solely liable, as applicable, for all indemnification obligations to the Buyer Indemnitees pursuant to this Agreement, subject to the limitations contained herein.

 

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8.13                         Mitigation .

 

Each Indemnitee shall take, and cause its Affiliates to take, commercially reasonable steps under the circumstances to mitigate any Losses.

 

8.14                         Calculation of Losses .

 

Payments by an Indemnitor pursuant to this ARTICLE VIII in respect of any Losses will be limited to the amount of any liability or damage that remains after deducting therefrom any insurance proceeds actually received by the Indemnitee in respect of any such claim, less (a) expenses, (b) increases in premiums and (c) amounts counted towards the Basket.  The Indemnitee will use its commercially reasonable efforts to recover under insurance policies for any such Losses, provided, however, that nothing shall require the Indemnitee to (i) pursue such insurance prior to seeking indemnification under this ARTICLE IX or (ii) commence litigation to recover proceeds under such insurance policies.

 

ARTICLE IX.
SELLERS’ REPRESENTATIVE

 

9.01                         Designation.

 

Ronald McFarlane (“ Sellers’ Representative ”) is hereby designated by each of the Stockholders to serve as the representative of the Stockholders with respect to the matters expressly set forth in this Agreement to be performed by Sellers’ Representative.

 

9.02                         Authority; Successor.

 

(a)                                  Authority .  Each of the Stockholders, by the execution of this Agreement, hereby irrevocably appoints Sellers’ Representative as the agent, proxy and attorney in fact for such Stockholder for all purposes of this Agreement (including the full power and authority on such Stockholder’s behalf) (i) to consummate the transactions contemplated herein, (ii) to disburse any funds received hereunder to such Stockholder and each other Stockholder, (iii) to endorse and deliver any certificates or instruments representing the Shares and execute such further instruments of assignment as Buyer shall reasonably request, (iv) to execute and deliver on behalf of such Stockholder any amendment or waiver hereto, (v) to take all other actions to be taken by or on behalf of such Stockholder in connection herewith, (vi) to agree upon the Estimated Closing Cash Purchase Price, (vii) to object on behalf on each of the Stockholders with respect to any disagreements or disputes relating to the Final Closing Cash Purchase Price, (viii) to give and receive all notices and communications to be given or received under this Agreement and the Escrow Agreement and to receive service of process in connection with any claims under this Agreement, including service of process in connection with any litigation, (ix) to act for such Stockholders with regard to matters pertaining to indemnification referred to herein or the Escrow Agreement, including, without limitation, the power to compromise on behalf such Stockholder of any claim made by such Stockholder, to bring, respond to, and transact matters of litigation, (x) to execute and deliver on behalf of each Stockholder all ancillary agreements, certificates, statements, notices, approvals, extensions, waivers, undertakings, amendments and other documents Sellers’ Representative deems appropriate in

 

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connection with responding to, compromising or settling any claims made by a Stockholder, (xi) to receive funds for, and cause the disbursement of funds from, the Escrow Account (as defined in the Escrow Agreement), and (xii) to do or refrain from doing each and every act and exercise any and all rights which such Stockholder or the Stockholders collectively are permitted or required to do or exercise under this Agreement.  Each of the Stockholders agrees that such agency and proxy are coupled with an interest, are therefore irrevocable without the consent of Sellers’ Representative and shall survive the death, incapacity, bankruptcy, dissolution or liquidation of any Stockholder.  All decisions and actions by Sellers’ Representative (to the extent authorized by this Agreement) shall be binding upon all of the Stockholders, and no Stockholder shall have the right to object, dissent, protest or otherwise contest the same.  Each Stockholder agrees that Buyer shall be entitled to rely on any action taken by Sellers’ Representative, on behalf of such Stockholder, pursuant to this Section 9.02 (an “ Authorized Action ”), and that each Authorized Action shall be binding on each Stockholder as fully as if such Stockholder had taken such Authorized Action.  Sellers’ Representative shall not be liable to any Stockholder for any error of judgment, or any action taken, suffered or omitted to be taken, under this Agreement or the Escrow Agreement.  Sellers’ Representative may consult with legal counsel, independent public accountants or other experts selected by him, her, or it and shall not be liable for any action taken or omitted to be taken in good faith by him in accordance with the advice of such counsel, accountants or experts.  By executing and delivering this Agreement, each Stockholder agrees that it shall indemnify (on a pro rata basis) and hold Sellers’ Representative harmless from any and all liability, loss, cost, damage or expense (including attorneys’ fees) reasonably incurred or suffered as a result of the performance of his, her, or its duties under this Agreement, except such that arises from the gross negligence or willful misconduct or fraud of Sellers’ Representative.

 

(b)                                  Successor .  Within 15 days after the death, incapacity or resignation of Sellers’ Representative, or his, her, or its successor as Sellers’ Representative, a majority-in-interest of the holders of the Shares immediately prior to the Closing shall appoint a successor Sellers’ Representative.

 

ARTICLE X.
DEFINITIONS

 

10.01                  Definitions.

 

For purposes of this Agreement, the following terms, when used herein with initial capital letters, shall have the respective meanings set forth herein:

 

Action ” means any claim, action, cause of action, demand, lawsuit, arbitration, inquiry, audit, notice of violation, Proceeding, litigation, citation, summons, subpoena or investigation of any nature, civil, criminal, administrative, regulatory or otherwise, whether at law or in equity.

 

Actual Gross Profit ” has the meaning set forth in Section 1.05(c) .

 

Actual Revenue ” has the meaning set forth in Section 1.05(c) .

 

Affiliate ” means, with respect to any Person, any other Person that, directly or indirectly, controls, is controlled by or is under common control with such first Person.

 

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Aggregate Option Cancellation Amount ” means the sum of all Option Cancellation Amounts.

 

Agreement ” has the meaning set forth in the preamble.

 

AmerisourceBergen Deposit ” has the meaning set forth in Section 1.04(g) .

 

Annual Gross Profit Target ” has the meaning set forth in Section 1.05(c) .

 

Annual Revenue Target ” has the meaning set forth in Section 1.05(c) .

 

Audited Financial Statements ” has the meaning set forth in Section 4.05 .

 

Authorized Action ” has the meaning set forth in Section 9.02(a) .

 

Basket ” has the meaning set forth in Section 8.02(b) .

 

BCBSNC AR ” has the meaning set forth in Section 1.04(f) .

 

BCBSNC Uncollected AR ” has the meaning set forth in Section 1.04(f) .

 

Benefit Plan ” means any “employee benefit plan” (as such term is defined in ERISA Section 3(3)) and any other employee benefit plan, program, nonqualified deferred compensation plan, severance or similar arrangement of any kind that applies to current or former employees or directors (or their spouses or dependent children) of the Company that the Company maintains, to which the Company contributes or has any obligation to contribute, or with respect to which the Company has any Liability or potential Liability.

 

Business ” means the business of (a) selling, marketing or providing infusion or injectable pharmacy and nursing services, including but not limited to specialty pharmacy services, selling, marketing or providing infused or injected healthcare products (per a valid patient-specific prescription) to patients, to be administered at the patient’s home or at an alternative clinical site, provision of clinical care management services for hemophilia, von Willebrand disease and related bleeding disorders, intravenous and subcutaneous immunoglobulin therapies (for primary immune and neurological conditions), and other miscellaneous therapies (b) providing training and education of patients and their caregivers and families through various methods, patient and family support, nursing, insurance processing and community support, (c) participating in and sponsoring community events and assisting in the development of relationships between the Company’s clients and community agencies that aid patients with specific illnesses, and (d) all other business conducted or presently proposed to be conducted by the Company as of the Closing.

 

Business Day ” means any day except Saturday, Sunday or any other day on which commercial banks located in Michigan are authorized or required by Law to be closed for business.

 

Buyer ” has the meaning set forth in the preamble.

 

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Buyer Business ” means the Business and (a) selling, marketing or provision of specialty and plasma-based drugs, infusion pumps and medically necessary ancillary administration supplies, home health nursing support (sub-contracted or otherwise) to patients or physicians, (b) providing drug therapy and clinical care management programs for clients and patients, (c) providing a patient care system to coordinate and track patient compliance outcomes and safety, (d) providing assistance to patients in navigating benefit programs and third-party financial assistance to address coverage deficiencies, (e) providing educational training and consulting to physicians, patients, pharmacists, payors and pharmaceutical companies on topics unique to the specialty pharmacy industry, and (f) providing clinical and administrative support services to hospitals and health systems.

 

Buyer Financial Statements ” has the meaning set forth in Section 5.05 .

 

Buyer Indemnitees ” has the meaning set forth in Section 8.02(a) .

 

Buyer Interim Financial Statements ” has the meaning set forth in Section 5.05 .

 

Buyer Exchange Documents ” has the meaning set forth in Section 2.02(a)(iv) .

 

Buyer Warranty Losses ” has the meaning set forth in Section 8.02(b) .

 

Buyer’s Secretary Certificate ” has the meaning set forth in Section 2.02(a)(iv) .

 

Calculation Period ” has the meaning set forth in Section 1.05(c) .

 

Cap ” has the meaning set forth in Section 8.02(b) .

 

Cash on Hand Adjustment Amount ” means an amount, if any, equal to all unrestricted cash on hand of the Company as of immediately prior to the Closing.

 

Change in Control of Buyer ” means the sale of all or substantially all of the assets of Buyer and its subsidiaries or a sale of 51% or more of the voting power or equity interests of Buyer, whether by merger, consolidation or otherwise. Notwithstanding the foregoing, an initial public offering of the equity interests of Buyer shall not constitute a Change in Control of Buyer.

 

Closing ” has the meaning set forth in Section 2.01 .

 

Closing Date ” has the meaning set forth in Section 2.01 .

 

Closing Indebtedness ” means the sum of all Indebtedness of the Company as of immediately prior to the Closing.

 

Closing Statement ” has the meaning set forth in Section 1.04(a) .

 

COBRA ” means the requirements of Part 6 of Subtitle B of Title I of ERISA and Code Section 4980B and of any similar state Law.

 

Code ” means the United States Internal Revenue Code of 1986, as amended.

 

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Company ” has the meaning set forth in the preamble.

 

Company’s Secretary Certificate ” has the meaning set forth in Section 2.02(b)(xiii) .

 

Compliance Program ” has the meaning set forth in Section 4.17(a) .

 

Confidential Information ”  means any information that has value to the Company and is not generally known to its competitors, including client lists and information, design details, technical information and specifications, marketing techniques, plans and procedures, instruction manuals, know-how, trade secrets, information concerning market conditions, marketing and business information generally, scientific information, financial information, price policies and other material of whatever description regarding the products, services, affairs, businesses or method of carrying on business of the Company. Confidential Information does not include any information that becomes generally available to the public other than as a result of a breach by a party of this Agreement.

 

Contingent Payment ” has the meaning set forth in Section 1.05 .

 

Contingent Payment Pro Rata Share ” has the meaning set forth in Schedule 1.05(e) .

 

Contingent Payment Statement ” has the meaning set forth in Section 1.05(d)(i) .

 

Contract ” means any oral or written agreement, instrument, license, document, lease, employee benefit or welfare plan or other business or commercial arrangement or commitment (in each case, including any extension, renewal, amendment or other modification thereof) to which such Person is a party or by which such Person is bound.

 

COTS License ” means computer s oftware programs licensed to the Company on generally commercially available terms for less than $20,000 .

 

CPS Review Period ” has the meaning set forth in Section 1.05 .

 

Dispute Notice ” has the meaning set forth in Section 1.04(a) .

 

Employee Pension Benefit Plan ” means any “employee pension benefit plan” as such term is defined in ERISA Section 3(2).

 

Employee Welfare Benefit Plan ” means any “employee welfare benefit plan” as such term is defined in ERISA Section 3(1).

 

Employment Agreement ” has the meaning set forth in Section 2.02(b)(v) .

 

Environmental Requirements ” means all Laws and all obligations under any Governmental Order concerning pollution or protection of the environment, including all those relating to the presence, use, production, generation, handling, transport, treatment, storage, disposal, distribution, labeling, testing, processing, discharge, release, threatened release, control or cleanup of Hazardous Substances, each as amended and as now in effect.

 

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Environmental Lien ” means any Lien, either recorded or unrecorded, in favor of any Governmental Entity and relating to any Liability arising under Environmental Requirements.

 

Environmental Permits ” is defined in Section 4.21(b) .

 

ERISA ” means the Employee Retirement Income Security Act of 1974, as amended.

 

ERISA Affiliate ” means any entity, trade or business that is a member of a group described in Section 414(b), (c), (m) or (o) of the Code or Section 4001(b)(1) of ERISA, or that is a member of the same “controlled group” with the Company pursuant to Section 4001(a)(14) of ERISA.

 

Escrow Account ” has the meaning provided in the Escrow Agreement.

 

Escrow Agent ” has the meaning set forth in Section 2.02(a)(i) .

 

Escrow Agreement ” has the meaning set forth in Section 2.02(a)(i) .

 

Escrow Amount ” has the meaning set forth in Section 2.02(a)(i) .

 

Estimated Closing Cash Purchase Price ” has the meaning set forth in Section 1.02(b) .

 

Exchange Act ” means the Securities Exchange Act of 1934, as the same may be amended.

 

Exchanged Equity ” has the meaning set forth in Section 1.02(a) .

 

Extended Exposure Representations ” means those representations and warranties set forth in Sections 4.08 (Tax Matters), 4.15 (Employee Benefits Plans), 4.16 (Medicare and Medicaid Participation), 4.17 (Regulatory Compliance), 4.19 (Compliance with Laws) and 4.20 (Environmental Matters).

 

Final Closing Cash Purchase Price ” has the meaning set forth in Section 1.04(a) .

 

Financial Statements ” has the meaning set forth in Section 4.05 .

 

First Calculation Period ” has the meaning set forth in Section 1.05(c) .

 

Fundamental Representations ” means those representations and warranties set forth in Sections 3.01 (Organization and Authority), 3.02 (Absence of Conflicts) 3.03 (Ownership of the Shares), 3.04 (Stockholders’ Broker), 4.01 (Organization and Authority), 4.02 (Authorization), 4.03 (Capitalization; Subsidiaries), 4.04 (Absence of Conflicts), 4.20 (Affiliate Transactions), 4.22(a)  (Tangible Assets; Title), 4.34 (Company Broker), 5.01 (Organization and Power), 5.02 (Authorization), 5.03 (Absence of Conflicts) and 5.04 (Buyer’s Broker).

 

GAAP ” means United Stated generally accepted accounting principles, consistently applied.

 

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Governmental Entity ” means any government, agency, governmental department, commission, board, bureau, court, arbitration panel or instrumentality of the United States of America or any foreign government or any state, municipality or other political subdivision in or of any of the foregoing (whether now or hereafter constituted and/or existing) and any court, agency, instrumentality, regulatory commission or other entity exercising executive, legislative, judicial, regulatory or administrative functions of or pertaining to government.

 

Governmental Order ” means any order, writ, judgment, injunction, decree, stipulation, determination or award entered by or with any Governmental Entity.

 

Government Programs ” has the meaning set forth in Section 4.16(a) .

 

Hazardous Substances ” means any hazardous materials, substances or wastes, chemical substances or mixtures, pesticides, pollutants, contaminants, toxic chemicals, petroleum products or byproducts, asbestos, polychlorinated biphenyls, radioactive materials, or any other substance which is or may be harmful to human health or the environment or which is regulated, limited or prohibited under any Environmental Requirement.

 

Headquarters Property ” has the meaning set forth in Section 2.02(a)(vii) .

 

Headquarters Property Lease ” has the meaning set forth in Section 2.02(a)(vii) .

 

HIPAA ” means the Health Insurance Portability and Accountability Act of 1996 (Pub. Law 104-191), as amended from time to time.

 

HITECH ” means the Health Information Technology for Economic Clinical Health Act, Division A, Title XIII § 1301 et. seq. of the American Recovery and Reinvestment Act of 2009, as amended from time to time.

 

Indebtedness ” of any Person, means, without duplication, the sum of (i) all obligations of such Person for borrowed money and any accrued interest, prepayment premiums, or other obligations related thereto (other than trade accounts payable), (ii) all obligations of such Person for evidenced by bonds, debentures, notes, or similar instruments, (iii) all obligations of such Person under conditional sale or title retention agreements relating to any property or assets purchased by such Person, (iv) all obligations of such Person issued or assumed as the deferred purchase price for property or services (other than trade accounts payable), including, without limitation, any earn-out or similar payment obligations, (v) all obligations of such Person as lessee under any capital leases, (vi) all obligations of such Person under any interest rate swap agreements or interest rate hedge agreements, (vii) obligations, whether contingent or liquidated, in respect of letters of credit (including standby and commercial), bankers’ and similar instruments, (viii) all obligations secured by a Lien on any assets of the Company (other than Permitted Liens), (ix) all negative cash or overdraft balances, (x) all unpaid Taxes of such Person for all pre-Closing Tax Periods, (xi) any interest, principal, prepayment penalty, fees, or expenses of such Person relating to any of the foregoing, and (xiii) any obligation of such Person, contingent or otherwise, guaranteeing or having the economic effect of guaranteeing any of the foregoing.

 

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Indemnitee ” means any Person that is seeking indemnification from an Indemnitor pursuant to the provisions of this Agreement.

 

Indemnitor ” means any party hereto from which any Indemnitee is seeking indemnification pursuant to the provisions of this Agreement.

 

Interim Financial Statements ” has the meaning set forth in Section 4.05 .

 

Knowledge of the Buyer ” means the knowledge of Phil Hagerman and Jeff Rowe as to the existence of any fact, circumstance or condition that would make the relevant statement untrue, in each case obtained or obtainable after reasonable inquiry under the circumstances

 

Knowledge of the Company ” or “ to the Company’s Knowledge ” or a similar phrase means the knowledge of Ronald McFarlane, Nancy McFarlane, Mark Poteet, Tom Wells (but only to the extent of his areas of responsibility for the Company, which include billing and collections (reimbursements), purchasing (vendor contracts), IT supervision and payer contract management) and Andrew Clark (collectively, the “ Company Knowledge Group ”) as to the existence of any fact, circumstance or condition that would make the relevant statement untrue, in each case obtained or obtainable after reasonable inquiry under the circumstances .

 

Knowledge of the Stockholders ” or “ to the Stockholders’ Knowledge ” or a similar phrase means the knowledge of each Stockholder as to the existence of any fact, circumstance or condition that would make the relevant statement untrue, in each case obtained or obtainable after reasonable inquiry under the circumstances.

 

Law ” means all federal, state, local and foreign laws, statutes, codes, rules, regulations, ordinances, judgments, orders, decrees and the like of any Governmental Entity, including common law.

 

Law Firm ” has the meaning set forth in Section 11.16 .

 

Leased Real Property ” means all leasehold or subleasehold estates and other rights to use or occupy any land, building, structures, improvements, fixtures or other interest in real property held by the Company.

 

Leases ” means all real property leases, subleases, licenses, concessions and other agreements (written or oral), including all amendments, extensions, renewals, guaranties and other agreements with respect thereto, to which the Company is a party, including the right to all security deposits and other amounts and instruments deposited by or on behalf of the Company thereunder.

 

Liability ” means any liability (whether known or unknown, whether asserted or unasserted, whether absolute or contingent, whether accrued or unaccrued, whether liquidated or unliquidated, and whether due or to become due), including any liability for Taxes.

 

Lien ” means any charge, claim, community or other marital property interest, condition, equitable interest, lien (whether voluntary, involuntary, statutory, or other), option, pledge, hypothecation, preference, priority, security interest, mortgage, right of way, easement,

 

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encroachment, servitude, conditional sale or other title retention arrangement, security or other deposits, right of first option, right of first refusal, or restriction of any kind, including, without limitation, any restriction on use, voting, transfer, receipt of income, or exercise of any other attribute of ownership.

 

Losses ” means any (i) damage (except to the extent provided in the next sentence), including those that consist of or constitute any loss, Liability, obligation, deficiency, Tax, judgment, award, assessment, penalty, interest, fine, cost or expense or whatever kind, in each case, whether or not arising out of third-party claims, and (ii) reasonable legal, consultant, accounting, professional fees, and other costs of defense, costs of sampling, testing, investigation, removal, treatment and remediation of contamination, and all reasonable amounts paid in investigation or defense thereof (including any of the foregoing which are incurred in connection with enforcing such Person’s indemnification rights hereunder), including, as the context may require, any of the foregoing which arise out of or in connection with any Actions, and amounts paid in settlement of the foregoing. “Losses” specifically excludes liability for punitive damages, except punitive damages, actually paid or payable by a Party as a result of a Third Party Claim pursuant to ARTICLE VIII .

 

Material Adverse Effect ” means any effect, condition or change that would be materially adverse to the business, assets, condition (financial or otherwise), operating results, or operations of a Person, taken as a whole; provided , however , that Material Adverse Effect shall exclude any adverse effects, changes or conditions as and to the extent such effects, changes or conditions result from (a) the announcement or publicizing of the transactions contemplated by this Agreement in accordance with this Agreement, (b) the communication by Buyer of its plans or intentions with respect to the Company, (c) the consummation of the transactions contemplated by this Agreement or any actions by Buyer, the Company or the Stockholders taken pursuant to this Agreement, (d) general deterioration in the economic conditions or in financial markets, (e) general deterioration in or other conditions generally affecting the industry in which the Company competes (except to the extent such deterioration is disproportionately adverse to the Company relative to other Persons in the industry), (f) any change or effect resulting from an act of war or terrorism, or (g) any change or effect resulting from changes in GAAP .

 

Multiemployer Plan ” means an employee pension benefit plan that is defined in ERISA Sections 3(37) or 4001(a)(3).

 

Net Working Capital ” means, as of any date of determination, (A) the sum of the following current assets of the Company: accounts receivable, net of allowances and credits, inventory and prepaid expenses, minus (B) the sum of the following current liabilities of the Company: accounts payable, accrued commissions, accrued payroll taxes and employee withholdings, accrued nursing expense and other current accrued expenses, as of such date, calculated in accordance with GAAP applied on a consistent basis and without duplication. For the avoidance of doubt, the Sellers’ Expenses, Closing Indebtedness, and the Aggregate Option Payment Amount will not be included as current liabilities in the calculation of Net Working Capital, and the AmerisourceBergen Deposit will not be included as a current asset in the calculation of Net Working Capital.

 

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Net Working Capital Adjustment Amount ” means, as of the Closing Date, (A) if the Net Working Capital at Closing exceeds the Target Net Working Capital, an amount equal to (i) the Net Working Capital at the Closing, minus (ii) the Target Net Working Capital, (B) if the Net Working Capital at Closing is less than the Target Net Working Capital, an amount equal to (i) the Net Working Capital at the Closing, minus (ii) the Target Net Working Capital, or (C) if the Net Working Capital at Closing is equal to the Target Net Working Capital, an amount equal to $0.00.

 

Neutral Accountant ” has the meaning set forth in Section 1.04(c) .

 

Notice of Claim ” has the meaning set forth in Section 8.05(a) .

 

Objection Notice ” has the meaning set forth in Section 1.05(d)(ii) .

 

Option ” means an option to purchase shares of common stock of the Company granted under the Option Plan.

 

Option Cancellation Agreements ” has the meaning set forth in the recitals.

 

Option Cancellation Amount ” means, with respect to any Optionholder, an amount (subject to all Taxes required to be withheld therefrom and without interest) equal to the product of (a) the excess, if any, of (i) an amount per Option equal to the quotient of $10,160,572.32 divided by 874,700; over (ii) the exercise price per share of common stock of the Company subject to such Option and (b) the number of shares of common stock of the Company subject to such Options held by such Optionholder immediately prior to the Closing Date .

 

Optionholder ” means the holders of options to purchase common stock of the Company.

 

Option Plan ” means the MedPro Rx, Inc. 2005 Stock Award Plan, dated effective August 5, 2005.

 

Permits ” means all permits, licenses, approvals, consents, waiver, authorizations, registrations, certificates, certificates of need, operating rights, variances and similar rights obtained, or required to be obtained, from Governmental Entities.

 

Permitted Liens ” means (a) statutory Liens for current Taxes, assessments, fees and other charges by Governmental Antities that are not due and payable as of the Closing Date, (b) in the case of the Leased Real Property, zoning, building, or other restrictions, variances, covenants, rights of way, encumbrances, easements and other minor irregularities in title, none of which, individually or in the aggregate, interfere in any material respect with the present use of or occupancy of the affected parcel by the Company, (c) mechanics’, carriers’, workers’, and repairers’ Liens arising or incurred in the ordinary course of business that are not material to the business, operations and financial condition of the Company’s property so encumbered and that are not resulting from a breach, default or violation by the Company of any Contract or Law, and (d) with respect to any third-party license of Proprietary Rights to the Company, any contractual restrictions or limitations set forth on the face of the applicable license agreement.

 

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Person ” means an individual, a partnership, a limited liability company, a corporation, an association, a joint stock company, a trust, a joint venture, an unincorporated organization, any Governmental Entity or any similar entity.

 

Plan ” has the meaning set forth in Section 4.08(l) .

 

Pre-Closing Tax Period ” means any taxable period or portion thereof ending on or before the Closing Date.  In the case of a Straddle Period, the portion of such Straddle Period through the end of the Closing Date shall constitute a Pre-Closing Tax Period

 

Pre-Closing Income Tax Return ” has the meaning set forth in Section 7.01(c) .

 

Pre-Closing Period Tax Return ” has the meaning set forth in Section 7.01(c) .

 

Proceeding ” means any Action, suit, claim, demand, summons, citations or subpoena, audit, hearing, public meeting or inquiry of any kind or nature whatsoever, civil, criminal, administrative, regulatory or otherwise, at law or in equity, whether or not such matter is before a Governmental Entity or any other Person.

 

Prohibited Transaction ” is defined in ERISA Section 406 and Code Section 4975.

 

Pro Rata Share ” has the meaning set forth in Section 1.04(d) .

 

Proprietary Rights ” means all rights or interests, whether as an owner, licensor, licensee or otherwise, along with all income, royalties, damages and payments due or payable at the Closing Date or thereafter, including damages and payments for past, present or future infringements or misappropriations thereof, the right to sue and recover for past infringements or misappropriations thereof and any and all corresponding rights or interests that, now or hereafter, may be secured throughout the world: (a) patents, patent applications, patent disclosures, inventions, industrial designs and models (whether or not patentable and whether or not reduced to practice) and any reissue, continuation, continuation-in-part, division, revision, extension or reexamination thereof, (b) trademarks, service marks, trade dress, logos, trade names, corporate names and domain names, together with all translations, adaptations, derivations, and combinations, including all goodwill associated therewith, (c) copyrights, registered or unregistered, database rights and works of authorship, (d) mask works, (e) rights of publicity and privacy relating to the use of names, likenesses, voices, signatures and biographical information of natural persons, (f) all registrations, applications and renewals for any of the foregoing, (g) trade secrets and Confidential Information (including ideas, formulae, compositions, know-how, manufacturing and production processes and techniques, research and development information, drawings, specifications, designs, plans, proposals, technical data, financial, business and marketing information and plans, and customer and supplier lists, pricing and cost information, and related information), (h) software, all rights with respect to computer software and software systems (including data, data compilations, codes, annotations, databases and related documentation), (i) websites, including public and non-public websites, intranet sites and FTP sites, (j) other proprietary rights, (k) rights of personality used in the Business, (l) licenses, license agreements, coexistence agreements, consent agreements, agreements to assign or other agreements to or from third parties regarding the foregoing, (m) all copies and tangible embodiments of the foregoing (in whatever form or medium), in each case including the items

 

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set forth on Schedule 4.10(a) , (n) all internet domain names, telephone numbers, and telephone directory listing, and (o) all moral rights or rights of attribution or integrity in any of the foregoing.

 

Purchase Price ” has the meaning set forth in Section 1.02(a) .

 

Purchase Price Allocation Schedule ” has the meaning set forth in Section 7.01(i)(iv) .

 

Related Person ” means (A) with respect to an individual: (i) each other member of such individual’s nuclear family, (ii) any Person that is directly or indirectly controlled by such individual or any one or more members of such individual’s nuclear family, (iii) any Person in which members of such individual’s nuclear family hold (individually or in the aggregate) a material interest, and (iv) any Person with respect to which one or more members of such individual’s nuclear family serves as a director, officer, partner, manager, executor, or trustee (or in a similar capacity), and (B) with respect to a Person other than an individual: (i) any Person that directly or indirectly controls, is directly or indirectly controlled by, or is directly or indirectly under common control with, such specified Person, (ii) any Person that holds a material interest in such specified Person, (iii) each Person that serves as a director, officer, partner, manager, executor, or trustee of such specified Person (or in a similar capacity), (iv) any Person in which such specified Person holds a material interest, and (v) any Person with respect to which such specified Person serves as a general partner, manager, or a trustee (or in a similar capacity).

 

Released Claims ” has the meaning set forth in Section 6.06(a) .

 

Released Parties ” has the meaning set forth in Section 6.06(a) .

 

Releasing Parties ” has the meaning set forth in Section 6.06(a) .

 

Relevant Group ” means any affiliated, combined, consolidated, unitary or other group for Tax purposes, including (without limitation) an affiliated group of corporations within the meaning of Section 1504 of the Code.

 

Restricted Area ” has the meaning set forth in Section 6.04(b) .

 

Restricted Party ” has the meaning set forth in Section 6.04(a) .

 

Restricted Period ” has the meaning set forth in Section 6.04(a) .

 

Reversion Pro Rata Share ” means Ronald McFarlane — 33.38%; Nancy McFarlane — 51%, the Ronald McFarlane 2011 Irrevocable Trust — 15.62%, and Mark Poteet — 0%.

 

Review Period ” has the meaning set forth in Section 1.04(a) .

 

Second Calculation Period ” has the meaning set forth in Section1.05(c) .

 

Section 338(h)(10) Election ” is defined in Section 7.01(h) .

 

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Seller Indemnitees ” has the meaning set forth in Section 8.03(a) .

 

Seller Warranty Losses ” has the meaning set forth in Section 8.03(b) .

 

Sellers’ Expenses ” means (A) all change of control, termination, severance, bonus or retention obligations which are triggered by the transactions contemplated by this Agreement (excluding the Aggregate Option Cancellation Amount and the Tenure/Retention Bonuses) including, without limitation, all such amounts due and owing (or that become due and owing) to Trestle Capital Partners, and (B) all fees and expenses payable to any legal counsel, accountants or other advisors of any Selling Party or the Company in connection with the transactions contemplated by this Agreement, in each case to the extent unpaid as of the Closing Date.

 

Sellers’ Representative ” has the meaning set forth in Section 9.01 .

 

Selling Parties ” mean each of the Stockholders and each of the Optionholders.

 

Service Liability Claims ” means all Liabilities of the Company resulting from or under (i) any warranty made or allegedly made by the Company prior to the Closing Date with respect to any product it distributes or uses or any services it renders (“ Business Products ”), (ii) any alleged defect in, non-performance or deficiency of any nature in any Business Product sold or provided (as applicable) prior to the Closing Date, or (iii) any injury to person or property caused or alleged to be caused to any degree by any Business Product sold or provided (as applicable) prior to the Closing Date.

 

Shares ” has the meaning set forth in the recitals.

 

Standard Representations ” means all representations and warranties contained in this Agreement, any Schedule, the Buyer’s Secretary Certificate, or the Company’s Secretary Certificate (other than the Fundamental Representations and the Extended Exposure Representations).

 

Stockholder ” and “ Stockholders ” each have the meaning set forth in the preamble.

 

Straddle Period ” has the meaning set forth in Section 7.01(b) .

 

Subsidiaries ” means with respect to any Person, any corporation, partnership, association or other business entity of which (i) if a corporation, a majority of the total voting power of shares of stock entitled (without regard to the occurrence of any contingency) to vote in the election of directors is at the time owned or controlled, directly or indirectly, by that Person or one or more of the other Subsidiaries of that Person or a combination thereof, or (ii) if a partnership, association or other business entity, a majority of the partnership or other similar ownership interest thereof is at the time owned or controlled, directly or indirectly, by such Person or one or more Subsidiaries of that Person or a combination thereof.  For purposes hereof, a Person or Persons shall be deemed to have a majority ownership interest in a partnership, association or other business entity if such Person or Persons shall be allocated a majority of partnership, association or other business entity gains or losses or shall be or control the managing director or general partner of such partnership, association or other business entity.

 

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Systems ” has the meaning set forth in Section 4.11(a) .

 

Target Net Working Capital ” means $8,800,000.

 

Tax ” (and, with correlative meaning, “ Taxes ,” “ Taxable ” and “ Taxing ”) means (i) any federal, state, local or foreign income, gross receipts, franchise, estimated, alternative minimum, add-on minimum, sales, use, transfer, registration, value added, excise, natural resources, severance, stamp, occupation, premium, windfall profits, environmental (including under Section 59A of the Code), customs, duty, real property, real property gains, personal property, capital stock, social security, unemployment, disability, payroll, license, employee or other withholding or other tax assessment, fees, levy or other charge of any kind whatever imposed by any Governmental Entity, whether disputed or not, including any interest, penalties or additions to tax or additional amounts in respect of the foregoing, (ii) any Liability for or in respect of the payment of any amount of a type described in clause (i) of this definition arising as a result of being or having been a member of a Relevant Group and (iii) any Liability for or in respect of the payment of any amount of a type described in clause (i) or (ii) of this definition as a transferee or successor, by Contract or otherwise.

 

Tax Gross Up Amount ” has the meaning set forth in Section 7.01(i)(ii) .

 

Tax Gross Up Cap ” has the meaning set forth in Section 7.01(i)(ii) .

 

Tax Proceeding ” has the meaning set forth in Section 7.01(j)(ii) .

 

Tax Return ” means any return, declaration, report, claim for refund, information return or other document (including any related or supporting schedules, statements or information) filed or required to be filed in connection with the determination, assessment or collection of Taxes or the administration of any Law relating to any Taxes.

 

Taxing Authority ” means any Governmental Entity having or purporting to exercise jurisdiction with respect to any Tax.

 

Tenure/Retention Bonus Pool Members ” means Andrew Clark, Douglas Fowler, Victoria Starr, Anne Lowish, and Bradley Andrews.

 

Tenure/Retention Bonus Award Agreements ” means the Tenure/Retention Bonus Award Agreements between the Company and each of the Tenure/Retention Bonus Pool Members dated effective as of the Closing Date.

 

Tenure/Retention Bonuses ” means the bonuses payable to the Tenure/Retention Bonus Pool Members pursuant to the terms of the Tenure/Retention Bonus Award Agreements.

 

Third Party Claim ” has the meanings set forth in Section 7.01(j)  and Section 8.05(a) .

 

Third Party Defense ” has the meaning set forth in Section 8.05(b) .

 

Trust Stockholder ” means Ronald McFarlane 2011 Irrevocable Family Trust.

 

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Unvested Option ” has the meaning set forth in Section 1.03 .

 

10.02                  Interpretation.

 

(a)                                  For purposes of this Agreement, (a) the words “include,” “includes” and “including” shall be deemed to be followed by the words “without limitation”, (b) the word “or” is not exclusive, and (c) the words “herein,” “hereof,” “hereby,” “hereto” and “hereunder” refer to this Agreement as a whole.

 

(b)                                  Unless the context otherwise requires, references herein:

 

(i)                                      to the singular includes the plural and vice versa;

 

(ii)                                   to any Person includes such Person’s successors and assigns, if applicable, but only if such successors and assigns are permitted by this Agreement, and reference to a Person in a particular capacity excludes such Person in any other capacity.

 

(iii)                                to a gender includes the other gender;

 

(iv)                               to a “copy” or “copies” of any document, instrument, or agreement means a copy or copies that are complete and correct;

 

(v)                                  to all accounting terms will be interpreted, and all accounting determinations under this Agreement will be made, in accordance with GAAP;

 

(vi)                               to Articles, Sections, schedules and exhibits mean the Articles and Sections of, and schedules and exhibits attached to, this Agreement;

 

(vii)                            to an agreement, instrument or other document means such agreement, instrument or other document as amended, supplemented and modified from time to time to the extent permitted by the provisions thereof;

 

(viii)                         to a Law means such Law as amended from time to time and includes any successor legislation thereto and any regulations promulgated thereunder; and

 

(ix)                               to any section or other provision of any Law means that provision of such Law as from time to time in effect, including any amendment, modification, codification, replacement, or reenactment of such section or other provision;

 

(c)                                   The parties intend that each representation, warranty and covenant contained herein shall have independent significance.  If any party has breached any representation, warranty or covenant contained herein in any respect, the fact that there exists another representation, warranty or covenant relating to the same subject matter (regardless of the relative levels of specificity) that such party has not breached shall not detract from or mitigate the fact that such party is in breach of the first representation, warranty or covenant.

 

(d)                                  This Agreement was negotiated by the parties with the benefit of legal representation, and any rule of construction or interpretation otherwise requiring this Agreement

 

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to be construed or interpreted against any party as having been drafted by it will not apply to any construction or interpretation of this Agreement.  The Schedules referred to herein shall be construed with, and as an integral part of, this Agreement to the same extent as if they were set forth verbatim herein.

 

(e)                                   The headings and captions contained in this Agreement are for convenience of reference only, shall not be deemed to be part of this Agreement, and shall not be referred to in connection with the construction or interpretation of this Agreement.

 

ARTICLE XI.
MISCELLANEOUS

 

11.01                  Amendment and Waiver.

 

This Agreement may be amended, or any provision of this Agreement may be waived; provided , that any such amendment or waiver shall be binding upon the Company or the Stockholders only if set forth in a writing executed by Sellers’ Representative and referring specifically to the provision alleged to have been amended or waived, and any such amendment or waiver shall be binding upon Buyer only if set forth in a writing executed by Buyer and referring specifically to the provision alleged to have been amended or waived.  No course of dealing between or among the parties shall be deemed effective to modify, amend or discharge any part of this Agreement or any rights or obligations of any party under or by reason of this Agreement and a waiver of any provision by any party on one occasion shall not be deemed to be a waiver of the same or any other breach on a future occasion.

 

11.02                  Notices.

 

All notices, demands and other communications to be given or delivered under or by reason of the provisions of this Agreement shall be in writing and shall be deemed to have been given (i) when personally delivered, sent by telecopy or sent by reputable overnight express courier (charges prepaid), or (ii) three days following mailing by certified or registered mail, postage prepaid and return receipt requested.  Unless another address is specified in writing, notices, demands and communications to any Stockholder and Buyer shall be sent to the addresses indicated below:

 

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Notices to the Stockholders :

 

Ronald McFarlane

3624 Williamsborough Court

Raleigh, NC 27609

 

Nancy McFarlane

3624 Williamsborough Court

Raleigh, NC 27609

 

Ronald McFarlane 2011 Irrevocable Family Trust

7005 Cedar Bend Court

Raleigh, NC 27612

Attn: David Shipp, Trustee

 

Mark Poteet

732 Springfield Beach Road

Kinsale, VA 22488

 

with a copy to:

(which shall not constitute notice to the Stockholders)

 

Williams Mullen

301 Fayetteville Street, Suite 1700

Raleigh, NC 27601

(PO Box 1000, Raleigh, NC 27602)

Fax No. (919) 981-4300

Attn: David F. Paulson, Jr.

 

Notice to Sellers’ Representative :

 

Ronald McFarlane

3624 Williamsborough Court

Raleigh, NC 27609

 

Notices to Buyer :

 

Diplomat Specialty Pharmacy, Inc.

4100 South Saginaw

Flint, Michigan 48507

Fax:

Attn: Phil Hagerman, Sean Whelan and Ryan Ruzziconi

 

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with a copy to:

(which shall not constitute notice to Buyer):

 

Honigman Miller Schwartz and Cohn LLP

2290 First National Building

660 Woodward Avenue

Detroit, Michigan 48226

Fax Number: (313) 465-7393

Attn: Michael D. DuBay

 

11.03                  Expenses.

 

Except as otherwise provided in this Agreement or the other documents to be delivered pursuant to this Agreement, (i) Buyer will bear its respective fees and expenses incurred in connection with the preparation, negotiation, execution, and performance of this Agreement and the consummation and performance of the transactions contemplated hereunder, including all fees and expenses of its advisors and representatives, and (ii) the Stockholders, jointly and severally, will bear the respective fees and expenses incurred by the Company and any Stockholder in connection with the preparation, negotiation, execution, and performance of this Agreement and the consummation and performance of the transactions contemplated hereunder, including the Sellers’ Expenses and all fees and expenses of its advisors and representatives.

 

11.04                  Assignment and Successors.

 

(a)                                  This Agreement and all of the provisions hereof shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns, except that neither this Agreement nor any of the rights, interests or obligations hereunder may be assigned or delegated by any Stockholder without the prior written consent of Buyer.  Any purported assignment of rights or delegation of obligations in violation of this Section 11.04 will be void.

 

(b)                                  Buyer may (at any time prior to the Closing), in its sole discretion, assign in whole or in part its rights and obligations pursuant to this Agreement to one or more of its Affiliates, and Buyer may, in its sole discretion, direct the Stockholders to convey the Shares, in whole or in part, to one or more of its Affiliates.  Buyer may assign this Agreement and its rights and obligations hereunder, including its rights and obligations under any document executed in connection herewith, in whole or in part, in connection with a merger or consolidation involving Buyer or in connection with a sale of any limited liability company interests or assets of Buyer or its Affiliates or other disposition of all or any portion of the Business.  Buyer may assign any and all of its rights pursuant to this Agreement, including its rights to indemnification, to any of its lenders as collateral security.  No assignment shall have the effect of releasing the Buyer from any obligation hereunder.

 

11.05                  No Waiver.

 

Neither any failure nor any delay by any party in exercising any right, power, or privilege under this Agreement or any of the documents referred to in this Agreement will operate as a

 

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waiver of such right, power, or privilege, and no single or partial exercise of any such right, power, or privilege will preclude any other or further exercise of such right, power, or privilege or the exercise of any other right, power, or privilege.  To the maximum extent permitted by applicable Law, (i) no claim or right arising out of this Agreement or any of the documents referred to in this Agreement can be waived by a party, in whole or in part, unless made in a writing signed by such party, (ii) a waiver given by a party will only be applicable to the specific instance for which it is given, and (iii) no notice to or demand on a party will (x) waive or otherwise affect any obligation of that party or (y) affect the right of the party giving such notice or demand to take further action without notice or demand as provided in this Agreement or the documents referred to in this Agreement.

 

11.06                  Severability.

 

Whenever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement or the application of any such provision to any Person or circumstance shall be held to be prohibited by or invalid, illegal or unenforceable under applicable law in any respect by a court of competent jurisdiction, such provision shall be ineffective only to the extent of such prohibition or invalidity, illegality or unenforceability, without invalidating the remainder of such provision or the remaining provisions of this Agreement.  Furthermore, in lieu of such illegal, invalid or unenforceable provision, there shall be added automatically as a part of this Agreement a legal, valid and enforceable provision as similar in terms to such illegal, invalid, or unenforceable provision as may be possible.

 

11.07                  Further Assurances.

 

The parties will (i) execute and deliver to each other such other documents, and (ii) do such other acts and things as a party may reasonably request for the purpose of carrying out the intent of this Agreement, the transactions contemplated hereunder, and the documents to be delivered pursuant to this Agreement.

 

11.08                  Entire Agreement.

 

This Agreement and the agreements and documents referred to herein contain the entire agreement and understanding between the parties hereto with respect to the subject matter hereof and supersede all prior agreements and understandings, whether written or oral, relating to such subject matter in any way (including, without limitation, the letter of intent, dated as of March 27, 2014, by and among Diplomat Pharmacy, Inc., the Company and the Stockholders).

 

11.09                  No Referrals.

 

Nothing in this Agreement shall be construed to require the Company, the Selling Parties or Buyer or their respective Affiliates to make referrals of patients to one another or any related Person as a result of, or in exchange for, this Agreement or any document executed in connection herewith.  No payment to be made under this Agreement or any document executed in connection herewith shall be in return for the referral of patients to, or in return for the arranging for, ordering, purchasing or leasing of products or services from any of the parties, or from any

 

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related Person thereof, in violation of applicable Law, including the Anti-Kickback Statute (42 U.S.C. § 1320a-7b).

 

11.10                  Remedies Cumulative.

 

Except as set forth below and as otherwise expressly set forth in this Agreement, the rights and remedies of the parties are cumulative (and not alternative) and are in addition to any other rights and remedies that the parties might have at Law or in equity (including, without limitation, claims for breach of contract, willful misconduct, fraud and misrepresentation, negligent misrepresentation, federal and state securities laws, deceptive practice acts, tort, federal and state statutory claims, and any other available remedies).

 

11.11                  Counterparts; Electronic Signatures.

 

(a)                                  This Agreement and other documents to be delivered pursuant to this Agreement may be executed in one or more counterparts, each of which will be deemed to be an original copy and all of which, when taken together, will be deemed to constitute one and the same agreement or document, and will be effective when counterparts have been signed by each of the parties and delivered to the other parties.

 

(b)                                  A manual signature on this Agreement or other documents to be delivered pursuant to this Agreement or an image of which shall have been transmitted electronically, will constitute an original signature for all purposes.  The delivery of copies of this Agreement or other documents to be delivered pursuant to this Agreement, including executed signature pages where required, by electronic transmission will constitute effective delivery of this Agreement or such other document for all purposes.

 

11.12                  Governing Law.

 

The Law of the State of Delaware shall govern all questions concerning the construction, validity, interpretation and enforceability of this Agreement and the exhibits and schedules attached hereto, and the performance of the obligations imposed by this Agreement, without giving effect to any choice of law or conflict of law rules or provisions (whether of the State of Delaware or any other jurisdiction) that would cause the application of the Laws of any jurisdiction other than the State of Delaware.

 

11.13                  Waiver of Jury Trial.

 

EACH PARTY HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE ACTIONS OF SUCH PARTY IN THE NEGOTIATION, ADMINISTRATION, PERFORMANCE AND ENFORCEMENT HEREOF.

 

11.14                  No Third Party Beneficiaries.

 

Other than the Indemnitees and the parties and their permitted assigns, no Person will have any legal or equitable right, remedy, or claim under or with respect to this Agreement.  This

 

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Agreement may be amended or terminated, and any provision of this Agreement may be waived, without the consent of any Person who is not a party to the Agreement.

 

11.15                  Schedules.

 

The representations and warranties contained in ARTICLE III , ARTICLE IV and ARTICLE V are qualified by reference to the Disclosure Schedules.  The Parties agree that the Disclosure Schedules are not intended to constitute, and shall not be construed as constituting, representations or warranties of the Company, the Stockholders or the Buyer except as and to the extent expressly provided in this Agreement.  Each party acknowledges that (a) the Disclosure Schedules may include items or information that the other parties are not required to disclose under this Agreement and (b) inclusion of information in the Disclosure Schedules shall not be construed as an admission that such information is material to the Company or the Buyer.  The parties acknowledge that (i) headings have been inserted on the individual Schedules included in the Disclosure Schedules for the convenience of reference only and shall not affect the construction or interpretation of any of the provisions of the Agreement or the Disclosure Schedules and (ii) information contained in various schedules contained in the Disclosure Schedules or Sections and subsections of the Schedules contained in the Disclosure Schedules may be applicable to other Schedules or Sections and subsections, to the extent that the applicability of such matter, document or item to such other Schedules or Sections and subsections is readily apparent on its face .  Without limiting the generality of the foregoing, the mere listing (or inclusion of a copy) of a document or other item shall not be deemed adequate to disclose an exception to a representation or warranty made herein (unless the representation or warranty has to do with the existence of the document or other item itself).

 

11.16                  Post-Closing Representation of the Stockholders .

 

In any dispute or proceeding arising under or in connection with this Agreement or any other document entered into in connection herewith following the Closing, the Sellers’ Representative or any Stockholder will have the right, at its election, to retain Williams, Mullen, Clark & Dobbins, P.C. or its successor (the “ Law Firm ”) to represent it in such matter.  Buyer, on behalf of itself and its Affiliates, hereby waives any actual or alleged conflict of interest arising from such representation by the Law Firm and consent to any such representation in any such matter.

 

 (signature pages follow)

 

82



 

IN WITNESS WHEREOF, the parties have caused this Stock Purchase Agreement to be executed as of the date first written above.

 

 

 

BUYER:

 

 

 

DIPLOMAT PHARMACY, INC.

 

 

 

By:

/s/ Philip Hagerman

 

Name:

Philip Hagerman

 

Title:

Chief Executive Officer

 

 

 

 

 

STOCKHOLDERS:

 

 

 

 

 

By:

/s/ Nancy McFarlane

 

 

Nancy McFarlane

 

 

 

 

 

 

 

By:

/s/ Ronald McFarlane

 

 

Ronald McFarlane

 

 

 

Ronald McFarlane 2011 Irrevocable Family Trust

 

 

 

By:

/s/ David Shipp

 

Name:

David Shipp

 

Title:

Trustee

 

 

 

 

 

By:

/s/ Mark Poteet

 

 

Mark Poteet

 

 

 

 

 

COMPANY:

 

 

 

MEDPRO RX, INC.

 

 

 

 

 

By:

/s/ Nancy McFarlane

 

Name:

Nancy McFarlane

 

Title:

President

 




Exhibit 3.3

 

State of Michigan
Department of Licensing and Regulatory Affairs
Corporations Division
Filed Mar 31 2014

 

SECOND AMENDED AND RESTATED ARTICLES OF INCORPORATION

 

OF DIPLOMAT PHARMACY, INC.

 

a Michigan corporation

 

Pursuant to the provisions of Act 284, Public Acts of 1972, the undersigned execute the following Articles:

 

FIRST: The present name of the corporation is Diplomat Pharmacy, Inc.

 

SECOND:  The identification number assigned by the Bureau is: 099705.

 

THIRD: The former name(s) of the corporation are:  none.

 

FOURTH:  The original Articles of Incorporation of the corporation were filed with the Secretary of State of Michigan on March 26, 1975.

 

FIFTH:  The following Restated Articles of Incorporation supersede the Articles of Incorporation as amended and shall be the Articles of Incorporation for the corporation:

 

ARTICLE I

 

The name of the corporation is Diplomat Pharmacy, Inc.

 

ARTICLE II

 

The address of the registered office of the corporation in the State of Michigan is 4100 South Saginaw Street, Flint, Michigan 48507, and the name of the registered agent at such address is Philip R. Hagerman.

 

ARTICLE III

 

The purpose of the corporation is to engage in any activity within the purposes for which a corporation may be formed under the Business Corporation Act of the State of Michigan.

 

ARTICLE IV

 

A.                                     Classes of Stock .  The corporation is authorized to issue two classes of stock to be designated, respectively, “ Common Stock ” and “ Preferred Stock .”  The total number of shares which the corporation is authorized to issue is one hundred one thousand four hundred sixty four (101,464) shares: one hundred thousand seven hundred thirty-two (100,732) shall be Common Stock, $1.00 par value, consisting of five thousand (5,000) shares of Class A Voting Common Stock, ninety-five thousand (95,000) shares of Class B Nonvoting Common Stock and seven hundred thirty-two (732) shares of Class C Voting Common Stock, and seven hundred

 



 

thirty-two (732) shall be Preferred Stock, $.001 par value, all of which shares shall be designated Series A Preferred Stock (the “ Series A Preferred Stock ”).  Each share of each class of Common Stock shall have equal and identical rights, preferences and limitations, except for voting rights.  The number of authorized shares of Common Stock may be increased or decreased (but not below the number of shares of Common Stock then outstanding) by the affirmative vote of the holders of a majority of the stock of the corporation entitled to vote (voting together as a single class on an as-converted basis) irrespective of the provisions of Section 615 of the Business Corporation Act of the State of Michigan.

 

B.                                     Rights, Preferences and Restrictions of Series A Preferred Stock .  The rights, preferences, privileges, and restrictions granted to and imposed on the Series A Preferred Stock are set forth below in this Article IV(B).

 

1.                                       Dividend Participation .

 

Unless otherwise agreed to, by vote or written consent by the holders of at least two-thirds of the then outstanding shares of Preferred Stock, voting as a single class (the “ Requisite Holders ”), the corporation shall not declare a dividend or other distribution (other than a dividend payable solely in shares of Common Stock) on the Common Stock or any class or series that is convertible into Common Stock whether payable in securities of the corporation or any other persons, evidences of indebtedness issued by the corporation or any other persons, assets (including cash) or options or rights to purchase any assets, securities or evidences of indebtedness, or otherwise, unless in each such case the holders of the Series A Preferred Stock outstanding shall first receive, or simultaneously receive a dividend on each outstanding share of Series A Preferred Stock in an amount at least equal to the product of (A) the dividend payable on each share of such class or series determined, if applicable, as if all shares of such class or series had been converted into Common Stock and (B) the number of shares of Common Stock issuable upon conversion of a share of Series A Preferred Stock, in each case calculated on the record date for determination of holders entitled to receive such dividend.

 

2.                                       Liquidation Preference .

 

(a)                                  Liquidation Preference Amount .  In the event of the voluntary or involuntary liquidation, dissolution or winding up of the corporation or the occurrence of a Liquidation Event (as defined below), the holders of Series A Preferred Stock shall be entitled to receive, out of the assets legally available for distribution, or the consideration received in such transaction prior and in preference to any distribution of any of the assets of the corporation (or the consideration received in such transaction) to the holders of Common Stock by reason of their ownership thereof, an amount per share (“ Liquidation Preference ”) equal to the greater of either (i) the sum of (A) the Original Series A Issue Price and (B) such additional amount to cause such holders to achieve a 15% return (on a pre-tax basis, compounding annually) with respect to their outstanding shares of Series A Preferred Stock from the date of issuance, or (ii) the amount that such holders would receive with respect to their outstanding shares of Series A Preferred Stock if all of their outstanding shares of Series A Preferred Stock had been fully converted into shares of Common Stock immediately prior to such Liquidation Event.  If upon the occurrence of such event, the assets and funds thus distributed among the holders of the Series A Preferred Stock shall be insufficient to permit the payment to such holders of the full

 

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aforesaid preferential amount, then, subject to the rights of series of Preferred Stock that may from time to time come into existence, the entire assets and funds of the corporation legally available for distribution shall be distributed ratably among the holders of the Series A Preferred Stock in proportion to the amount of such stock owned by each such holder.  The “ Original Series A Issue Price ” of the Series A Preferred Stock is $142,320 per share, as adjusted from time to time for stock splits, stock dividends and the like.

 

(b)                                  Distributions After Liquidation Preference .  After payment of the Liquidation Preference, subject to the rights of series of Preferred Stock which may from time to time come into existence, the remaining assets of the corporation available for distribution to stockholders (or the consideration received in such transaction) shall be distributed among the holders of Common Stock pro rata based on the number of shares of Common Stock held by each, and the holders of Series A Preferred Stock shall not be entitled to receive any additional amounts with respect to the Liquidation Event.

 

(c)                                   Liquidation Events.  For purposes of this Section 2, unless otherwise agreed to, by vote or written consent, by the Requisite Holders, a “ Liquidation Event ” shall be deemed to be occasioned by, and to include, a sale, lease, transfer or other disposition (whether by merger or otherwise) of all or substantially all of the assets of the corporation and its subsidiaries taken as a whole, or the sale, lease, transfer or other disposition (whether by merger or otherwise) of one or more subsidiaries of the corporation if substantially all of the assets of the corporation and its subsidiaries taken as a whole are held by such subsidiary or subsidiaries, except where such sale, lease, transfer or other disposition is to a wholly owned subsidiary of the corporation, or a merger, share exchange, acquisition or sale of voting control of the corporation in which the stockholders of the corporation immediately prior to such transaction do not own a majority of the total voting power represented by the equity interests of the surviving or resulting entity or the corporation, as the case may be (or if the surviving or resulting entity or corporation is a wholly-owned subsidiary following such acquisition, its parent), immediately following such transaction.

 

(d)                                  Stockholder Transfer; Effective a Liquidation Event .  No stockholder of the corporation shall enter into any transaction or series of related transactions in which more than a majority of the voting power of the corporation is transferred unless (A) the terms of such transaction or transactions provide that the consideration to be paid to all stockholders of the corporation is to be allocated in accordance with the priorities set forth in this Section 2, or (B) the Requisite Holders agree thereto in writing.  The corporation shall not have the power to effect a Liquidation Event unless the agreement or plan of merger or consolidation for such transaction (the “ Merger Agreement ”) provides that the consideration payable to the stockholders of the corporation shall be allocated among the holders of capital stock of the corporation in accordance with the priorities set forth in this Section 2, or (B) the Requisite Holders agree thereto in writing.

 

(e)                                   Valuation .  In any of such events, if the consideration received by or distribution made by the corporation is other than cash, its value will be deemed its fair market value as determined in good faith by the Board of Directors, except that the fair market value of any securities not otherwise valued in the transaction constituting the deemed liquidation shall be valued as follows:

 

3



 

(i)                                      Securities not subject to investment letter or other similar restrictions on free marketability:

 

(A)                                If traded on a securities exchange, the value shall be deemed to be the average of the closing prices of the securities on such exchange or quotation system over the twenty (20) business day period ending three (3) business days prior to the date of distribution;

 

(B)                                If actively traded over-the-counter, the value shall be deemed to be the average of the closing bid or sale prices (whichever is applicable) over the twenty (20) business day period ending three (3) business days prior to the date of distribution; and

 

(C)                                If there is no active public market, the value shall be the fair market value thereof as determined in good faith by the Board of Directors.

 

(ii)                                   The valuation of securities subject to investment letter or other restrictions on free marketability (other than restrictions arising solely by virtue of a stockholder’s status as an affiliate or former affiliate) shall reflect an appropriate discount from the market value determined as above in Section 2(e)(i) to reflect the approximate fair market value thereof, as determined in good faith by the Board of Directors.  Notwithstanding the foregoing, no discount from market value shall be taken where (i) the securities are actively traded, (ii) the issuer of the securities is eligible to register such securities on a Form S-3 and (iii) the issuer of the securities agrees to register such securities on a Form S-3 (subject to customary terms and conditions for such a registration).

 

(f)                                    Deferred Consideration.  In the event of a Liquidation Event, if any portion of the consideration payable to the stockholders of the corporation is placed into escrow, and/or is payable to the stockholders of the corporation subject to contingencies, the Merger Agreement shall provide that the portion of such consideration that is not placed into escrow and not subject to any contingencies (the “ Initial Consideration ”) shall be allocated among the stockholders of the corporation in accordance with Sections 2(a) and 2(b) above as if the Initial Consideration were the only consideration payable in connection with such Liquidation Event; provided that, for the sake of clarity, if the holders of the Series A Preferred Stock shall receive the consideration contemplated by Section 2(a)(ii) above in connection with such Liquidation Event, there shall be deducted from the amount that would otherwise be payable to each holder of Series A Preferred Stock pursuant to Section 2(a)(ii) an amount equal to such holder’s pro rata share (based on the number of shares of Common Stock held by such stockholder, for this purpose treating all shares of Series A Preferred Stock as if they had been converted to shares of Common Stock) of any portion of the consideration payable to the stockholders of the corporation that is placed into escrow and/or is payable to the stockholders of the corporation subject to contingencies.  Any additional consideration which becomes payable to the stockholders of the corporation upon release from escrow or satisfaction of contingencies shall be allocated among the stockholders of the corporation in accordance with Sections 2(a) and 2(b) above after taking into account the previous payment of the Initial Consideration as part of the same transaction.

 

(g)                                   Notice.  The corporation will give each holder of record of Preferred Stock written notice of such impending transaction not later than twenty (20) days prior to the

 

4



 

stockholders’ meeting called to approve such transaction, or twenty (20) days prior to the closing of such transaction, whichever is earlier, and shall also notify such holders in writing of the final approval of such transaction.  The first of such notices will describe the material terms and conditions of the impending transaction and the provisions of this Section 2, and the corporation will thereafter give such holders prompt notice of any material changes.  The transaction will in no event take place sooner than twenty (20) days after the corporation has given the first notice provided for herein or sooner than ten (10) days after the corporation has given notice of any material changes provided for herein.  The time periods referred to in this Section 2(g) may be shortened upon the written consent of the Requisite Holders.

 

3.                                       Conversion .  The holders of the Series A Preferred Stock have conversion rights as follows (the “ Conversion Rights ”):

 

(a)                                  Right to Convert .  Each share of Series A Preferred Stock is convertible, at the option of the holder thereof, at any time after the date of issuance of such share, by surrender of such share of Series A Preferred Stock at the office of the corporation or any transfer agent for such stock, into such number of fully paid and nonassessable shares of Class C Voting Common Stock as is determined by dividing (i) the Original Series A Issue Price plus any declared but unpaid dividends by (ii) the Series A Conversion Price (as herein defined) applicable to such share, determined as hereafter provided, in effect on the date the certificate is surrendered for conversion (the “ Series A Conversion Rate ”).  The initial conversion price (“ Series A Conversion Price ”) per share for shares of Series A Preferred Stock shall be the Original Series A Issue Price; provided, however, that the Series A Conversion Price for the Series A Preferred Stock shall be subject to adjustment as set forth in Section 3(d).

 

(b)                                  Automatic Conversion .  Each share of Series A Preferred Stock shall automatically be converted into shares of Class C Voting Common Stock based on the Series A Conversion Rate at the time in effect for such share without any action by the holders thereof immediately upon the earlier of (i) immediately prior to the closing of the corporation’s sale of its Common Stock in a firmly underwritten public offering of the Common Stock pursuant to a registration statement filed with the Securities and Exchange Commission, and declared effective under the Securities Act of 1933, as amended (the “ Securities Act ”), and not subsequently withdrawn, in which the gross cash proceeds to the corporation (before underwriting discounts, commissions and fees) are at least Thirty-Five Million Dollars ($35,000,000) (a “ Qualified IPO ”) or (ii) the date specified by written consent or vote of the Requisite Holders (provided such specified date is on or after the date of obtaining such consent or vote).  The corporation shall provide at least ten days written notice to each holder of Series A Preferred Stock of the corporation’s intention to effect a transaction which would give rise to an automatic conversion pursuant to clause (i) above and the holders of Series A Preferred Stock effecting an automatic conversion pursuant to clause (ii) above shall, within ten (10) business days following such an automatic conversion pursuant to clause (ii) above provide written notice to the corporation at its principal corporate office of the occurrence of such automatic conversion pursuant to clause (ii) above.  Within three business days of the occurrence of an automatic conversion pursuant to clause (i) above, the corporation shall provide written notice to all record holders of Series A Preferred Stock of the occurrence of such conversion.  Notices shall be given by the corporation by reputable overnight delivery service, for next business day delivery, to the address of each holder of Series A Preferred Stock as shown in the stock record books of the corporation.  Such

 

5



 

notice shall state the date on which the automatic conversion occurred and shall call upon the holders of Series A Preferred Stock to deliver to the corporation the certificates representing shares of Series A Preferred Stock so converted (or an affidavit of loss, mutilation or destruction together with an indemnity to the corporation for any loss in connection with such loss, mutilation or destruction).  In the event of such an automatic conversion and upon receipt by the corporation of certificates representing shares of Series A Preferred Stock so surrendered (or such affidavit and indemnity as the case may be), the corporation shall cancel such certificates so surrendered (it being understood that a conversion shall be deemed to have occurred whether or not so surrendered) and forthwith following such receipt by it issue to the transmitting holder certificates for shares of Class C Voting Common Stock issued as a result thereof, dated the date of such automatic conversion, and such holders shall be deemed for all purposes to be the holders of such Class C Voting Common Stock as of the date of such conversion; provided, however, that on the date of such automatic conversion, the outstanding shares of Series A Preferred Stock shall be converted automatically without further action by the holders of such shares whether or not the certificates representing such shares are surrendered to the corporation.  The corporation shall not be obligated to issue certificates evidencing shares of Class C Voting Common Stock in respect of specific shares of Series A Preferred Stock until the corporation has either received the certificate in respect of such shares of Series A Preferred Stock or such affidavit and indemnity with respect to the certificate for such shares of Series A Preferred Stock, in each case as aforesaid.  A holder of Series A Preferred Stock may, at its option, tender certificates for Series A Preferred Stock for conversion (or such an affidavit and indemnity) in advance of such automatic conversion, such tender to be conditioned upon the closing of the transaction giving rise to such automatic conversion, in which event the person(s) entitled to so receive the Class C Voting Common Stock upon conversion of the Series A Preferred Stock shall not be deemed to have converted such Series A Preferred Stock until immediately prior to the closing of such transaction.

 

(c)                                   Mechanics of Conversion .  In order to effect a conversion at its option pursuant to subsection (a) above, a holder of Series A Preferred Stock shall surrender the certificate or certificates therefor, duly endorsed (or provide notice of loss, mutilation or destruction thereof and indemnify the corporation for any loss by it in connection with such loss, mutilation or destruction), at the principal office of the corporation, and together therewith give written notice of the election to convert the same and shall state therein the name or names in which the certificate or certificates for shares of Class C Voting Common Stock are to be issued. The corporation shall, as soon as practicable thereafter, issue and deliver at such office to such holder of Series A Preferred Stock, or to the nominee or nominees of such holder, a certificate or certificates for the number of shares of Class C Voting Common Stock to which such holder shall be entitled as aforesaid.  Such conversion shall be deemed to have been made immediately prior to the close of business on the date of such surrender of the shares of Series A Preferred Stock to be converted (or such affidavit and indemnity of loss, mutilation or destruction as the case may be), and the person or persons entitled to receive the shares of Class C Voting Common Stock issuable upon such conversion shall be treated for all purposes as the record holder or holders of such shares of Class C Voting Common Stock as of such date.

 

(d)                                  Conversion Price Adjustments of Series A Preferred Stock for Certain Dilutive Issuances, Splits and Combinations .  The Series A Conversion Price shall be subject to adjustment from time to time as follows:

 

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(i)                                      (A)                                If the corporation shall issue or be deemed to have issued, after the date upon which any shares of Series A Preferred Stock were first issued (the “ Series A Purchase Date ” with respect to such shares), any Additional Stock (as defined below) without consideration or for a consideration per share less than the Series A Preferred Conversion Price in effect immediately prior to the issuance of such Additional Stock, the Series A Preferred Conversion Price in effect immediately prior to each such issuance shall automatically (except as otherwise provided in this subsection (i)) be reduced (in order to increase the number of shares of Class C Voting Common Stock into which each share of Series A Preferred Stock is convertible) to a price per share determined by multiplying the Series A Preferred Conversion Price by a fraction, the numerator of which shall be the number of shares of Common Stock outstanding immediately prior to such issuance plus the number of shares of Common Stock that the aggregate consideration received by the corporation for such issuance, if any, would purchase at a price per share equal to the Series A Preferred Conversion Price; and the denominator of which shall be the number of shares of Common Stock outstanding immediately prior to such issuance plus the number of shares of such Additional Stock so issued.  For the purposes of the above calculation, the number of shares of Common Stock outstanding immediately prior to such issue shall be calculated on a fully diluted basis, as if all shares of Series A Preferred Stock and all other convertible securities had been fully converted into shares of Common Stock immediately prior to such issuance and any outstanding warrants, options or other rights for the purchase of shares of stock or convertible securities had been fully exercised immediately prior to such issuance (and the resulting securities fully converted into shares of Common Stock, if so convertible) as of such date, but not including in such calculation any additional shares of Class C Voting Common Stock issuable with respect to shares of Series A Preferred Stock, convertible securities, or outstanding options, warrants or other rights for the purchase of shares of stock or convertible securities, solely as a result of the adjustment of the Series A Preferred Conversion Price (or other conversion ratios) resulting from the issuance of Additional Stock causing such adjustment.

 

(B)                                No adjustment of the Series A Preferred Conversion Price shall be made in an amount less than one cent per share, provided that any adjustments which are not required to be made by reason of this sentence shall be carried forward and shall be taken into account in any subsequent adjustment.  Except to the limited extent provided for in subsections (E)(3) and (E)(4), no adjustment of the Series A Preferred Conversion Price pursuant to this Section 3(d)(i) shall have the effect of increasing such Series A Preferred Conversion Price above the Series A Preferred Conversion Price in effect immediately prior to such adjustment.

 

(C)                                In the case of the issuance of Common Stock for cash, the consideration shall be deemed to be the amount of cash paid therefor before deducting any reasonable discounts, commissions or other expenses allowed, paid or incurred by the corporation for any underwriting or otherwise in connection with the issuance and sale thereof.

 

(D)                                In the case of the issuance of the Common Stock for a consideration in whole or in part other than cash, the consideration other than cash shall be deemed to be the fair value thereof as determined in good faith by the Board of Directors, irrespective of any accounting treatment.

 

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(E)                                 In the case of the issuance of options to purchase or rights to subscribe for Common Stock, securities by their terms convertible into or exchangeable for Common Stock or options to purchase or rights to subscribe for such convertible or exchangeable securities, the following provisions shall apply for all purposes of this Section 3(d)(i) and Section 3(d)(ii):

 

(1)                                  The aggregate maximum number of shares of Common Stock deliverable upon exercise (assuming the satisfaction of any conditions to exercisability, including without limitation, the passage of time, but without taking into account potential antidilution adjustments) of such options to purchase or rights to subscribe for Common Stock shall be deemed to have been issued at the time such options or rights were issued and for a consideration equal to the consideration (determined in the manner provided in Sections 3(d)(i)(C) and 3(d)(i)(D)), if any, received by the corporation upon the issuance of such options or rights plus the minimum exercise price provided in such options or rights (without taking into account potential antidilution adjustments) for the Common Stock covered thereby.

 

(2)                                  The aggregate maximum number of shares of Common Stock deliverable upon conversion of or in exchange for (assuming the satisfaction of any conditions to convertibility or exchangeability, including, without limitation, the passage of time, but without taking into account potential antidilution adjustments) any such convertible or exchangeable securities, or upon the exercise of options to purchase or rights to subscribe for such convertible or exchangeable securities and subsequent conversion or exchange thereof, shall be deemed to have been issued at the time such securities were issued or such options or rights were issued and for a consideration equal to the consideration, if any, received by the corporation for any such securities and related options or rights (excluding any cash received on account of accrued interest or accrued dividends), plus the minimum additional consideration, if any, to be received by the corporation (without taking into account potential antidilution adjustments) upon the conversion or exchange of such securities or the exercise of any related options or rights (the consideration in each case to be determined in the manner provided in Sections 3(d)(i)(C) and 3(d)(i)(D)).

 

(3)                                  In the event of any change in the number of shares of Common Stock deliverable by, or in the consideration payable to, the corporation upon exercise of such options or rights or upon conversion of or in exchange for such convertible or exchangeable securities, including, but not limited to, a change resulting from the antidilution provisions thereof, the Series A Preferred Conversion Price, to the extent in any way affected by or computed using such options, rights or convertible or exchangeable securities, shall be recomputed to reflect such change, but no further adjustment shall be made for the actual issuance of Common Stock or any payment of such consideration upon the exercise of any such options or rights or the conversion or exchange of such securities.

 

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(4)                                  Upon the expiration of any such options or rights, the termination of any such rights to convert or exchange or the expiration of any options or rights related to such convertible or exchangeable securities, the Series A Preferred Conversion Price, to the extent in any way affected by or computed using such options, rights or convertible or exchangeable securities or options or rights related to such securities, shall be recomputed to reflect the issuance of only the number of shares of Common Stock (and convertible or exchangeable securities which remain in effect) actually issued upon the exercise of such options or rights, upon the conversion or exchange of such securities or upon the exercise of the options or rights related to such securities.

 

(5)                                  The number of shares of Common Stock deemed issued and the consideration deemed paid therefor pursuant to Sections 3(d)(i)(E)(l) and (2) shall be appropriately adjusted to reflect any change, termination or expiration of the type described in either Section 3(d)(i)(E)(3) or (4).

 

(ii)                                   Additional Stock ” shall mean any shares of Common Stock issued (or deemed to have been issued pursuant to Section 3(d)(i)(E)) by the corporation after the Series A Purchase Date other than:

 

(A)                                shares of Class C Voting Common Stock issued upon conversion of the Series A Preferred Stock or as a dividend or distribution on the Series A Preferred Stock;

 

(B)                                shares of Common Stock and/or options or other purchase rights and the shares of Common Stock issued pursuant to such options or other purchase rights issuable or issued to employees, advisors, consultants, directors or advisory board members (other than Jeff Rowe and Phil Hagerman (in their individual capacities) and their respective affiliates) pursuant to one or more plans, agreements or similar arrangements approved by the Board and not to exceed in the aggregate such number of shares that would represent 20% of the fully-diluted capitalization of the corporation as of the date thereof after giving effect to such issuance or deemed issuance;

 

(C)                                shares of Common Stock issued upon the exercise or conversion of warrants or convertible securities outstanding as of the date hereof; or

 

(D)                                shares of Common Stock issued in connection with mergers, acquisitions, strategic transactions, joint ventures, equipment leasing, debt financings and commercial transactions approved by the Board.

 

(iii)                                Stock Splits and Subdivisions .  In the event the corporation should at any time or from time to time after the Series A Purchase Date fix a record date for the effectuation of a split or subdivision of the outstanding shares of Common Stock (without a corresponding split or subdivision of the Series A Preferred Stock) or the determination of holders of Common Stock entitled to receive a dividend or other distribution (without a corresponding dividend or distribution on Series A Preferred Stock) payable in additional shares of Common Stock or other securities or rights convertible into, or entitling the holder thereof to receive directly or indirectly, additional shares of Common Stock (hereinafter referred to as “ Common Stock

 

9



 

Equivalents ”) without payment of any consideration by such holder for the additional shares of Common Stock or the Common Stock Equivalents or in connection therewith (including, without limitation, for the additional shares of Common Stock issuable upon conversion or exercise thereof), then, as of such record date (or the date of such dividend distribution, split or subdivision if no record date is fixed), the Series A Preferred Conversion Price shall be appropriately decreased so that the number of shares of Class C Voting Common Stock issuable on conversion of each share of Series A Preferred Stock shall be increased in proportion to such increase in the aggregate number of shares of Common Stock outstanding and those issuable with respect to such Common Stock Equivalents, with the number of shares issuable with respect to Common Stock Equivalents determined from time to time in the manner provided for deemed issuances in Section 3(d)(i)(E).

 

(iv)                               Combinations .  If the number of shares of Common Stock outstanding at any time after the Series A Purchase Date is decreased by a combination of the outstanding shares of Common Stock (without a corresponding combination of the Series A Preferred Stock), then, following the record date of such combination, the Series A Preferred Conversion Price shall be appropriately increased so that the number of shares of Class C Voting Common Stock issuable on conversion of each share of Series A Preferred Stock shall be decreased in proportion to such decrease in outstanding shares.

 

(e)                                   Recapitalizations .  If at any time or from time to time there shall be a recapitalization of the Common Stock (other than a subdivision or combination provided for in Section 3(d)(iii) or Section 3(d)(iv) or a capital reorganization, merger, consolidation, or sale provided for in Section 3(f)), provision shall be made so that the holders of the Series A Preferred Stock shall thereafter be entitled to receive upon conversion of the Series A Preferred Stock the number of shares of stock or other securities or property of the corporation or otherwise, to which a holder of Common Stock deliverable upon conversion would have been entitled on such recapitalization.  In any such case, appropriate adjustment shall be made in the application of the provisions of this Section 3 with respect to the rights of the holders of the Series A Preferred Stock after the recapitalization to the end that the provisions of this Section 3 (including adjustment of the Series A Preferred Conversion Price then in effect and the number of shares issuable upon conversion of the Series A Preferred Stock) shall be applicable after that event as nearly equivalent as may be practicable.

 

(f)                                    Reorganizations, Mergers, Consolidations or Sales of Assets .  If at any time or from time to time, there is a capital reorganization of the Common Stock or the merger or consolidation of the corporation with or into another corporation or the sale of all or substantially all of the assets of the corporation (other than a Liquidation Event or a recapitalization, subdivision, combination, reclassification, exchange or substitution of shares provided for elsewhere in this Section 3), then, as a part of such capital reorganization, merger, consolidation, or sale, provision shall be made so that the holders of the Series A Preferred Stock shall thereafter be entitled to receive upon conversion of the Series A Preferred Stock held by them, the number of shares of stock or other securities or property of the corporation to which a holder of the number of shares of Common Stock deliverable upon conversion would have been entitled on such capital reorganization, merger, consolidation, or sale.  In any such case, appropriate adjustment shall be made in the application of the provisions of this Section 3 with respect to the rights of the holders of Series A Preferred Stock after such capital reorganization, merger,

 

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consolidation, or sale to the end that the provisions of this Section 3 (including adjustment of the Series A Preferred Conversion Price then in effect and the number of shares issuable upon conversion of the Series A Preferred Stock) shall be applicable after that event and be as nearly equivalent as practicable.

 

(g)                                   Other Distributions .  In the event the corporation shall declare a distribution payable in securities of other entities, evidences of indebtedness issued by the corporation or other entities, assets (excluding cash dividends) or options or rights not referred to in Section 3(d)(iii), then, in each such case for the purpose of this Section 3(g), the holders of shares of Series A Preferred Stock shall be entitled to a proportionate share of any such distribution as though they were the holders of the number of shares of Class C Voting Common Stock into which their shares of Series A Preferred Stock are convertible as of the record date fixed for the determination of the holders of Common Stock entitled to receive such distribution.

 

(h)                                  No Impairment .  The corporation will not, by amendment of its Amended and Restated Articles of Incorporation or through any reorganization, recapitalization, transfer of assets, consolidation, merger, dissolution, issue or sale of securities or any other voluntary action, avoid or seek to avoid the observance or performance of any of the terms to be observed or performed hereunder by the corporation, but will at all times in good faith assist in the carrying out of all the provisions of this Section 3 and in the taking of all such action as may be necessary or appropriate in order to protect the Conversion Rights of the holders of the Series A Preferred Stock against impairment; provided, however, that the foregoing shall not prevent the corporation from amending its Amended and Restated Articles of Incorporation upon receiving the appropriate stockholder consents, including pursuant to Section 5(a)(i) herein.

 

(i)                                      No Fractional Shares and Certificate as to Adjustments .

 

(i)                                      No fractional shares shall be issued upon the conversion of any share or shares of Series A Preferred Stock, and the number of shares of Class C Voting Common Stock to be issued shall be rounded to the next whole share (with one-half rounded upward).  Whether or not fractional shares are issuable upon such conversion shall be determined on the basis of the total number of shares of Series A Preferred Stock the holder is at the time converting into Class C Voting Common Stock and the number of shares of Class C Voting Common Stock issuable upon such aggregate conversion.

 

(ii)                                   Upon the occurrence of each adjustment or readjustment of the Series A Preferred Conversion Price pursuant to this Section 3, the corporation, at its expense, shall promptly compute such adjustment or readjustment in accordance with the terms hereof and prepare and furnish to each holder of Series A Preferred Stock a certificate setting forth such adjustment or readjustment and showing in detail the facts upon which such adjustment or readjustment is based.  The corporation shall, upon the written request at any time of any holder of Series A Preferred Stock, furnish or cause to be furnished to such holder a like certificate setting forth (A) such adjustment and readjustment, (B) the Series A Preferred Conversion Price at the time in effect, and (C) the number of shares of Class C Voting Common Stock and the amount, if any, of other property which at the time would be received upon the conversion of a share of such holder’s Series A Preferred Stock.  Notwithstanding anything to the contrary in this Section 3, except for any increases to the Series A Preferred Conversion Price pursuant to

 

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Section 3(d)(i)(E)(3) and 3(d)(i)(E)(4), any adjustment to the Series A Preferred Conversion Price may be waived by the Requisite Holders in a writing delivered by the Requisite Holders to the corporation.

 

(j)                                     Notices of Record Date .  In the event of any taking by the corporation of a record of the holders of any class of securities for the purpose of determining the holders thereof who are entitled to receive any dividend (other than a cash dividend) or other distribution, any right to subscribe for, purchase or otherwise acquire any shares of stock of any class or any other securities or property, or to receive any other right, the corporation shall mail to each holder of Series A Preferred Stock, at least 20 days prior to the date specified therein (or such lesser period as permitted by the Requisite Holders), a notice specifying the date on which any such record is to be taken for the purpose of such dividend, distribution or right, and the amount and character of such dividend, distribution or right.

 

(k)                                  Reservation of Stock Issuable Upon Conversion .  The corporation shall at all times reserve and keep available out of its authorized but unissued shares of Common Stock, solely for the purpose of effecting the conversion of the shares of the Series A Preferred Stock, such number of its shares of Class C Voting Common Stock as shall from time to time be sufficient to effect the conversion of all outstanding shares of the Series A Preferred Stock.  If at any time the number of authorized but unissued shares of Common Stock shall not be sufficient to effect the conversion of all then outstanding shares of Series A Preferred Stock, in addition to such other remedies as shall be available to the holder of Series A Preferred Stock, the corporation will take such corporate action as may, in the opinion of its counsel, be necessary to increase its authorized but unissued shares of Common Stock to such number of shares as shall be sufficient for such purposes, including, without limitation, engaging in commercially reasonable efforts to obtain the requisite stockholder approval of any necessary amendment to this Amended and Restated Articles of Incorporation.

 

(l)                                      Payment of Taxes .  The corporation will pay all taxes (other than taxes based upon income) and other governmental charges that may be imposed with respect to the issue or delivery of shares of Class C Voting Common Stock upon conversion of shares of Series A Preferred Stock, excluding any tax or other charge imposed in connection with any transfer involved in the issue and delivery of shares of Class C Voting Common Stock in a name other than that in which the shares of Series A Preferred Stock so converted were registered.

 

4.                                       Voting Rights .  The holders of Series A Preferred Stock shall be entitled to cast the number of votes equal to the number of whole shares of Class C Voting Common Stock into which the shares of Series A Preferred Stock held by such holder are convertible as of the record date for determining stockholders entitled to vote on such matter.

 

5.                                       Protective Provisions .

 

(a)                                  The corporation shall not, and it shall not permit any subsidiary to, without first obtaining the approval (by vote or written consent) of the Requisite Holders, take any of the following actions (whether by amendment, merger, consolidation, recapitalization or otherwise):

 

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(i)                                      alter or change the rights, preferences or privileges of any of terms of the Series A Preferred Stock so as to affect the Series A Preferred Stock adversely;

 

(ii)                                   amend or waive any provision of the corporation’s Articles of Incorporation or Bylaws so as to affect the Series A Preferred Stock adversely;

 

(iii)                                increase the authorized shares of Series A Preferred Stock; or

 

(iv)                               declare or pay dividends or other distributions or redeem any shares of capital stock (other than as permitted herein) in an aggregate amount greater than would be permitted under the corporation’s credit facilities in effect from time to time.

 

Notwithstanding the foregoing, the mere creation or issuance (other than by reclassification) of any new or existing class or series of shares having rights, preferences or privileges senior to or on parity with the Series A Preferred Stock shall not be deemed to adversely affect the Series A Preferred Stock.

 

6.                                       Optional Redemption .

 

(a)                                  Following the receipt by the corporation of a written request from the Requisite Holders (the “ Redemption Request ”) that all shares of Series A Preferred Stock be redeemed anytime on or after the earlier of (i) January 23, 2021, (ii) such time as the corporation’s Enterprise Value is equal to or greater than $5,000,000,000, (iii) such time as the majority of the members of the Board of Directors as of the date hereof are no longer members of the Board of Directors and Phil Hagerman is not a member of the Board of Directors, (iv) such time as Phil Hagerman is no longer serving in an executive capacity for the corporation, and (v) such time as Phil Hagerman and/or Jeffrey Rowe (together with their respective family members, estate planning vehicles and affiliates) no longer directly or indirectly control a majority of the economic or voting power of the corporation, the corporation shall, to the extent that it may lawfully do so, redeem all of the shares of Series A Preferred Stock then outstanding, at a price per share (the “ Series A Redemption Price ”) in cash equal to the greater of (A) the Original Series A Issue Price plus all declared but unpaid dividends on such share, and (B) the Fair Market Value.  Any such redemption shall be effected on a date (such date, the “ Redemption Date ”) within at least thirty (30) days of (x) such request for redemption and (y)  the determining of the Series A Redemption Price pursuant to the terms herein .  At least fifteen (15) but not more than thirty (30) days prior to any such redemption the corporation shall provide notice to all holders of Series A Preferred Stock of the date of the Redemption Date and the Series A Redemption Price.

 

(b)                                  From and after the Redemption Date, except as provided below, the holders of Series A Preferred Stock shall have solely the right to receive payment of the Series A Redemption Price in respect of shares of Series A Preferred Stock, and the Series A Preferred Redemption Price shall be paid to a holder of Series A Preferred Stock upon surrender by such holder at the principal office of the corporation of certificates representing such Series A Preferred Stock (or an affidavit of loss, mutilation or destruction, together with an indemnity against loss as a result thereof).  Upon receipt of the Redemption Request, the corporation shall apply all of its assets to any such redemption, and to no other corporate purpose, except to the

 

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extent prohibited by any financing arrangements of the corporation or Michigan law governing distributions to shareholders.  If the corporation shall not have sufficient funds legally available to make full redemption of the Series A Preferred Stock pursuant to Section 6(a), then it shall redeem as much Series A Preferred Stock, pro rata among the holders thereof, as is legally permissible until all such shares of Series A Preferred Stock have been redeemed, and thereafter shall use its best efforts to secure legally available funds for such a redemption and when any such additional funds of the corporation become legally available from time to time for the redemption of shares of Series A Preferred Stock, such funds will immediately be used to redeem additional shares of Series A Preferred Stock (again, pro rata among holders) until all such shares of Series A Preferred Stock have been redeemed.  Until the Redemption Date, all shares of Series A Preferred Stock shall remain outstanding, fully convertible, and otherwise entitled to all rights and benefits hereunder and under law.  Following such Redemption Date as to any shares of Series A Preferred Stock as to which the corporation does not have sufficient legally available funds for redemption or (without limiting any obligations of the corporation or any rights of any holder of Series A Preferred Stock) in the event of any default by the corporation of its obligations of redemption hereunder, shares of Series A Preferred Stock which have not been redeemed shall remain outstanding and shall be entitled to all of the rights and preferences provided herein until redeemed.

 

(c)                                   If the holders of Series A Preferred Stock own in the aggregate more than 20% of the sum of the Common Stock and the Series A Preferred Stock (based on the number of shares of Class C Voting Common Stock into which such Series A Preferred Stock would be convertible at such time) (the “ 20% Threshold ”) as of immediately prior to the corporation’s first firm commitment underwritten public offering of its Common Stock registered under the Securities Act (the “ IPO ”), then following the receipt by the corporation of a written request from the Requisite Holders in accordance with the remaining provisions of this Section 6(c) (the “ IPO Redemption Request ”), the corporation shall, to the extent that it may lawfully do so, redeem the minimum number of shares of Series A Preferred Stock, pro rata among the holders thereof, as is necessary to reduce the aggregate holdings of Class C Voting Common Stock and Series A Preferred Stock of such holders below the 20% Threshold, at a price per share in cash equal to the Series A Redemption Price.  Any such redemption shall be effected following such request for redemption, which shall be made at least fifteen (15) days prior to the anticipated date of the IPO (such date, the “IPO Redemption Date”) as provided by the corporation in accordance with the immediately following sentence of this Section 6(c), and in any event prior to the effective date of the IPO.  The corporation shall provide notice to all holders of Series A Preferred Stock of the date of the anticipated date of the IPO and the Series A Redemption Price at least thirty (30) days prior to the IPO.

 

(d)                                  From and after the IPO Redemption Date, except as provided below, the holders of Series A Preferred Stock shall have solely the right to receive their pro rata share of payment of the Series A Redemption Price in respect of that number of shares of Series A Preferred Stock necessary to reduce the aggregate holdings of Common Stock and Series A Preferred Stock of such holders below the 20% Threshold, and such payment shall be paid to a holder of Series A Preferred Stock upon surrender by such holder at the principal office of the corporation of certificates representing such Series A Preferred Stock (or an affidavit of loss, mutilation or destruction, together with an indemnity against loss as a result thereof).  If the corporation shall not have sufficient funds legally available to redeem that number of shares of

 

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the Series A Preferred Stock required pursuant to Section 6(c), then it shall redeem as much Series A Preferred Stock, pro rata among the holders thereof, as is legally permissible until all such shares of Series A Preferred Stock have been redeemed.  Following such IPO Redemption Date as to any shares of Series A Preferred Stock required to be redeemed pursuant to Section 6(c) as to which the corporation does not have sufficient legally available funds for redemption or (without limiting any obligations of the corporation or any rights of any holder of Series A Preferred Stock)  in the event of any default by the corporation of its obligations of redemption hereunder, shares of Series A Preferred Stock which have not been redeemed shall remain outstanding and shall be entitled to all of the rights and preferences provided herein until redeemed.

 

(e)                                   The following additional definitions shall apply to this Section 6:

 

(i)                                      Appraisal Process ” shall mean the following process: each of the corporation and the Requisite Holders shall select an independent appraiser of national recognition, which two appraisers shall select a third independent appraiser of national recognition, and this third appraiser shall place a value upon the applicable property, which appraisal shall be prepared as soon as practicable thereafter.  Such appraisal shall not discount the value of any securities for illiquidity or minority status and shall be binding upon all stockholders.  If required by any such appraiser, the corporation shall execute a retainer and engagement letter containing reasonable terms and conditions, including, without limitation, customary provisions concerning the rights of indemnification and contribution by the corporation in favor of such appraiser and its officers, directors, partners, employees, agents and affiliates.  The cost of such appraisal shall be borne equally by the corporation and the holders of the Series A Preferred Stock.

 

(ii)                                   Enterprise Value ” shall mean an amount equal to the corporation’s common equity value plus the value of its outstanding Preferred Stock and the amount of its funded debt minus the corporation’s cash and cash equivalents.

 

(iii)                                Fair Market Value ” mean the fair market value of a single share of Series A Preferred Stock as mutually agreed upon by the Board of Directors and the Requisite Holders, and, in the event that they are unable to reach agreement within a reasonable period of time (not to exceed thirty (30) days), such valuation amount shall be determined by the Appraisal Process.

 

7.                                       Status of Converted or Redeemed Stock .  In the event any shares of Series A Preferred Stock shall be converted pursuant to Section 3 hereof or redeemed pursuant to Section 6 hereof, the shares so converted or redeemed shall be canceled and shall not be issuable by the corporation.

 

8.                                       Notices .  Any notice required by the provisions of this Article IV to be given to the holders of shares of Series A Preferred Stock shall be given by the corporation in writing by reputable overnight courier service ( e.g ., Federal Express) for next business day delivery, delivery fee to be paid by the corporation, addressed to each holder of record at the address appearing on the books of the corporation, and such notice shall be deemed given when delivered to such address by such courier service.

 

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C.                                     Common Stock .

 

1.                                       Dividend Rights .  Subject to the participating rights of holders of Series A Preferred Stock and any other classes of stock at the time outstanding having prior rights as to dividends and any restrictions pursuant to the rights of any series of Preferred Stock as may be outstanding from time to time, the holders of the Common Stock shall be entitled to receive, when and as declared by the Board of Directors, out of any assets of the corporation legally available therefor, such dividends as may be declared from time to time by the Board of Directors.

 

2.                                       Liquidation Rights .  Upon a Liquidation Event, the assets of the corporation shall be distributed as provided in Section 2 of Division B of this Article IV.

 

3.                                       Redemption .  The Common Stock is not redeemable at the option of the holder of Common Stock.

 

4.                                       Voting Rights .  Subject to Section 5 of Division B of this Article IV, each holder of Class A Voting Common Stock shall have the right to twenty (20) votes for each share of Class A Voting Common Stock held by such holder, and shall be entitled to notice of any stockholders’ meeting in accordance with the Bylaws of the corporation, and shall be entitled to vote upon such matters and in such manner as may be provided by law.  The holders of Class B Nonvoting Common Stock shall have no voting rights, except as required by law.  Each holder of Class C Voting Common Stock shall have the right to one (1) vote for each share of Class C Voting Common Stock held by such holder, and shall be entitled to notice of any stockholders’ meeting in accordance with the Bylaws of the corporation, and shall be entitled to vote upon such matters and in such manner as may be provided by law.

 

ARTICLE V

 

Except as otherwise provided in these Amended and Restated Articles of Incorporation, in furtherance and not in limitation of the powers conferred by statute, the Board of Directors is expressly authorized to make, repeal, alter, amend and rescind any or all of the Bylaws of the corporation.

 

ARTICLE VI

 

Elections of directors need not be by written ballot unless the Bylaws of the corporation shall so provide.

 

ARTICLE VII

 

Meetings of the stockholders may be held within or without the State of Michigan, as the Bylaws may provide.  The books of the corporation may be kept (subject to any provision contained in the statutes) outside the State of Michigan at such place or places as may be designated from time to time by the Board of Directors or in the Bylaws of the corporation.

 

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ARTICLE VIII

 

A director of the corporation shall, to the fullest extent permitted by the Business Corporation Act of the State of Michigan as it now exists or as it may hereafter be amended, not be personally liable to the corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, except for liability (i) for any breach of the director’s duty of loyalty to the corporation or its stockholders, (ii) for acts or omissions not in good faith or that involve intentional misconduct or a knowing violation of law, (iii) under Section 551 of the Business Corporation Act of the State of Michigan, as the same exists or hereafter may be amended, or (iv) for any transaction from which the director derived any improper personal benefit.  If the Business Corporation Act of the State of Michigan is amended, after approval by the stockholders of this Article, to authorize corporate action to further eliminate or limit the personal liability of directors, then the liability of a director of the corporation, in addition to the limitation on personal liability provided in the preceding sentence, shall automatically, by virtue hereof and without any further action on the part of the corporation or its stockholders, be eliminated or further limited to the fullest extent permitted by the Business Corporation Act of the State of Michigan, as so amended.

 

Any amendment, repeal or modification of this Article VIII, or the adoption of any provision of the Amended and Restated Articles of Incorporation inconsistent with this Article VIII, by the stockholders of the corporation shall be prospective only and shall not apply to or adversely affect any right or protection of a director, officer, agent or other person existing at the time of, or any limitation on the personal liability of a director of the corporation with regard to actions taken or omitted before, such amendment, repeal or modification.

 

ARTICLE IX

 

Except as provided in Section 5 of Division B of Article IV hereof, the corporation reserves the right to amend, alter, change or repeal any provision contained in this Amended and Restated Articles of Incorporation, in the manner now or hereafter prescribed by statute, and all rights conferred upon stockholders herein are granted subject to this reservation.

 

ARTICLE X

 

To the fullest extent permitted by applicable law, the corporation shall provide indemnification of (and advance of expenses to) the directors and officers of the corporation and is authorized to provide indemnification of (and advancement of expenses to) employees and agents of the corporation (and any other persons to which Business Corporation Act of the State of Michigan permits the corporation to provide indemnification).  In addition, the corporation is authorized to provide indemnification of (and advancement of expenses to) all of the foregoing persons, through Bylaw provisions, agreements with such agents or other persons, vote of stockholders or disinterested directors or otherwise, in excess of the indemnification and advancement otherwise permitted by Sections 561 through 563, 564(a) through 564(c), 565, 567, 569 and 571 of the Business Corporation Act of the State of Michigan, subject only to limits created by applicable provisions of law (statutory or non-statutory), with respect to actions for breach of duty to the corporation, its stockholders, and others.

 

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Any amendment, repeal or modification of the foregoing provisions of this Article X shall be prospective only and shall not adversely affect any right or protection of a director, officer, agent or other person existing at the time of, or increase the liability of any director of the corporation with respect to any acts or omissions of such director, officer or agent occurring prior to, such amendment, repeal or modification.

 

SIXTH:  The foregoing amendment and restatement has been approved by the Board of Directors of the corporation.

 

The foregoing amendment was approved by the holders of the requisite number of shares of said corporation in accordance with Section 611(3) of the Business Corporation Act of the State of Michigan.

 

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IN WITNESS WHEREOF, the undersigned has executed this certificate on March 31, 2014.

 

 

 

/s/ Sean Whelan

 

Sean Whelan, Secretary and Treasurer

 




Exhibit 3.4

 

AMENDED BY-LAWS OF
DIPLOMAT PHARMACY, INC.

 

Adopted:  April 24, 1991

 

ARTICLE ONE
OFFICES

 

Registered Office and Registered Agent

 

1.01         The Corporation shall continuously maintain a registered office in the State of Michigan and a registered agent whose business office or residence is identical with the registered office.  If the location of the registered office is changed, or if the registered agent is changed, dies, resigns, or becomes disqualified, the Board of Directors shall, as applicable, determine the address of a new registered office, designate a successor registered agent, or both.  To effect the change in registered office or registered agent, the Board shall cause the officers of the Corporation to file the required documents with the proper state agency.

 

Principal Place of Business

 

1.02         The principal place of business of the Corporation is G-3426 Flushing Road, Flint, Michigan.  The Board of Directors has full power and authority to change the principal place of business at any time to another location within or outside of the State of Michigan.

 

Other Offices

 

1.03         The Corporation may also have offices at other places as the Board of Directors may from time to time appoint or as the business of the Corporation may require.

 

ARTICLE TWO
SHAREHOLDERS AND SHAREHOLDERS’ MEETINGS

 

Place of Meetings

 

2.01         All meetings of shareholders of the Corporation shall be held at the registered office of the Corporation or at another location designated by the Board of Directors.  The location of the meeting shall be stated in the notice of meeting.

 

Time of Annual Meeting

 

2.02         The annual meeting of the shareholders of the Corporation for the election of Directors to succeed those whose terms expire and for the transaction of other business that may properly come before the meeting shall be held each year on the fourth Tuesday in June, if not a legal holiday, and if a legal holiday, then on the following business day, unless action is taken by written consent as permitted by the laws of the State of Michigan, or unless the Board of Directors shall designate a different day.

 



 

If the election of Directors does not occur, either by written consent or by meeting, on the day designated for the annual meeting or at any adjournment of the meeting, the President or, in his or her absence, the Vice-President, or a majority of the Board of Directors shall call a special meeting of the shareholders as soon as conveniently possible.  At that meeting, the election of Directors shall take place, and the election and any other business transacted shall have the same force and effect as if transacted at an annual meeting duly called and held.

 

Special Meetings

 

2.03         Special meetings of the shareholders may be called by the President of the Corporation and the Board of Directors.  Business transacted at all special meetings shall be confined to the matters stated in the notice of the meeting.  It is the duty of the Secretary to send out notice of the meeting in accordance with the provisions set forth in Section 2.04 of these By-Laws.

 

Notice of Meetings

 

2.04         Written notice of the date, time, place and purpose of all meetings of shareholders shall be given by mail or personally, not less than ten days and not more than sixty days prior to the date of the meeting to each shareholder of record of the Corporation entitled to vote at the meeting.  If mailed, the notice shall be directed to each shareholder entitled to notice at his or her address as it appears on the books of the Corporation unless the shareholder has requested the Secretary in writing to deliver notice to him or her at another address.  No publication of the notice of meeting shall be required.

 

Waiver of Notice

 

2.05         Whenever any notice is required to be given to a shareholder under law or under the provisions of the Corporation’s Articles of Incorporation or these By-Laws, a written waiver of notice signed by the shareholder entitled to notice, whether before or after the time stated in the notice, shall be deemed equivalent to the giving of notice.  In the case of notice for special meetings, any written waiver of notice shall state the business to be transacted and the purpose of the meeting, and the waiver is only valid as to the matters stated.  Attendance of a person at a meeting of shareholders, in person or by proxy, constitutes a waiver of notice of the meeting unless the shareholder attends the meeting for the express purpose of objecting, and does object, at the beginning of the meeting to the transaction of business because the meeting was not properly called or noticed.

 

Record Date for Determination of Shareholders

 

2.06         The Board of Directors shall fix in advance a date as the record date for the determination of shareholders entitled to notice of, and to vote at, the meeting.  The date may not be more than sixty days nor less than ten days before the date of the meeting.  If the Board does not fix the record date, the record date shall be the close of business on the day next preceding the day on which notice is given, or if no notice is given, the next day preceding the day on which the meeting is held.

 



 

Voting List

 

2.07         The officer having charge of the transfer book for shares of the Corporation shall make and certify a complete list of the shareholders entitled to vote at any shareholders’ meeting.  The list shall be arranged alphabetically within each class and series, with the address of, and the number of shares held by, each shareholder.  It shall be produced at the time and place of the meeting and be subject to inspection by any shareholder during the whole time of the meeting.  The list shall be prima facie evidence of the shareholders entitled to examine the list or to vote at the meeting.

 

Quorum

 

2.08         A quorum at any annual or special meeting of shareholders shall consist of shareholders representing, either in person or by proxy, a majority of the outstanding shares of the Corporation entitled to vote at the meeting, except as otherwise specifically provided by law or in the Articles of Incorporation or in a by-law adopted by the shareholders or incorporators.

 

Voting

 

2.09         (a)            At every meeting of the shareholders, each shareholder of the Corporation entitled to vote at the meeting shall have, as to each matter submitted to a vote, one vote in person or by proxy for each share of stock having voting rights registered in his or her name on the books of the Corporation.  A shareholder may vote his or her shares through a proxy appointed by a written instrument signed by the shareholder or by his or her duly authorized attorney-in-fact and delivered to the Secretary of the meeting.  No proxy shall be valid after three years from the date of its execution unless otherwise provided in the proxy.

 

(b)            The voting at all meetings of shareholders may be by voice vote or by written ballot, including the election of Directors.

 

(c)            If a quorum is present, the affirmative vote of the majority of shares represented at the meeting and entitled to vote shall be the act of the shareholders unless the vote of a greater number, or voting by classes, is required by the statute, or the Articles of Incorporation, or these By-Laws, except for the election of Directors which shall require a plurality vote.  In the absence of a quorum or the withdrawal of enough shareholders to leave less than a quorum, any meeting may be adjourned from time to time by the vote of a majority of the shares present, but no other matters may be voted on until a quorum is established.

 

Action Without Meeting

 

2.10         Any action required by statute to be taken at a meeting of the shareholders, or any other action that may be taken at a meeting of the shareholders, may be taken without a meeting, without prior notice, and without a vote if written consents, setting forth the action taken, are signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take the action at a meeting at which all shares entitled to vote on the action were present and voted.  The consents shall bear the date of signature of each shareholder who signs.  The written consents shall not be effective to take the corporate action referred to unless, within sixty days after the record date for determining shareholders entitled to

 



 

express consent without a meeting, the written consents signed by a sufficient number of shareholders to take the action are delivered to the corporation.  Delivery shall be to the corporation’s registered office, its principal place of business or an officer or agent of the corporation having custody of the minutes of the proceedings of its shareholders.  Prompt notice of an action taken without a meeting by less than unanimous written consent shall be given to shareholders who have not consented in writing.

 

ARTICLE THREE
BOARD OF DIRECTORS

 

Directors Defined

 

3.01         “Directors”, when used in relation to any power or duty requiring collective action, means “Board of Directors”.

 

Qualifications

 

3.02         Unless the Articles of Incorporation require otherwise, the Directors need not be residents of the State of Michigan nor shareholders of the Corporation.

 

Powers

 

3.03         The business and affairs of the Corporation shall be managed by, and all corporate powers shall be exercised by or under the authority of, the Board of Directors, subject to limitations imposed by law, the Articles of Incorporation, or these By-Laws as to action that requires authorization or approval of the shareholders.

 

Number and Term of Directors

 

3.04         The number of Directors of this Corporation shall be two.  Each Director shall be elected at the annual meeting of the shareholders to hold office until the succeeding annual meeting.  A Director holds office for the term for which he or she is elected and until his or her successor is elected and qualified, or until his or her resignation or removal.

 

Resignation and Removal

 

3.05         (a)            A Director may resign by giving written notice to the Corporation.  The resignation shall be effective on its receipt by the Corporation unless a future effective date is set forth in the notice of resignation.

 

(b)            Vacancies created by the resignation or death of a Director may be filled by a majority vote of the Board of Directors, and the person appointed to fill any vacancy shall serve until a qualified successor is elected, at either the next annual meeting of the shareholders or at a special meeting called for that purpose.

 

(c)            At any meeting of the shareholders, any Director or Directors may be removed from office, with or without cause, by a majority vote of the holders of a majority of the shares entitled to vote on the removal.

 



 

(d)            If any Director or Directors are removed, new Directors may be elected at the same meeting of the shareholders for the unexpired term of the Director or Directors removed.  If the shareholders fail to elect persons to fill the unexpired term or terms of the Director or Directors removed, the unexpired terms shall be considered vacancies on the Board to be filled by majority vote of the remaining Directors.

 

Regular Meetings

 

3.06         Regular meetings of the Board of Directors shall be held, without call or notice, immediately following each annual meeting of the shareholders and at any other times as the Directors may determine.

 

Special Meetings

 

3.07         Special meetings of the Board of Directors shall be called by the Chairperson of the Board or by any two Directors.  Written notice of the meeting, stating the time, place and purpose of the meeting, shall be delivered to each Director, either personally or by mail, at least seven days prior to the date set for the meeting.  The Directors shall designate the location of any meeting by resolution or by written consent of all the members, but if no designation is made, meetings shall be held at the registered office of the Corporation.

 

Quorum

 

3.08         A majority of the members of the Board of Directors in office at the time of the meeting constitutes a quorum for the transaction of any business.

 

Vote Requirements

 

3.09         An affirmative majority vote of the Directors at a meeting at which a quorum is present constitutes the action of the Board of Directors unless a greater number is required by statute, the Articles of Incorporation or these By-Laws.       If there is less than a quorum present, a majority of those present may adjourn the meeting, without further notice, from time to time until the quorum has been obtained.

 

Waiver of Notice

 

3.10         The actions taken at any meeting of the Board of Directors, however called or noticed or wherever held, are as valid as if they had been taken at a duly called and noticed meeting if a quorum is present and if, either before or after the meeting, each Director who is not present signs a waiver of notice of a consent to holding the meeting.  All waivers or consents shall be made part of the minutes of the meeting.  Attendance of a Director at any meeting constitutes a waiver of notice of the meeting, unless his or her attendance is for the express purpose of objecting to, and he or she does object to, the transaction of any business because the meeting is not lawfully called or convened.

 



 

Action Without Meeting

 

3.11         Any action required by law to be taken at a meeting of the Board of Directors or any other action which may be taken at a meeting of the Board may be taken without a meeting if a consent in writing, setting forth the action to be taken, is signed by all of the Directors.

 

Committees

 

3.12         (a)            The Board of Directors, by resolution adopted by a majority of the Directors in office, may designate one or more Directors to constitute an executive committee, and may appoint any other committees from among its members as it deems necessary.  Each committee has and shall exercise those powers conferred or authorized by the resolution appointing it.  A majority of any committee may determine its action and may fix the time and place of its meetings unless otherwise provided by the Board of Directors.  The Board of Directors has the power at any time to fill vacancies in, to change the size or membership of, and to discharge any committee.

 

(b)            Each committee shall keep a written record of its acts and proceedings, and shall submit that record to the Board of Directors as requested by the Board of Directors.

 

Compensation

 

3.13         The Board of Directors, by the affirmative vote of a majority of the Directors then in office and irrespective of any personal interest of any of its members, may establish reasonable compensation of all Directors for services rendered to the Corporation as Directors, officers, or otherwise.

 

ARTICLE FOUR
INDEMNIFICATION

 

4.01         The Board of Directors shall authorize the Corporation to pay or reimburse any present or former director, officer or employee of the Corporation any judgments, fines, penalties, costs or expenses actually and necessarily incurred by him or her in any action, suit or proceeding to which he or she is made a party by reason of holding his or her position.  Payment or reimbursement is conditioned on the director, officer or employee having acted in good faith and in a manner he or she reasonably believed to be in, and not opposed to, the best interests of the Corporation.  However, the director, officer or employee shall not receive indemnification if he or she is finally adjudicated to be liable for negligence or misconduct in the performance of his or her duty to the Corporation.  The indemnification provided in this paragraph shall also extend to good faith expenditures incurred in anticipation of, or preparation for, threatened or proposed litigation.  The Board of Directors may, in proper cases, extend the indemnification to cover the good faith settlement of any action, suit or proceeding, whether formally instituted or not.  The rights of indemnification set forth in this Article are in addition to, and not exclusive of, all other rights to which the director, officer, employee or agent may be entitled.

 



 

ARTICLE FIVE
OFFICERS

 

5.01         The officers of the Corporation shall be President, Vice-President, Secretary and Treasurer.  The Corporation may also have, at the discretion of the Board of Directors, one or more additional Vice-Presidents, one or more Assistant Secretaries, one or more Assistant Treasurers and other officers and assistant officers as may be elected in accordance with the provisions of paragraph 5.02 of this Article.  The Board of Directors may delegate to any officer or committee the power to appoint any subordinate officers, committees or agents; to specify their duties and authority; and to determine their compensation.

 

Election

 

5.02         The officers of the Corporation shall be chosen annually by the Board of Directors and each is to hold office until he or she resigns or is removed or otherwise disqualified to serve, or until his or her successor is elected and qualified.  One person may be elected to hold two or more offices.  However, no officer may execute, acknowledge or verify an instrument in more than one capacity if the instrument is required by law, the Articles of Incorporation or these By-Laws to be executed, acknowledged or verified by two or more officers.

 

President

 

5.03         The President shall be the chief executive officer of the Corporation and shall, subject to the control of the Board of Directors, have general supervision, direction and control of the business and officers of the Corporation; have the general powers and duties of management usually vested in the office of President of a corporation; and have all other powers and duties as may be prescribed by the Board of Directors or these By-Laws.  Within this authority and in the course of his or her duties, the President shall:

 

(a)            Preside at all meetings of the shareholders and be ex officio a member of all standing committees of the Corporation.

 

(b)            Sign all certificates of stock of the Corporation in conjunction with the Secretary or Assistant Secretary, unless otherwise ordered by the Board of Directors.

 

(c)            When authorized by the Board of Directors or required by law, execute, in the name of the Corporation, deeds, conveyances, notices, leases, checks, drafts, bills of exchange, warrants, promissory notes, bonds, debentures, contracts and other papers and instruments in writing, and unless the Board of Directors shall order otherwise by resolution, make contracts as the ordinary conduct of the Corporation’s business may require.

 

(d)            Appoint and remove, employ and discharge and prescribe the duties and fix the compensation of all agents and employees of the Corporation other than the duly appointed officers, subject to the approval of the Board of Directors; and control, subject to the direction of the Board of Directors, all of the officers, agents and employees of the Corporation.

 



 

(e)            Unless otherwise directed by the Board of Directors, attend in person or by substitute appointed by him or her, and act and vote on behalf of the Corporation at all meetings of the shareholders of any corporation in which this Corporation holds stock.

 

Vice-Presidents

 

5.04         In the absence or disability of the President, the Vice-Presidents, if more than one, in order of their rank as fixed by the Board of Directors or, if not ranked, the Vice-President designated by the Board of Directors, shall perform all the duties of the President, and when so acting shall have all the powers of, and be subject to all the restrictions on, the President.  The Vice-Presidents shall have all other powers and perform all other duties as from time to time may be prescribed for them respectively by the Board of Directors or these By-Laws.

 

Secretary

 

5.05         The Secretary shall:

 

(a)            Sign, with the President or a Vice-President, certificates for shares of the Corporation.

 

(b)            Certify and keep at the principal place of business of the Corporation the original or a copy of its By-Laws, including all amendments or alterations to the By-Laws.

 

(c)            Keep at the place where the By-Laws or a copy are kept a record of the proceedings of meetings of its directors and shareholders, executive committee, and other committees, with the time and place of holding, whether regular or special, and, if special, how authorized, the notice of meeting given, the names of those present at directors’ meetings, the number of shares or members present or represented at shareholders’ meetings and the proceedings of the meetings.

 

(d)            Sign, certify or attest documents as may be required by law or the business of the Corporation; keep the corporate seal, if any; and affix the seal to instruments as may be necessary or proper.

 

(e)            See that all notices are duly given in accordance with the provisions of these By-Laws or as required by law.  In cases of the absence or disability of the Secretary, or his or her refusal or neglect to act, notice may be given and served by an Assistant Secretary or by the President or Vice-Presidents, if any, or by the Board of Directors.

 

(f)             Be custodian of the records and of the seal of the Corporation, if any, and see that it is engraved, lithographed, printed, stamped, impressed on or affixed to all certificates for shares prior to their issuance and to all documents, the execution of which on behalf of the Corporation under its seal is duly authorized in accordance with the provisions of these By-Laws.

 

(g)            Keep at the place where the By-Laws or a copy are kept, or at the office of the transfer agent or registrar, a share register or duplicate share register giving the names of the shareholders, their respective addresses, and the number and classes of shares held by each; keep

 



 

appropriate, complete and accurate books or records of account at the Corporation’s principal place of business.

 

(h)            See that the books, reports, statements, certificates and all other documents and records required by law are properly kept and filed.

 

(i)             Exhibit at all reasonable times to proper persons on terms provided by law on proper application, the By-Laws, the share register and minutes of proceedings of the shareholders and directors of the Corporation.

 

(j)             In general, perform all duties incident to the office of Secretary and any other duties as from time to time may be assigned to him or her by the Board of Directors.

 

In case of the absence or disability of the Secretary or his or her refusal or neglect to act, the Assistant Secretary, or if there be none, the Treasurer, acting as Assistant Secretary, may perform all of the functions of the Secretary.  In the absence or inability to act, or refusal or neglect to act of the Secretary, the Assistant Secretary and Treasurer, any person authorized by the President or Vice-Presidents, if any, or by the Board of Directors, may perform the functions of the Secretary.

 

Assistant Secretary

 

5.06         At the request of the Secretary, or in his or her absence or disability, the Assistant Secretary shall perform all the duties of the Secretary, and when so acting, shall have all the powers of, and be subject to all the restrictions on, the Secretary.  The Assistant Secretary shall perform all other duties as from time to time may be assigned to him or her by the Board of Directors, or the Secretary.

 

Treasurer

 

5.07         The Treasurer shall:

 

(a)            Have charge and custody of, and be responsible for, all funds and securities of the Corporation, and deposit all funds in the name of the Corporation in banks, trust companies or other depositories as shall be selected by the Board of Directors.

 

(b)            Receive, and give receipt for, moneys due and payable to the Corporation from any source whatever.

 

(c)            Disburse, or cause to be disbursed, the funds of the Corporation as may be directed by the Board of Directors, taking proper vouchers for the disbursements.

 

(d)            Keep and maintain adequate and correct accounts of the Corporation’s properties and business transactions including account of its assets, liabilities, receipts, disbursements, gains, losses, capital, surplus and shares.  Any surplus, including earned surplus, paid-in surplus and surplus arising from a reduction of stated capital, shall be classified according to source and shown in a separate account.

 


 

(e)            Exhibit at all reasonable times the books of account and records of the Corporation to any director, or to proper persons on terms as are provided by law, on proper application during business hours at the office of the Corporation where the books and records are kept.

 

(f)             When and as requested, render to the President and directors accounts of all his or her transactions as Treasurer and of the financial condition of the Corporation.

 

(g)            On the written request of any shareholder of the Corporation, and within fourteen days after the request, mail to the shareholder the then latest annual balance sheet and income statement of the Corporation.  The financial statements shall have been prepared in accordance with generally accepted accounting principles by an independent public or certified public accountant.

 

(h)            Give to the Corporation a bond, if required by the Board of Directors in a sum, and with one or more sureties, or a surety company satisfactory to the Board, for the faithful performance of the duties of the office of Treasurer and for the restoration to the Corporation, in case of his or her death, resignation, retirement or removal from office, of all books, papers, vouchers, money and other property of whatever kind in his or her possession or under his or her control belonging to the Corporation.

 

(i)             In general, perform all the duties incident to the office of Treasurer and all other duties as from time to time may be assigned to him or her by the Board of Directors.

 

In case of the absence or disability of the Treasurer or his or her refusal or neglect to act, the Assistant Secretary or the Secretary acting as Assistant Treasurer, may perform all of the functions of the Treasurer.  In the absence or inability to act, or refusal or neglect to act, of both the Treasurer and the Secretary, any person authorized by the President or Vice-Presidents, if any, or by the Board of Directors may perform the functions of the Treasurer.

 

Assistant Treasurer

 

5.08         The Assistant Treasurer, if required so to do by the Board of Directors, shall respectively give bonds for the faithful discharge of his or her duties, in a sum, and with sureties that the Board of Directors shall require.  At the request of the Treasurer, or in his or her absence or disability, the Assistant Treasurer shall perform all the duties of the Treasurer, and when so acting, shall have all the powers of, and be subject to all the restrictions on, the Treasurer.  The Assistant Treasurer shall perform all other duties as from time to time may be assigned to him or her by the Board of Directors or the Treasurer.

 

Removal and Resignation

 

5.09         Any officer or agent may be removed by the Board of Directors whenever, in the Board’s judgment, the best interests of the Corporation will be served by the removal; provided, however, that the removal shall be without prejudice to the contract rights, if any, of the person removed.  Any officer may resign at any time by giving written notice to the Board of Directors or to the President or to the Secretary of the Corporation.  Any resignation is to take effect on the date the notice of resignation is received unless a later time is specified in then notice.  Unless

 



 

otherwise specified in the notice, the acceptance of the resignation is not necessary to make it effective.

 

Vacancies

 

5.10         If the office of the President, Vice-President, Secretary or Treasurer becomes vacant by reason of death, resignation, removal or otherwise, the Board of Directors shall elect a successor who is to hold office for the unexpired term and until his or her successor is elected.

 

Salaries

 

5.11         The salaries of all officers of the Corporation shall be fixed by the Board of Directors.  No officer shall be ineligible to receive a salary as officer by reason of the fact that he or she is also a Director of the Corporation and receiving compensation as Director.

 

ARTICLE SIX
ISSUANCE AND TRANSFER OF SHARES

 

Classes and Series of Shares

 

6.01         Subject to the provisions of its Articles of Incorporation, the Corporation may issue one or more classes or series of shares, or both, any of which classes or series may consist of shares with designations, preferences, qualifications, privileges, limitations, options, conversion rights and such special or relative rights as are stated in the Articles of Incorporation.  All shares shall have the conversion, redemption and other rights, preferences, qualifications, limitations and restrictions as are stated in the Articles of Incorporation.

 

Form and Contents of Share Certificates

 

6.02         The interest of each shareholder of the Corporation shall be evidenced by certificates for shares of stock.  The certificates shall be in the form and style, printed or otherwise, as the Board of Directors may designate, and each certificate shall state all of the following facts:

 

(a)            That the Corporation is organized under the laws of the State of Michigan;

 

(b)            The name of the person to whom the certificate is issued;

 

(c)            The number and class of shares and the designation of the series, if any, which the certificate represents.

 

Signature

 

6.03         Each share certificate shall be signed by the President or a Vice-President of the Corporation and also may be signed by its Secretary or Assistant Secretary or other appropriate corporate officer.  The signatures of officers may be facsimiles if the certificate is countersigned by a transfer agent or registered by a registrar other than the corporation itself or its employee.

 



 

Facsimile signatures remain valid after any officer ceases to hold his or her position, and the certificate may be subsequently issued by the Corporation.

 

Consideration

 

6.04         Unless the Articles of Incorporation reserve the power to the shareholders, shares may be issued for consideration authorized by the Board of Directors.

 

Form of Payment

 

6.05         The consideration for the issuance of shares may be paid, in whole or in part, by any tangible or intangible property or benefit to the Corporation, including cash, promissory notes, services performed, contracts for services to be performed or other securities of the Corporation.

 

Subscriptions for Shares

 

6.06         Unless the subscription agreement provides otherwise, subscriptions for shares, regardless of the time when made, shall be paid in full at the time, or in installments and at the times specified by the Board of Directors.  All calls for payments on subscriptions shall carry the same terms with regard to all shares of the same class.

 

Transfers

 

6.07         (a)            Transfers of shares of the capital stock of the Corporation shall be made only on the books of the Corporation by the registered owner of the shares, or by his or her duly authorized attorney, with a transfer clerk of transfer agent appointed as provided in accordance with these By-Laws, and on surrender of the certificate or certificates for the shares properly endorsed and with all taxes, if any, paid.

 

(b)            The person in whose name shares of stock stand on the books of the Corporation is deemed by the Corporation to be the owner of the shares for all purposes.  However, if any transfer of shares is made only for the purpose of furnishing collateral security, and that fact is made known to the Secretary of the Corporation or to the Corporation’s transfer clerk or transfer agent, the entry of the transfer shall record that fact.

 

Transfer Agents and Registrars

 

6.08         The Board of Directors may appoint one or more transfer agents and one or more registrars which shall be an incorporated bank or trust company, either domestic or foreign.

 

Replacement Certificates

 

6.09         On request of the holder, the Corporation shall issue a new certificate if the holder claims that the certificate has been lost, destroyed or wrongfully taken; however, the Corporation may require that the holder post an indemnity bond to protect against any claim that may be asserted on account of the alleged lost or destroyed certificate.  If the owner fails to notify the Corporation within a reasonable time of the fact of the loss or alleged destruction or theft and if

 



 

the Corporation registers a transfer of the shares represented by the certificate before receiving the notification, the owner is precluded from asserting any claim against the Corporation for registering the transfer of any claim to a new certificate.

 

Fractional Shares

 

6.10         The Corporation, with the approval of the Board of Directors, may issue certificates for fractions of a share if necessary to effect share transfers, share distributions or a reclassification, merger, consolidation or reorganization that entitles the holders, in proportion to their fractional holdings, to exercise voting rights, receive dividends and participate in liquidating distributions.  As an alternative, the Corporation, with the approval of the Board of Directors, may pay in cash the fair value of fractions of a share as of the time when those entitled to receive the fractions are determined.  In the alternative, the Corporation, with the approval of the Board of Directors, may issue scrip in registered or bearer form over the manual or facsimile signature of an officer of the Corporation or of its agent, exchangeable, as provided in the scrip, for full shares.  However, the scrip does not entitle the holder to any right of a shareholder, except as provided in the scrip.  The scrip shall be issued subject to the condition that it becomes void, if not exchanged for certificates representing full shares, before a specified date.  The scrip may be subject to the condition that the shares for which the scrip is exchangeable may be sold by the Corporation and the proceeds be distributed to the holders of the scrip or subject to any other condition which the Board of Directors may determine.  The Corporation may provide reasonable opportunity for persons entitled to fractions of a share or scrip to sell them or to purchase additional fractions of a share or scrip needed to acquire a full share.

 

ARTICLE SEVEN
DIVIDENDS

 

Dividends

 

7.01         (a)            Dividends may be declared by the Board of Directors and paid out of any funds legally available for the payment of dividends and in any manner the Board of Directors deems proper, subject to the conditions and limitations imposed by law and the Articles of Incorporation of the Corporation.

 

(b)            Before making any distribution of profits, there may be set aside out of the net profits of the Corporation the sum or sums that the Directors from time to time, in their absolute discretion, may deem expedient as a reserve fund to meet contingencies, for equalizing dividends, for maintaining any property of the Corporation or for any other purpose.  Any profits of any year not distributed as dividends are to be deemed to have been thus set apart until otherwise disposed of by the Board of Directors.

 

Record Date for Dividends or Rights

 

7.02         The Board of Directors may fix, in advance, a date as the record date for the determination of shareholders entitled to receive dividends.  However, the record date fixed by the Board shall not be more than sixty, nor less than ten, days before the date of the shareholders’ meeting.  If the record date is not fixed by the Board of Directors, the record date is the date the Board authorizes the distribution.

 



 

ARTICLE EIGHT
EXECUTION OF INSTRUMENTS AND DEPOSIT OF FUNDS

 

Authority for Execution of Instruments

 

8.01         The Board of Directors, except as otherwise provided in these By-Laws, may authorize any officer or officers, agent or agents, to enter into any contract or execute and deliver any instrument in the name of and on behalf of the Corporation.  The authority may be general or confined to specific instances.  Unless authorized in accordance with these By-Laws, no officer, agent or employee shall have any power or authority to bind the Corporation by any contract or engagement or to pledge its credit or to render it liable for any sum of money or for any purpose.

 

Execution of Instruments

 

8.02         Unless otherwise specifically determined by the Board of Directors or otherwise required by law, formal contracts of the Corporation, promissory notes, mortgages and other evidences of indebtedness of the Corporation, and other corporate instruments or documents, and certificates of shares of stock owned by the Corporation, shall be executed, signed or endorsed by the President or any Vice-President and by the Secretary or the Treasurer, or any Assistant Secretary or Assistant Treasurer, and may have the corporate seal, if any, affixed.

 

Bank Accounts and Deposits

 

8.03         All funds of the Corporation shall be deposited from time to time to the credit of the Corporation with banks, bankers, trust companies or other depositories as the Board of Directors may select or as may be selected by any officer or officers, agent or agents of the Corporation to whom the power may be delegated from time to time by the Board of Directors.

 

Endorsement Without Countersignature

 

8.04         Endorsements for deposit of commercial paper to the credit of the Corporation in any of its duly authorized depositories may be made without countersignature by the President or any Vice-President, or the Treasurer or any Assistant Treasurer, or by any other officer or agent of the Corporation to whom the Board of Directors, by resolution, shall have delegated the power.

 

Signing of Checks and Drafts

 

8.05         Except as otherwise provided in these By-Laws, all checks, drafts or other order for payment of money, notes or other evidences of indebtedness, issued in the name of or payable to the Corporation, shall be signed or endorsed by those person or persons and in the manner as shall be determined from time to time by resolution of the Board of Directors.

 



 

ARTICLE NINE
FISCAL YEAR

 

Designation

 

9.01         The fiscal year of the Corporation begins on the first day of July in each year unless otherwise provided by the Board of Directors.

 

ARTICLE TEN
CORPORATE RECORDS, REPORTS AND SEAL

 

10.01       The Corporation shall keep at its registered office a book of minutes of all meetings of shareholders and Board of Directors, books of account and a share register.  The book of minutes shall note the time and place of each meeting, whether it was regular or special and, if special, how it was called, the notice given, the names of the Directors present at a Board meeting, the number of shares represented at a shareholders’ meeting and the proceedings of the meeting.  The books of account shall cover the Corporation’s property and business transactions, including accounts of its assets, liabilities, receipts, disbursements, gains, losses, capital, surplus and shares.  The share register shall contain the names and addresses of each shareholder, the number and classes of shares held by each, the number and date of certificates issued to each and the number and date of cancellation of every certificate surrendered for cancellation.

 

Inspection of Records by Shareholders

 

10.02       All books, records and lists of shareholders of the Corporation shall be open to inspection and examination during normal business hours for all proper purposes by every shareholder of the Corporation or his or her duly authorized agent or attorney on written request by the shareholder in compliance with the statutory requirements.

 

Inspection of Records by Directors

 

10.03       Every Director has the absolute right at any reasonable time to inspect all books, records, documents of every kind and the physical properties of the Corporation and of its subsidiary corporations, domestic or foreign.  Inspection by a Director may be made in person or by the Director’s agent or attorney, and the right of inspection includes the right to make extracts.

 

Financial Reports to Shareholders

 

10.04       The Board of Directors shall cause an annual financial report to be sent to the shareholders not later than four months after the close of its fiscal year.  The report shall contain financial statements covering in detail its assets and liabilities, its profits and losses from its business operations and all other information required by law.

 



 

Seal

 

10.05       The Board of Directors may adopt, use and subsequently alter a corporate seal.  However, use of a corporate seal or a facsimile is not required and does not affect the validity of any instrument.

 

ARTICLE ELEVEN
AMENDMENT OF BY-LAWS

 

Adoption, Amendment and Repeal

 

11.01       These By-Laws may be altered, amended or repealed, and new By-Laws may be adopted by the vote of a majority of the Board of Directors or the shareholders.  However, no By-Law adopted by the shareholders may be altered or repealed by the Board of Directors.

 



 

DIPLOMAT PHARMACY, INC.
RESOLUTIONS OF BOARD OF DIRECTORS
BY WRITTEN CONSENT

 


 

The undersigned, being all of the members of the Board of Directors of Diplomat Pharmacy, Inc., a Michigan corporation, do hereby adopt the following resolution by written consent:

 

RESOLVED, that effective January 1, 2005 the Bylaws of the corporation are amended to provide that there shall be at least three (3) members on the Board of Directors of the corporation.

 

EXECUTED effective the 1st day of January, 2005.

 

 

 

/s/ Philip R. Hagerman

 

Philip R. Hagerman

 

 

 

/s/ Jeffrey M. Rowe

 

Jeffrey M. Rowe

 

 

 

/s/ Mark Steven Chaffee

 

Mark Steven Chaffee

 



 

AMENDMENT TO THE BYLAWS
OF
DIPLOMAT PHARMACY, INC.

 

Adopted Effective:  January 1, 2005

 

Section 3.04 of the Bylaws of Diplomat Pharmacy, Inc. is hereby amended to provide as follows:

 

Number and Term of Directors

 

3.04 The number of Directors of this Corporation shall be three (3) or more in number.  Each Director shall be elected at the annual meeting of the shareholders to hold office until the succeeding annual meeting.  A Director holds office for the term for which he or she is elected and until his or her successor is elected and qualified, or until his or her resignation or removal.

 




Exhibit 4.2

 

EXECUTION VERSION

 

DIPLOMAT PHARMACY, INC.

 

FIRST AMENDED AND RESTATED INVESTORS’ RIGHTS AGREEMENT

 



 

TABLE OF CONTENTS

 

 

 

 

Page

 

 

 

 

1.

GENERAL

1

 

1.1

DEFINITIONS

1

 

 

 

 

2.

RESTRICTIONS ON TRANSFER; REGISTRATION

4

 

2.1

RESTRICTIONS ON TRANSFER

4

 

2.2

DEMAND REGISTRATION

6

 

2.3

PIGGYBACK REGISTRATIONS

8

 

2.4

FORM S-3 REGISTRATION

9

 

2.5

EXPENSES OF REGISTRATION

11

 

2.6

OBLIGATIONS OF THE COMPANY

11

 

2.7

TERMINATION OF REGISTRATION RIGHTS

14

 

2.8

FURNISHING INFORMATION

14

 

2.9

INDEMNIFICATION

14

 

2.10

ASSIGNMENT OF REGISTRATION RIGHTS

16

 

2.11

AMENDMENT OF REGISTRATION RIGHTS

17

 

2.12

LIMITATION ON SUBSEQUENT REGISTRATION RIGHTS

17

 

2.13

“MARKET STAND-OFF” AGREEMENT

17

 

2.14

AGREEMENT TO FURNISH INFORMATION

17

 

2.15

RULE 144 REPORTING

18

 

2.16

CHANGES IN COMMON STOCK OR PREFERRED STOCK

18

 

 

 

 

3.

COVENANTS OF THE COMPANY

18

 

3.1

BASIC FINANCIAL INFORMATION AND REPORTING

18

 

3.2

INSPECTION RIGHTS

20

 

3.3

CONFIDENTIALITY OF RECORDS

20

 

3.4

MEETINGS OF DIRECTORS

21

 

3.5

EXPENSES OF DIRECTORS; REMOTE PARTICIPATION BY DIRECTORS AND OBSERVERS

21

 

3.6

PUBLICITY

21

 

3.7

ASSIGNMENT OF RIGHT OF FIRST REFUSAL

21

 

3.8

RESTRICTIVE AGREEMENTS PROHIBITED

22

 

3.9

TERMINATION OF COVENANTS

22

 

 

 

 

4.

PARTICIPATION RIGHTS

22

 

4.1

SUBSEQUENT OFFERINGS

22

 

4.2

EXERCISE OF RIGHTS

22

 

4.3

ISSUANCE OF EQUITY SECURITIES TO OTHER PERSONS

22

 

4.4

TERMINATION AND WAIVER OF PARTICIPATION RIGHTS

23

 

4.5

AMENDMENT AND WAVIER

23

 

4.6

TRANSFER AND ALLOCATION OF PARTICIPATION RIGHTS

23

 

4.7

EXCLUDED SECURITIES

23

 

 

 

5.

MISCELLANEOUS

24

 

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5.1

GOVERNING LAW; CONSENT TO JURISDICTION

24

 

5.2

SUCCESSORS AND ASSIGNS

24

 

5.3

ENTIRE AGREEMENT

25

 

5.4

SEVERABILITY

25

 

5.5

AMENDMENT AND WAIVER

25

 

5.6

DELAYS OR OMISSIONS

26

 

5.7

NOTICES

26

 

5.8

ATTORNEYS’ FEES

26

 

5.9

TITLES AND SUBTITLES

26

 

5.10

AGGREGATION OF STOCK

26

 

5.11

COUNTERPARTS

27

 

5.12

SPECIFIC PERFORMANCE

27

 

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DIPLOMAT PHARMACY, INC.

 

FIRST AMENDED AND RESTATED INVESTORS’ RIGHTS AGREEMENT

 

THIS FIRST AMENDED AND RESTATED INVESTORS’ RIGHTS AGREEMENT (this “Agreement” ) is entered into as of March 31, 2014 by and among DIPLOMAT PHARMACY, INC., a Michigan corporation (the “Company” ), the holders of the Company’s Series A Preferred Stock listed in Exhibit A to this Agreement (collectively, the “Existing Investors” and each, without distinction among them, an “Existing Investor” ), the purchasers of the Company’s Series A Preferred Stock listed in Exhibit B to this Agreement (collectively, the “New Investors” and each, without distinction among them, a “New Investor” and, together with the Existing Investors, the “Investors” ) and each of the stockholders listed on Exhibit C hereto, each of which is referred to in this Agreement as a “ Key Holder.

 

RECITALS

 

The Company, the Key Holders and the Existing Investors are parties to an Investors’ Rights Agreement dated as of January 23, 2014 (the “Prior Agreement” ).

 

The New Investors are holders of the Company’s Series A Preferred Stock, par value $0.001 per share (the “Preferred Stock” ), pursuant to that certain Series A Preferred Stock Purchase Agreement of even date herewith (the “Purchase Agreement” ).

 

The obligations in the Purchase Agreement are conditioned upon the execution and delivery of this Agreement.

 

The Key Holders are parties to this Agreement solely for purposes of Sections 1, 2 (other than Sections 2.2, 2.4, 2.11 and 2.12) and 5.

 

In connection with the consummation of the sale and purchase of the Preferred Stock, the Company, the Key Holders and the Existing Investors desire to amend and restate the Prior Agreement in its entirety as set forth herein and, with the New Investors, enter into this Agreement in order to grant registration, information rights and other rights to the Investors as set forth below.

 

NOW, THEREFORE, in consideration of the premises and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree hereto as follows:

 

1.                                       GENERAL.

 

1.1                                DEFINITIONS.

 

Capitalized terms not otherwise defined in this Agreement, shall have the following meanings:

 

(a)                                  Affiliate ” means, with respect to any specified Person, any other Person who or which, directly or indirectly, controls, is controlled by, or is under common control with

 



 

such specified Person, including without limitation any partner, officer, director, manager or employee of such Person, and, with respect to a T. Rowe Price Investor, other funds and accounts managed by T. Rowe Price, and with respect to a Janus Investor, other funds and accounts managed by Janus.

 

(b)                                  Board ” means the Board of Directors of the Company.

 

(c)                                   Change in Control ” means a sale of all or substantially all of the assets of the Company, or a merger, acquisition or sale of voting control of the Company in which the stockholders of the Company immediately prior to such transaction do not own a majority of the outstanding equity interests of the surviving entity or the Company, as the case may be, immediately following such transaction.

 

(d)                                  Charter ” means the Company’s Second Amended and Restated Articles of Incorporation in the form contemplated by the Purchase Agreement, as it may be amended and restated from time to time as permitted thereby.

 

(e)                                   Common Stock ” means the Company’s common stock, par value $1.00 per share.

 

(f)                                    Equity Securities ” means (i) any Common Stock, Preferred Stock or other security of the Company, (ii) any security convertible, with or without consideration, into any Common Stock, Preferred Stock or other security (including any option to purchase such a convertible security), (iii) any security carrying any warrant or right to subscribe to or purchase any Common Stock, Preferred Stock or other security, or (iv) any such warrant or right.

 

(g)                                  Exchange Act ” means the Securities Exchange Act of 1934, as amended.

 

(h)                                  Form S-3 ” means such form under the Securities Act as in effect on the date hereof or any successor or similar registration form under the Securities Act subsequently adopted by the SEC which permits inclusion or incorporation of substantial information by reference to other documents filed by the Company with the SEC.

 

(i)                                     Holder ” means any person owning of record Registrable Securities that have not been sold to the public or any assignee of record of such Registrable Securities in accordance with Section 2.10 hereof.

 

(j)                                     Initial Offering ” means the Company’s first firm commitment underwritten public offering of its Common Stock registered under the Securities Act.

 

(k)                                  “Janus” means Janus Capital Management LLC.

 

(l)                                     “Janus Investor” means those Investors that are advisory clients of Janus.

 

(m)                              “Key Holder Registrable Securities” means, solely with respect to the piggy back registration rights provided in Section 2.3 below, (a) the outstanding shares of Common Stock held by the Key Holders, and (b) any Common Stock of the Company issued as (or issuable upon the conversion or exercise of any warrant, right or other security which is

 

2



 

issued as) a dividend or other distribution with respect to, or in exchange for or in replacement of, such above-described securities.

 

(n)                                  Person ” means any individual, corporation, partnership, trust, limited liability company, association or other entity.

 

(o)                                  Proprietary Rights ” means patents, trademarks, trade names, know-how, rights in trade dress and packaging, and shop rights, copyrights, inventions, trade secrets, service marks and all other intellectual property rights, in each case whether registered or not and in each case wherever such rights exist throughout the world, and including the right to recover for any past infringement.

 

(p)                                  Qualified Public Offering ” means a firmly underwritten public offering of the Common Stock pursuant to a registration statement filed with the Securities and Exchange Commission, and declared effective under the Securities Act of 1933, as amended, and not subsequently withdrawn, in which the gross cash proceeds to the Company (before underwriting discounts, commissions and fees) are at least Thirty-Five Million Dollars ($35,000,000).

 

(q)                                  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 or document.

 

(r)                                   Registrable Securities ” means (a) Common Stock, (b) Common Stock issued or issuable upon conversion of Preferred Stock, (c) Common Stock issued or issuable upon conversion of Preferred Stock that is issued or issuable upon exercise of any Warrant, (d) Common Stock issued or issuable upon exercise of any Warrant, (e) any Shares issued (or issuable upon the conversion or exercise of any Warrant, right or other security which is issued) as a dividend or other distribution with respect to, or in exchange for or in replacement of, the securities described in the foregoing clauses (a), (b), (c) or (d), in the case of any of (a) through (e) above, now owned or hereafter acquired by the Investors and/or their permitted assigns and (f) the Key Holder Registrable Securities, provided, however , that Key Holder Registrable Securities shall not be deemed Registrable Securities and the Key Holders shall not be deemed “Holders” for the purposes of Sections 2.2, 2.4, 2.11 and 2.12 and Sections 3 and 4.  Notwithstanding the foregoing, Registrable Securities shall not include any securities sold by a person to the public either pursuant to a registration statement or Rule 144 or sold in a private transaction in which the transferor’s rights under Section 2 of this Agreement are not assigned.

 

(s)                                    Registrable Securities then outstanding ” means the shares of the Company’s Common Stock that are Registrable Securities that are either: (a) then issued and outstanding or (b) issuable upon the exercise or conversion of exercisable or convertible securities including, without limitation, Preferred Stock.

 

(t)                                     Registration Expenses ” shall mean all expenses incurred by the Company in complying with Sections 2.2, 2.3 and 2.4 hereof, including, without limitation, all registration and filing fees, printing expenses, fees and disbursements of counsel for the Company, reasonable fees and disbursements not to exceed thirty-five thousand dollars ($35,000) of a single special counsel for the selling Holders, blue sky fees and expenses and the

 

3



 

expense of any special audits incident to or required by any such registration (but excluding the compensation of regular employees of the Company which shall be paid in any event by the Company).

 

(u)                                  Requisite Holders ” shall mean the holders of two thirds of the Registrable Securities then outstanding held by the Investors.

 

(v)                                  Rule 144 ” means Rule 144, as promulgated under the Securities Act, or any similar or analogous rule promulgated under the Securities Act.

 

(w)                                SEC ” or “ Commission ” means the Securities and Exchange Commission.

 

(x)                                  Securities Act ” shall mean the Securities Act of 1933, as amended.

 

(y)                                  Selling Expenses ” shall mean all stock transfer taxes, underwriting discounts and selling commissions applicable to the sale of Registrable Securities.

 

(z)                                   Shares ” shall mean the Preferred Stock and the Common Stock held by the Investors and their permitted assigns.

 

(aa)                           Special Registration Statement ” shall mean (i) a registration statement relating to any employee benefit plan, (ii) with respect to any corporate reorganization or transaction under Rule 145 of the Securities Act, including any registration statements related to the resale of securities issued in such a transaction, or (iii) a registration related to stock issued upon conversion of debt securities.

 

(bb)                           Subsidiary ” shall mean, with respect to any entity, any entity of which securities or other ownership interests having ordinary voting power to elect a majority of the board of directors or other persons performing similar functions are owned directly or indirectly by such entity or any Subsidiary of such entity or by such entity and one or more Subsidiaries of such entity.

 

(cc)                             T. Rowe Price ” shall mean T. Rowe Price Associates, Inc. and any successor or affiliated investment advisor to the T. Rowe Price Investors.

 

(dd)                           T. Rowe Price Investors ” shall mean those Investors that are advisory clients of T. Rowe Price.

 

2.                                       RESTRICTIONS ON TRANSFER; REGISTRATION.

 

2.1                                RESTRICTIONS ON TRANSFER.

 

(a)                                  Each party hereto agrees not to make any disposition of all or any portion of the Shares or Registrable Securities unless and until:

 

4


 

(i)                                     There is then in effect a registration statement under the Securities Act covering such proposed disposition and such disposition is made in accordance with such registration statement; or

 

(ii)                                 (A) The transferee has agreed in writing to be bound by the terms of this Agreement, (B) such party shall have notified the Company of the proposed disposition and shall have furnished the Company with a detailed statement of the circumstances surrounding the proposed disposition, and (C) if reasonably requested by the Company, such party shall have furnished the Company with an opinion of counsel, reasonably satisfactory to the Company (it being understood that (i) internal securities counsel of T. Rowe Price shall be deemed acceptable for transfers by any T. Rowe Price Investors and (ii) internal securities counsel of Janus shall be deemed acceptable for transfers by any Janus Investors) that such disposition will not require registration of such shares under the Securities Act and applicable state and foreign securities law.  Notwithstanding the foregoing, no such opinion of counsel shall be required in connection with any transfer of shares of Registrable Securities made in compliance with Rule 144.  After its Initial Offering, the Company will not require the transferee to be bound by the terms of this Agreement.

 

Notwithstanding the provisions of clauses (i) and (ii) above, no such registration statement or opinion of counsel shall be necessary for a transfer by a party hereto that is (A) a partnership transferring to its partners or former partners in accordance with partnership interests, (B) a corporation transferring to a wholly-owned subsidiary or a parent corporation that owns all of the capital stock of such corporation, (C) a limited liability company transferring to its members or former members in accordance with their interest in the limited liability company, (D) an individual transferring to such individual’s family member or trust for the benefit of such individual, (E) transfers pursuant to a merger or reorganization of a U.S. registered mutual fund, (F) transfers by any T. Rowe Price Investor to any Affiliate or any other entity managed by a registered investment advisor, or (G) transfers by any Janus Investor to any Affiliate or any other entity managed by a registered investment advisor; provided , however , that in each case the transferee will be subject to the terms of this Agreement to the same extent as if he, she or it were an original party hereto.  Notwithstanding the provisions of clauses (i) and (ii) above or anything to the contrary in this Agreement, no party hereto shall make any disposition of all or any portion of the Shares or Registrable Securities to any competitor of the Company without prior written consent from the Company, such consent not to be unreasonably withheld, conditioned or delayed.

 

(b)                                  Each Investor shall be entitled to have a certificate, signed by, or in the name of the Company by the chairperson of the Board, vice-chairperson of the Board, president or a vice-president and which also may be signed by another officer of the Company, certifying the number of Shares or Registrable Securities owned by such Investor.  Each certificate representing Shares or Registrable Securities (unless otherwise permitted by the provisions of the Agreement) be stamped or otherwise imprinted with a legend substantially similar to the following (in addition to any legend required under applicable state securities laws):

 

THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED PURSUANT TO THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY STATE SECURITIES LAW.  NEITHER THIS SECURITY NOR ANY

 

5



 

PORTION HEREOF OR INTEREST HEREIN MAY BE SOLD, ASSIGNED, TRANSFERRED, PLEDGED OR OTHERWISE DISPOSED OF UNLESS THE SAME IS REGISTERED UNDER SAID ACT AND ANY APPLICABLE STATE SECURITIES LAW, OR UNLESS AN EXEMPTION FROM SUCH REGISTRATION IS AVAILABLE AND THE CORPORATION SHALL HAVE RECEIVED, AT THE EXPENSE OF THE HOLDER HEREOF, EVIDENCE OF SUCH EXEMPTION REASONABLY SATISFACTORY TO THE CORPORATION (WHICH MAY INCLUDE, AMONG OTHER THINGS, AN OPINION OF COUNSEL SATISFACTORY TO THE CORPORATION).

 

THE SALE, PLEDGE, HYPOTHECATION OR TRANSFER OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE IS SUBJECT TO THE TERMS AND CONDITIONS OF A CERTAIN INVESTORS’ RIGHTS AGREEMENT BY AND BETWEEN THE STOCKHOLDER AND THE CORPORATION.  COPIES OF SUCH AGREEMENT MAY BE OBTAINED UPON WRITTEN REQUEST TO THE SECRETARY OF THE CORPORATION.

 

(c)                                   The Company shall be obligated to reissue promptly unlegended certificates at the request of any holder thereof if such holder shall have obtained an opinion of counsel (which counsel may be counsel to the Company) reasonably acceptable to the Company (it being understood that internal securities counsel of T. Rowe Price or Janus, as applicable, shall be deemed acceptable) to the effect that the securities proposed to be disposed of may lawfully be so disposed of without registration, qualification or legend.

 

(d)                                  Any legend endorsed on an instrument pursuant to applicable state securities laws and the stop-transfer instructions with respect to such securities shall be removed upon receipt by the Company of an order of the appropriate blue sky authority authorizing such removal.

 

(e)                                   The Company shall keep its securities held by the Holders certificated physical form at least through the expiration or early release of the lock-up period as set forth in Section 2.13 below.

 

2.2                                DEMAND REGISTRATION.

 

(a)                                  Subject to the conditions of this Section 2.2, if the Company shall receive a written request from the Holders of not less than fifty percent (50%) of the Registrable Securities then outstanding (the “ Initiating Holders ”), that the Company file a registration statement under the Securities Act covering the registration of all or a portion of the Registrable Securities held by such Initiating Holders, then the Company shall, within thirty (30) days of the receipt thereof, give written notice of such request to all Holders, and subject to the limitations of this Section 2.2, the Company shall use its commercially reasonable efforts to effect as soon as practicable the registration under the Securities Act of all Registrable Securities that the Holders request to be registered.

 

(b)                                  If the Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part

 

6



 

of their request made pursuant to Section 2.2(a) or any request pursuant to Section 2.4 and the Company shall include such information in the written notice referred to in Section 2.2(a) or Section 2.4(a), as applicable.  In such event, the right of any Holder to include its Registrable Securities in such registration shall be conditioned upon such Holder’s participation in such underwriting and the inclusion of such Holder’s Registrable Securities in the underwriting to the extent provided herein.  All Holders proposing to distribute their securities through such underwriting shall enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by the Company.  Notwithstanding any other provision of this Section 2.2 or Section 2.4, if the managing underwriter or underwriters determine that the proposed number of securities to be underwritten would adversely affect the marketing of such securities, then the Company shall so advise all Holders of Registrable Securities which would otherwise be underwritten pursuant hereto, and the number of shares that may be included in such underwriting shall be allocated to the Holders of such Registrable Securities on a pro rata basis based on the number of Registrable Securities held by all such Holders (including the Initiating Holders); provided, however , that the number of shares of Registrable Securities to be included in such underwriting and registration shall not be reduced unless all securities of the Company other than Registrable Securities are first entirely excluded from such underwriting and registration.  Any Registrable Securities excluded or withdrawn from such underwriting shall be withdrawn from the registration.

 

(c)                                   The Company shall not be required to effect a registration pursuant to this Section 2.2:

 

(i)                                     prior to one hundred eighty (180) days following the effective date of the registration statement pertaining to the Initial Offering;

 

(ii)                                 after the Company has effected two (2) registrations pursuant to this Section 2.2, and such registrations have been declared or ordered effective;

 

(iii)                             if the Holders, together with the holders of any other securities of the Company entitled to inclusion in such registration, propose to sell Registrable Securities and such other securities (if any) at an aggregate price to the public of less than Twenty-Five Million Dollars ($25,000,000);

 

(iv)                              during the period starting with the date of filing of, and ending on the date ninety (90) days following the effective date of, a non-Initial Offering registration statement, other than pursuant to a Special Registration Statement; provided , however , that the Company makes a reasonable good faith effort to effect such registration as soon thereafter as practicable;

 

(v)                                  if within thirty (30) days of receipt of a written request from the Initiating Holders pursuant to Section 2.2(a), the Company gives notice to the Holders of the Company’s intention to file a registration statement for a public offering, other than pursuant to a Special Registration Statement, within ninety (90) days of the time of request;

 

(vi)                              if the Company shall furnish to the Holders requesting a registration statement pursuant to this Section 2.2, a certificate signed by the Chairman of the

 

7



 

Board stating that in the good faith judgment of the Board, it would be detrimental to the Company and its stockholders for such registration statement to be effected at such time, in which event the Company shall have the right to defer such filing for a period of not more than one hundred twenty (120) days after receipt of the request of the Initiating Holders; provided, however, that such right to delay a request shall be exercised by the Company not more than once in any twelve (12) month period; and provided further that the Company shall not register any securities for the account of itself or any other stockholder during such one hundred twenty (120) day period;

 

(vii)                          if the Company and the Initiating Holders are unable to obtain the commitment of an underwriter to firmly underwrite the offer; or

 

(viii)                      if the Initiating Holders propose to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 pursuant to a request made pursuant to Section 2.4 below.

 

In addition to the foregoing, the Company shall not be obligated to effect, or to take any action to effect, any such registration statement pursuant to this Section 2.2 in any particular jurisdiction in which the Company would be required to execute a general consent to service of process in effecting such registration, qualification or compliance, unless the Company is already subject to service in such jurisdiction and except as may be required by the Securities Act.

 

2.3                                PIGGYBACK REGISTRATIONS.

 

The Company shall notify all Holders of Registrable Securities in writing at least thirty (30) days prior to the filing of any registration statement under the Securities Act covering the sale of the Company’s securities to the public, whether for its own account or for the account of other security holders or both (but excluding Special Registration Statements) and will afford each such Holder an opportunity to include in such registration statement all or part of such Registrable Securities held by such Holder.  Each Holder desiring to include in any such registration statement all or any part of the Registrable Securities held by it shall, within twenty (20) days after such Holder receives the above-described notice from the Company, so notify the Company in writing, and the Company will use its commercially reasonable efforts to cause the Registrable Securities so requested by such Holder to be included in such registration statement.  Such notice shall state the intended method of disposition of the Registrable Securities by such Holder.  If a Holder decides not to include all of its Registrable Securities in any registration statement thereafter filed by the Company, such Holder shall nevertheless continue to have the right to include any Registrable Securities in any subsequent registration statement or registration statements as may be filed by the Company with respect to offerings of its securities, all upon the terms and conditions set forth herein.

 

(a)                                  Underwriting.  If the registration statement under which the Company gives notice under this Section 2.3 is for an underwritten offering, the Company shall so advise the Holders of Registrable Securities.  In such event, the right of any such Holder to be included in a registration pursuant to this Section 2.3 shall be conditioned upon such Holder’s participation in such underwriting and the inclusion of such Holder’s Registrable Securities in the underwriting to the extent provided herein.  All Holders proposing to distribute their

 

8



 

Registrable Securities through such underwriting shall enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting by the Company.  Notwithstanding any other provision of this Agreement, if the managing underwriter or underwriters determine in good faith that the proposed number of securities to be underwritten would adversely affect the marketing of such securities, then the number of shares that may be included in the underwriting shall be allocated, first, to the Company; second, to the Holders (including the Key Holders) on a pro rata basis based on the total number of Registrable Securities held by such Holders; third, to any stockholder of the Company (other than a Holder) on a pro rata basis; provided, however, that no such reduction shall reduce the amount of securities of the selling Holders included in the registration below twenty-five percent (25%) of the total amount of securities included in such registration without the written consent of the holders of a majority of the Registrable Securities then outstanding, including the majority such Registrable Securities held by the Investors, unless such offering is a Qualified Public Offering and such registration does not include shares of any other selling stockholders, in which event any or all of the Registrable Securities of the Holders may be excluded in accordance with the immediately preceding clause.  In no event will shares of any other selling stockholder be included in such registration that would reduce the number of shares which may be included by the Holders without the written consent of Holders of not less than a majority in interest of the Registrable Securities proposed to be sold in the offering, including the majority in interest of such Registrable Securities held by the Investors, if any.  If any Holder disapproves of the terms of any such underwriting, such Holder may elect to withdraw therefrom by written notice to the Company and the managing underwriter, delivered at least ten (10) business days prior to the effective date of the registration statement.  Any Registrable Securities excluded or withdrawn from such underwriting shall be excluded and withdrawn from the registration.  For any Holder which is a partnership or corporation, the partners, retired partners, members, retired members and stockholders of such Holder, or the estates and family members of any such partners, retired partners, members, retired members and stockholders and any trusts for the benefit of any of the foregoing persons shall be deemed to be a single “ Holder ,” and any pro rata reduction with respect to such “ Holder ” shall be based upon the aggregate amount of shares carrying registration rights owned by all entities and individuals included in such “ Holder ,” as defined in this sentence.

 

(b)                                  Right to Terminate Registration.  The Company shall have the right to terminate or withdraw any registration initiated by it under this Section 2.3 prior to the effectiveness of such registration whether or not any Holder has elected to include securities in such registration, and shall promptly notify any Holder that has elected to include shares in such registration of such termination or withdrawal.  The Registration Expenses of such withdrawn registration shall be borne by the Company in accordance with Section 2.5 hereof.

 

2.4                                FORM S-3 REGISTRATION.

 

If at any time the Company shall receive from any Holder or Holders of Registrable Securities a written request or requests that the Company file a registration on Form S-3 or any similar short-form registration statement and any related qualification or compliance with respect to all or a part of the Registrable Securities owned by such Holder or Holders, the Company will use its commercially reasonable efforts to:

 

9



 

(a)                                  promptly give written notice of the proposed registration, and any related qualification or compliance, to all other Holders of Registrable Securities; and

 

(b)                                  as soon as practicable, effect such registration and all such qualifications and compliances as may be so requested and as would permit or facilitate the sale and distribution of all or such portion of such Holder’s or Holders’ Registrable Securities as are specified in such request, together with all or such portion of the Registrable Securities of any other Holder or Holders joining in such request as are specified in a written request given within fifteen (15) days after receipt of such written notice from the Company; provided, however , that the Company shall not be obligated to effect any such registration, qualification or compliance pursuant to this Section 2.4 if any of the following apply:

 

(i)                                     if such request is made prior to one hundred eighty (180) days following the effective date of the registration statement pertaining to the Initial Offering; or

 

(ii)                                 if Form S-3 is not available for such offering by the Holders; or

 

(iii)                             if the Holders, together with the holders of any other securities of the Company entitled to inclusion in such registration, propose to sell Registrable Securities and such other securities (if any) at an aggregate price to the public of less than Five Million Dollars ($5,000,000); or

 

(iv)                              if within thirty (30) days of receipt of a written request from any Holder or Holders pursuant to this Section 2.4, the Company gives notice to such Holder or Holders of the Company’s intention to make a public offering within one hundred twenty (120) days, other than pursuant to a Special Registration Statement; provided , that such Holders were permitted to register such shares as requested to be registered pursuant to Section 2.3 hereof ; or

 

(v)                                  if the Company shall furnish to the Holders a certificate signed by the Chairman of the Board stating that in the good faith judgment of the Board, it would be seriously detrimental to the Company and its stockholders for such Form S-3 registration to be effected at such time, in which event the Company shall have the right to defer the filing of the Form S-3 registration statement for a period of not more than one hundred twenty (120) days after receipt of the request of the Holder or Holders under this Section 2.4; provided , however, that such right to delay a request shall be exercised by the Company not more than once in any twelve (12) month period; and provided further that the Company shall not register any securities for the account of itself or any other stockholder during such one hundred twenty (120) day period; or

 

(vi)                              if the Company has, within the twelve (12) month period preceding the date of such request, already effected two (2) registrations on Form S-3 for the Holders pursuant to this Section 2.4.

 

In addition to the foregoing, the Company shall not be obligated to effect, or to take any action to effect, any such registration statement pursuant to this Section 2.4 in any particular jurisdiction in which the Company would be required to execute a general consent to service of process in effecting such registration, qualification or compliance, unless the Company is already subject to service in such jurisdiction and except as may be required by the Securities Act.

 

10



 

(c)                                   Subject to the foregoing, the Company shall use its commercially reasonable efforts to file a registration statement on Form S-3 to register the Registrable Securities so requested to be registered as soon as practicable after receipt of the requests of the Holders.  Whenever the Company is required by this Section 2.4 to use its commercially reasonable efforts to effect the registration of Registrable Securities, each of the procedures and requirements of Section 2.2 shall apply to such registration.  Registrations effected pursuant to this Section 2.4 shall not be counted as demands for registration or registrations effected pursuant to Sections 2.2.

 

2.5                                EXPENSES OF REGISTRATION.

 

Except as specifically provided herein, all Registration Expenses incurred in connection with any registration, qualification or compliance pursuant to Sections 2.2, 2.3 or 2.4 hereof shall be borne by the Company.  All Selling Expenses incurred in connection with any registrations hereunder shall be borne by the holders of the securities so registered pro rata on the basis of the number of shares so registered.  The Company shall not, however, be required to pay for expenses of any registration proceeding begun pursuant to Section 2.2 or 2.4, the request of which has been subsequently withdrawn by the Initiating Holders or the requesting Holder or Holders under Section 2.4, as the case may be, or because a sufficient number of Holders have withdrawn so that the minimum offering conditions set forth in Sections 2.2 and 2.4 are no longer satisfied, unless (a) the withdrawal is based upon material adverse information concerning the Company that is different from the information known or available (upon request from the Company or otherwise) to the Initiating Holders at the time of such request or (b) the Holders of at least a majority in interest of Registrable Securities then outstanding agree to forfeit their right to one requested registration pursuant to Section 2.2, in which event such right shall be forfeited by all Holders.  If the Holders are required to pay the Registration Expenses, such expenses shall be borne by the holders of securities (including Registrable Securities) requesting such registration in proportion to the number of shares for which registration was requested.  If the Company is required to pay the Registration Expenses of a withdrawn offering pursuant to clause (a) above, then the Holders shall not forfeit their rights to a demand registration pursuant to Section 2.2.

 

2.6                                OBLIGATIONS OF THE COMPANY.

 

Whenever required to effect the registration of any Registrable Securities, the Company shall, as expeditiously as reasonably possible, use its commercially reasonable efforts to:

 

(a)                                  Prepare and file with the SEC a registration statement with respect to such Registrable Securities and use its commercially reasonable efforts to cause such registration statement to become effective, and keep such registration statement effective until the earlier of ninety (90) days after the effective date of such registration statement (to be measured from the expiration of any lock-up period related to such registration, if applicable) or until the Holder or Holders have completed the distribution or sale of such Registrable Securities; provided, however , that at any time, upon written notice to the participating Holders and for a period not to exceed sixty (60) days thereafter (the “ Suspension Period ”), the Company may delay the filing or effectiveness of any registration statement or suspend the use or effectiveness of any registration statement (and the Initiating Holders hereby agree not to offer or sell any Registrable

 

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Securities pursuant to such registration statement during the Suspension Period) if the Company reasonably believes that the Company may, in the absence of such delay or suspension hereunder, be required under state or federal securities laws to disclose (i) any corporate development the disclosure of which could reasonably be expected to have a material adverse effect upon the Company or its stockholders, (ii) a potentially significant transaction or event involving the Company, or (iii) any negotiations, discussions, or proposals directly relating thereto.  No more than two (2) such Suspension Periods shall occur in any twelve (12) month period.  In the event that the Company shall exercise its suspension rights hereunder, the applicable time period during which the registration statement is to remain effective shall be extended by a period of time equal to the duration of the Suspension Period.  The Company shall not register any securities for its own account or that of any other stockholder during the Suspension Period other than pursuant to a Special Registration Statement.  The Company may extend the Suspension Period for an additional consecutive sixty (60) days with the consent of the holders of at least a majority in interest of the Registrable Securities proposed to be sold by the Initiating Holders, which consent shall not be unreasonably withheld.  If so directed by the Company, the Initiating Holders shall use their reasonable efforts to deliver to the Company (at the Company’s expense) or destroy all copies, other than permanent file copies then in such Initiating Holders’ possession, of the prospectus relating to such Registrable Securities current at the time of receipt of such notice.  The Company shall not be required to file, cause to become effective or maintain the effectiveness of any registration statement other than a registration statement on Form S-3 that contemplates a distribution of securities on a delayed or continuous basis pursuant to Rule 415 under the Securities Act.

 

(b)                                  Prepare and file with the SEC such amendments and supplements to such registration statement and the prospectus used in connection with such registration statement as may be necessary to comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such registration statement for the period set forth in subsection (a) above.

 

(c)                                   Furnish to each seller of Registrable Securities and to each underwriter such number of copies of the registration statement and the prospectus included therein, including each preliminary prospectus, in conformity with the requirements of the Securities Act, and such other documents as they may reasonably request in order to facilitate the disposition of Registrable Securities covered by such registration statement.

 

(d)                                  Register and qualify the securities covered by such registration statement under such other securities or blue sky laws of such jurisdictions as the sellers of Registrable Securities, or in the case of an underwritten public offering, the managing underwriter, reasonably shall request; provided, however, that the Company shall not be required in connection therewith or as a condition thereto to qualify to do business or to file a general consent to service of process in any such states or jurisdictions except to the extent the Company is already subject to service in such jurisdiction or is otherwise so required.

 

(e)                                   In the event of any underwritten public offering, enter into and perform its obligations under an underwriting agreement, in usual and customary form, with the managing underwriter(s) of such offering.  Each Holder participating in such underwriting shall also enter into and perform its obligations under such an agreement.

 

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(f)                                    Notify each Holder of Registrable Securities covered by such registration statement at any time when a prospectus relating thereto is required to be delivered under the Securities Act of the happening of any event as a result of which the prospectus included in such registration statement, as then in effect, includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances then existing. The Company will use commercially reasonable efforts to amend or supplement such prospectus in order to cause such prospectus not to include any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances then existing.

 

(g)                                  Furnish, on the date that such Registrable Securities are delivered to the underwriters for sale, if such securities are being sold through underwriters, (i) an opinion, dated as of such date, of the counsel representing the Company for the purposes of such registration, in form and substance as is customarily given to underwriters in an underwritten public offering, addressed to the underwriters, if any, and (ii) a letter, dated as of such date, from the independent certified public accountants of the Company, in form and substance as is customarily given by independent certified public accountants to underwriters in an underwritten public offering addressed to the underwriters.

 

(h)                                  Cause all such Registrable Securities registered pursuant hereunder to be listed on each securities exchange on which similar securities issued by the Company are then listed; provided that in the case of a registration effected pursuant to Section 2.2 above, which registration constitutes the Initial Offering, the Registrable Securities shall be listed on a national securities exchange or the NASDAQ National Market System.

 

(i)                                     Provide a transfer agent and registrar for all Registrable Securities registered pursuant hereto and a CUSIP number, if available, for all such Registrable Securities, in each case not later than the effective date of such registration

 

(j)                                     Make available to each Holder of Registrable Securities covered by such registration statement, any underwriter participating in any distribution pursuant to such registration statement, and any attorney, accountant or other agent retained by such Holder or underwriter, all financial and other records, pertinent corporate documents and properties of the Company, and cause the Company’s officers, directors and employees to supply all information reasonably requested by any such Holder, underwriter, attorney, accountant or agent in connection with such registration statement.

 

(k)                                  Advise each Holder of Registrable Securities covered by such registration statement, promptly after the Company shall receive notice or obtain knowledge thereof, of the issuance of any stop order by the SEC suspending the effectiveness of such registration statement or the initiation or threatening of any proceeding for such purpose and promptly use all reasonable efforts to prevent the issuance of any stop order or to obtain its withdrawal if such stop order should be issued.

 

(l)                                     Cooperate with the Holders of Registrable Securities covered by such registration statement and the managing underwriters, if any, to facilitate the timely preparation

 

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and delivery of certificates representing such Registrable Securities to be sold, such certificates to be in such denominations and registered in such names as such Holders or the managing underwriters may request at least two business days prior to any sale of Registrable Securities.

 

2.7                                TERMINATION OF REGISTRATION RIGHTS.

 

All registration rights granted under this Section 2 shall terminate and be of no further force and effect upon the earlier of: (a) three (3) years after the date of the Initial Offering or (b) with respect to each Holder, when all Registrable Securities held by and issuable to such Holder (and its Affiliates) may be sold without any volume limitation under Rule 144 during any ninety (90) day period.

 

2.8                                FURNISHING INFORMATION.

 

(a)                                  No Holder shall have any right to obtain or seek an injunction restraining or otherwise delaying any such registration as the result of any controversy that might arise with respect to the interpretation or implementation of this Section 2.

 

(b)                                  It shall be a condition precedent to the obligations of the Company to take any action pursuant to Sections 2.2, 2.3 or 2.4 that the selling Holders shall furnish to the Company in writing such information regarding themselves, the Registrable Securities held by them and the intended method of disposition of such securities as shall be reasonably necessary in order to assure compliance with Federal and applicable state securities laws.

 

2.9                                INDEMNIFICATION.

 

In the event any Registrable Securities are included in a registration statement under Sections 2.2, 2.3 or 2.4:

 

(a)                                  To the extent permitted by law, the Company will indemnify and hold harmless each Holder, the partners, members, officers and directors of each Holder, any underwriter (as defined in the Securities Act) for such Holder and each person, if any, who controls such Holder or underwriter within the meaning of the Securities Act or the Exchange Act, against any losses, claims, damages, or liabilities (joint or several) to which they may become subject under the Securities Act, the Exchange Act or other federal or state law, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon any of the following statements, omissions or violations (collectively a “ Violation ”) by the Company: (i) any untrue statement or alleged untrue statement of a material fact contained in such registration statement or incorporated by reference therein, including any preliminary prospectus or final prospectus contained therein or any amendments or supplements thereto, (ii) the omission or alleged omission to state therein a material fact required to be stated therein, or necessary to make the statements therein not misleading, or (iii) any violation or alleged violation by the Company of the Securities Act, the Exchange Act, any state securities law or any rule or regulation promulgated under the Securities Act, the Exchange Act or any state securities law in connection with the offering covered by such registration statement; and the Company will reimburse, as incurred, each such Holder, partner, member, officer, director, underwriter or controlling person for any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, claim, damage, liability or action; provided,

 

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however, that the indemnity agreement contained in this Section 2.9(a) shall not apply to amounts paid in settlement of any such loss, claim, damage, liability or action if such settlement is effected without the consent of the Company, which consent shall not be unreasonably withheld, nor shall the Company be liable in any such case for any such loss, claim, damage, liability or action to the extent that it arises out of or is based upon a Violation which occurs in reliance upon and in conformity with written information furnished expressly for use in connection with such registration by such Holder, partner, member, officer, director, underwriter or controlling person of such Holder.

 

(b)                                  To the extent permitted by law, each Holder will, if Registrable Securities held by such Holder are included in the securities as to which such registration qualifications or compliance is being effected, severally and not jointly, indemnify and hold harmless the Company, each of its directors, its officers and each person, if any, who controls the Company within the meaning of the Securities Act, any underwriter and any other Holder selling securities under such registration statement or any of such other Holder’s partners, directors, managers or officers or any person who controls such Holder, against any losses, claims, damages or liabilities (joint or several) to which the Company or any such director, manager, trustee, officer, controlling person, underwriter or other such Holder, or partner, director, manager, trustee, officer or controlling person of such other Holder may become subject under the Securities Act, the Exchange Act or other federal or state law, insofar as such losses, claims, damages or liabilities (or actions in respect thereto) arise out of or are based upon any of the following statements, omissions or violations: (i) any untrue statement or alleged untrue statement of a material fact contained in such registration statement or incorporated by reference therein, including any preliminary prospectus or final prospectus contained therein or any amendments or supplements thereto, (ii) the omission or alleged omission to state therein a material fact required to be stated therein, or necessary to make the statements therein not misleading, or (iii) any violation or alleged violation by the Company of the Securities Act, the Exchange Act or any state securities law (collectively, a “ Holder Violation ”), in each case, to the extent (and only to the extent) that such Violation occurs in reliance upon and in conformity with written information furnished by such Holder to the Company expressly for use in connection with such registration; and each such Holder will pay as incurred any legal or other expenses reasonably incurred by the Company or any such director, manager, officer, controlling person, underwriter or other Holder, or partner, officer, director, manager or controlling person of such other Holder in connection with investigating or defending any such loss, claim, damage, liability or action if it is judicially determined that there was such a Holder Violation; provided, however, that the indemnity agreement contained in this Section 2.9(b) shall not apply to amounts paid in settlement of any such loss, claim, damage, liability or action if such settlement is effected without the consent of such Holder, which consent shall not be unreasonably withheld or delayed; provided further , that in no event shall any indemnity under this Section 2.9(b) exceed the net proceeds from the offering received by such Holder when combined with any amounts contributed under Section 2.9(d) by such Holder.

 

(c)                                   Promptly after receipt by an indemnified party under this Section 2.9 of notice of the commencement of any action (including any governmental action), such indemnified party will, if a claim in respect thereof is to be made against any indemnifying party under this Section 2.9, deliver to the indemnifying party a written notice of the commencement thereof and the indemnifying party shall have the right to participate in, and, to the extent the

 

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indemnifying party so desires, jointly with any other indemnifying party similarly noticed, to assume the defense thereof with counsel mutually satisfactory to the parties; provided, however, that an indemnified party shall have the right to retain its own counsel, with the fees and expenses to be paid by the indemnifying party, if representation of such indemnified party by the counsel retained by the indemnifying party would be inappropriate due to actual or potential differing interests between such indemnified party and any other party represented by such counsel in such proceeding.  The failure to deliver written notice to the indemnifying party within a reasonable time of the commencement of any such action, if materially prejudicial to its ability to defend such action, shall relieve such indemnifying party of any liability to the indemnified party under this Section 2.9, but the omission so to deliver written notice to the indemnifying party will not relieve it of any liability that it may have to any indemnified party otherwise than under this Section 2.9.

 

(d)                                  If the indemnification provided for in this Section 2.9 is held by a court of competent jurisdiction to be unavailable to an indemnified party with respect to any losses, claims, damages or liabilities referred to herein, the indemnifying party, in lieu of indemnifying such indemnified party thereunder, shall to the extent permitted by applicable law contribute to the amount paid or payable by such indemnified party as a result of such loss, claim, damage or liability in such proportion as is appropriate to reflect the relative fault of the indemnifying party on the one hand and of the indemnified party on the other in connection with the Violation(s) or Holder Violations(s) that resulted in such loss, claim, damage or liability, as well as any other relevant equitable considerations.  The relative fault of the indemnifying party and of the indemnified party shall be determined by a court of law by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission to state a material fact relates to information supplied by the indemnifying party or by the indemnified party and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission; provided , that in no event shall any contribution by a Holder hereunder, when combined with any amounts contributed under Section 2.9(b), exceed the net proceeds from the offering received by such Holder.

 

(e)                                   The obligations of the Company and the Holders under this Section 2.9 shall survive completion of any offering of Registrable Securities in a registration statement and the termination of this Agreement.  No indemnifying party, in the defense of any such claim or litigation, shall, except with the consent of each indemnified party, consent to entry of any judgment or enter into any settlement which does not include as an unconditional term thereof the giving by the claimant or plaintiff to such indemnified party of a release from all liability in respect to such claim or litigation.

 

(f)                                    Notwithstanding the foregoing, to the extent that the provisions on indemnification and contribution contained in the underwriting agreement entered into in connection with the underwritten public offering conflict with the foregoing provisions, the provisions in the underwriting agreement shall control.

 

2.10                         ASSIGNMENT OF REGISTRATION RIGHTS.

 

The rights to cause the Company to register Registrable Securities pursuant to this Section 2 may be assigned by a Holder to a transferee or assignee of Registrable Securities that is

 

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an Affiliate of such Holder or pursuant to a transfer otherwise permitted under Section 2.1(a) or (b); provided, however, (i) the transferor shall, at least ten (10) days prior to such transfer, furnish to the Company written notice of the name and address of such transferee or assignee and the securities with respect to which such registration rights are being assigned, and (ii) such transferee shall agree to be subject to all restrictions set forth in this Agreement.

 

2.11                         AMENDMENT OF REGISTRATION RIGHTS.

 

Any provision of this Section 2 may be amended and the observance thereof may be waived (either generally or in a particular instance and either retroactively or prospectively), only with the written consent of the Company and the Requisite Holders.  Any amendment or waiver effected in accordance with this Section 2.11 shall be binding upon each Holder and the Company.  By acceptance of any benefits under this Section 2, Holders of Registrable Securities hereby agree to be bound by the provisions hereunder.

 

2.12                         LIMITATION ON SUBSEQUENT REGISTRATION RIGHTS.

 

After the date of this Agreement, the Company shall not, without the prior written consent of the Requisite Holders, enter into any agreement with any holder or prospective holder of any securities of the Company that would grant such holder registration rights pari passu with, or senior to, those granted to the Holders hereunder, other than a right to a Special Registration Statement.

 

2.13                         “MARKET STAND-OFF” AGREEMENT.

 

Each Holder hereby agrees , if so requested by the Company and the representative of the underwriters of the Common Stock (or other securities) of the Company (the “ Underwriter Representative ”), that such Holder shall not sell, transfer, make any short sale of, grant any option for the purchase of, or enter into any hedging or similar transaction with the same economic effect as a sale with respect to, any Common Stock (or other securities) of the Company held by such Holder (other than those included in the registration) during (i) the 180-day period following the effective date of the Initial Offering and (ii) with respect to any registration other than the Initial Offering pursuant to which the Holder is participating, the 90-day period following such registration; provided that all officers and directors of the Company and holders of at least one percent (1%) of the Company’s voting securities enter into similar agreements.  Any discretionary waiver or termination of the restrictions or any or all of such agreements by the Company or the underwriters shall apply to all Holders subject to such agreements pro rata based on the number of shares subject to such agreements.  Notwithstanding anything herein to the contrary, the provisions of this Section 2.13 shall not apply to any shares purchased in the Initial Offering or in the secondary market following the Initial Offering.

 

2.14                         AGREEMENT TO FURNISH INFORMATION.

 

Each Holder agrees to execute and deliver such other agreements as may be reasonably requested by the Company or the managing underwriter that are consistent with such Holder’s and such Holder’s obligations under Section 2.13 or that are necessary to give further effect thereto.  In addition, if requested by the Company or the Underwriter Representative, each Holder shall provide, within ten (10) days of such request, such information as may be required

 

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by the Company or such Underwriter Representative in connection with the completion of any public offering of the Company’s securities pursuant to a registration statement filed under the Securities Act.  The obligations described in Section 2.13 and this Section 2.14 shall not apply to a Special Registration Statement.  The Company may impose stop-transfer instructions with respect to the shares of Common Stock (or other securities) subject to the foregoing restriction until the end of the period determined pursuant to Section 2.13.  Each Holder agrees that any transferee of any shares of Registrable Securities shall be bound by Section 2.13 and this Section 2.14.  The lead managing underwriters of the Company’s stock are intended third party beneficiaries of Section 2.13 and this Section 2.14 and shall have the right, power and authority to enforce the provisions hereof as though they were a party hereto.

 

2.15                         RULE 144 REPORTING.

 

With a view to making available to the Holders the benefits of certain rules and regulations of the SEC which may permit the sale of the Registrable Securities to the public without registration, the Company agrees to use its commercially reasonable efforts to:

 

(a)                                  Make and keep public information available, as those terms are understood and defined in Rule 144, at all times after the effective date of the first registration filed by the Company for an offering of its securities to the general public;

 

(b)                                  File with the SEC, in a timely manner, all reports and other documents required of the Company under the Exchange Act; and

 

(c)                                   So long as a Holder owns any Registrable Securities, furnish to such Holder forthwith upon request:  a written statement by the Company as to its compliance with the reporting requirements of Rule 144, the Securities Act and 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 Company; and such other reports and documents as a Holder may reasonably request in availing itself of any rule or regulation of the SEC allowing it to sell any such securities without registration.

 

2.16                         CHANGES IN COMMON STOCK OR PREFERRED STOCK.

 

If, and as often as, there is any change in the Common Stock or the Preferred Stock by way of a stock split, stock dividend, combination, recapitalization, reclassification and the like, or through a merger, consolidation, reorganization or recapitalization, or by any other means, appropriate adjustment shall be made in the provisions hereof so that the rights and privileges granted hereby shall continue with respect to the Common Stock and the Preferred Stock as so changed.

 

3.                                       COVENANTS OF THE COMPANY.

 

3.1                                BASIC FINANCIAL INFORMATION AND REPORTING.

 

(a)                                  The Company shall, and shall cause each Subsidiary to, maintain true books and records of account in which full and correct entries will be made of all its business transactions pursuant to a system of accounting established and administered in accordance with

 

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generally accepted accounting principles consistently applied, and will set aside on its books all such proper accruals and reserves as shall be required under generally accepted accounting principles consistently applied.  The Company shall, at all times, properly maintain consolidated records of its corporate affairs, including, without limitation, a corporate minute book containing a complete summary of all meetings of directors and stockholders since the time of incorporation.

 

(b)                                  As soon as practicable after the end of each fiscal year of the Company, and in any event within one hundred thirty-five (135) days thereafter, the Company shall furnish to T. Rowe Price, on behalf of the T. Rowe Price Investors, and to Janus, on behalf of the Janus Investors, a consolidated balance sheet of the Company and its Subsidiaries, as of the end of such fiscal year, and a consolidated statement of income, a consolidated statement of cash flows and a statement of stockholders’ equity of the Company and its Subsidiaries, for such year, all prepared in accordance with generally accepted accounting principles consistently applied and setting forth in each case, in comparative form, the figures for the previous fiscal year, all in reasonable detail.  Such financial statements shall be accompanied by a report and opinion thereon by independent certified public accountants selected by the Board.

 

(c)                                   The Company shall furnish to T. Rowe Price, on behalf of the T. Rowe Price Investors, and to Janus, on behalf of the Janus Investors, as soon as practicable after the end of each fiscal quarter, and in any event within sixty (60) days thereafter, a consolidated balance sheet of the Company and its Subsidiaries, as of the end of each such quarter, and a consolidated statement of income, a consolidated statement of cash flows and a statement of stockholders’ equity of the Company and its Subsidiaries for such quarter and for the current fiscal year to date, prepared in accordance with generally accepted accounting principles consistently applied and setting forth in each case, in comparative form, the corresponding figures for the corresponding period of the preceding fiscal year, all in reasonable detail, with the exception that no notes need be attached to such statements and year-end audit adjustments may not have been made.  The delivery of such financial statements shall be accompanied by a current capitalization table of the Company.

 

(d)                                  The Company shall promptly and accurately respond, and shall use its best efforts to cause its transfer agent to promptly respond, to (i) requests for information made by T. Rowe Price on behalf of T. Rowe Investors relating to (a) accounting or securities law matters required in connection with its audit or (b) the actual holdings of the T. Rowe Price Investors, including in relation to the total outstanding shares and (ii) requests for information made by Janus on behalf of Janus Investors relating to (a) accounting or securities law matters required in connection with its audit or (b) the actual holdings of the Janus Investors, including in relation to the total outstanding shares; provided however, that in no event will the Company be obligated to provide any such information that could reasonably result in a violation of applicable law or conflict with the Company’s insider trading policy or a confidentiality obligation of the Company.  These rights shall expire at the point at which no T. Rowe Price Investor (with respect to the rights of T. Rowe Price) or Janus Investor (with respect to the rights of Janus) holds any Equity Securities of the Company that are restricted under the Securities Act.

 

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3.2                                INSPECTION RIGHTS.

 

Each Investor and its representatives (including, without limitation, its lawyers and accountants) that is not a former officer or employee of, or consultant to, the Company shall have the right to inspect the premises and the books and records of the Company at such reasonable times and as often as may be reasonably requested; provided, however, that the Company shall not be obligated under this Section 3.2 with respect to a competitor of the Company or with respect to information which the Board determines in good faith is confidential and should not, therefore, be disclosed (it being understood that no T. Rowe Price Investor or Janus Investor shall be deemed a competitor of the Company). The Company shall make such books and records available for inspection by such Investor and such of its representatives as such Investor shall designate in writing to the Company upon giving notice of any such inspection.

 

3.3                                CONFIDENTIALITY OF RECORDS.

 

Each Investor agrees that such Investor will keep confidential and will not disclose, divulge, or use for any purpose (other than to monitor its investment in the Company) any confidential information obtained from the Company pursuant to the terms of this Agreement (including notice of the Company’s intention to file a registration statement), unless such confidential information (a) is known or becomes known to the public in general (other than as a result of a breach of this Section 3.3 by such Investor), (b) is or has been independently developed or conceived by the Investor without use of or reference to the Company’s confidential information, or (c) is or has been made known or disclosed to the Investor by a third party without a breach of any obligation of confidentiality such third party may have to the Company; provided, however, that an Investor may disclose confidential information (i) to its attorneys, accountants, consultants, and other professionals to the extent necessary to obtain their services in connection with monitoring its investment in the Company; (ii) to any prospective purchaser of any Registrable Securities from such Investor that is not a direct competitor of the Company, if such prospective purchaser agrees to be bound by the provisions of this Section 3.3; (iii) to any Affiliate, partner, member, stockholder, or wholly owned Subsidiary of such Investor in the ordinary course of business, provided that such Investor informs such Person that such information is confidential and directs such Person to maintain the confidentiality of such information; (iv) as may otherwise be required by law or regulation, provided that the Investor promptly notifies the Company of such disclosure and takes reasonable steps to minimize the extent of any such required disclosure or (v) with respect to T. Rowe Price Investors, as would otherwise be permitted pursuant to Section 5 of that certain Nondislosure Agreement by and between the Company and T. Rowe Price, dated as of July 17, 2013.  For the sake of clarity, nothing contained in this Section 3.3 shall in any way restrict or impair the obligations of T. Rowe Price to report the investment of its advisory clients (as Investors) or of Janus to report the investment of its advisory clients (as Investors) in the Company, in accordance with applicable laws and regulations, without any requirement of prior notice to the Company.  The Company acknowledges that the Investors are in the business of investing and therefore review the business plans and related proprietary information of many enterprises, including enterprises that may have products or services that compete directly or indirectly with those of the Company.  Nothing in this Agreement shall preclude or in any way restrict the Investors from investing or participating in any particular enterprise, regardless of whether such enterprise has products or services that compete with those of the Company.

 

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3.4                                MEETINGS OF DIRECTORS.

 

The Company will hold meetings of the Board not less than four (4) times a year on a quarterly basis.

 

3.5                                EXPENSES OF DIRECTORS; REMOTE PARTICIPATION BY DIRECTORS AND OBSERVERS.

 

The Company will promptly reimburse in full, each director of the Company who are not employees of the Company for all of his or her reasonable out-of-pocket expenses incurred in attending each meeting of the Board or any committee thereof.  The Company will make available to each director and board observer of the Company who is unable to attend such meetings in person, participation at such meetings by teleconference and/or the Internet.

 

3.6                                PUBLICITY.

 

The Company shall not use the name of any Investor, T. Rowe or Janus in any written manner, context or format (including reference on or links to websites, press releases, etc.) without the prior review and written approval of such Investor or, with respect to T. Rowe Price and the T. Rowe Price Investors, T. Rowe Price, or with respect to Janus and the Janus Investors, Janus.

 

3.7                                ASSIGNMENT OF RIGHT OF FIRST REFUSAL.

 

In the event the Company elects not to exercise any right of first refusal or right of first offer the Company may have on a proposed transfer of any of the Company’s outstanding capital (other than pursuant to the Co-Sale Agreement (as defined in the Purchase Agreement)), the Company shall, to the extent it may do so, assign such right of first refusal or right of first offer to (a) first, the Key Holders and their respective affiliates, family members and estate planning vehicles, and (b) second, the Investors.  In the event of such assignment, each Key Holder shall have a right to purchase its pro rata portion of the capital stock proposed to be transferred.  Each Key Holder’s pro rata portion shall be equal to the product obtained by multiplying (i) the aggregate number of shares proposed to be transferred by (ii) a fraction, the numerator of which is the number of outstanding shares of Common Stock held by such Key Holder as the case may be, at the time of the proposed transfer and the denominator of which is the number of outstanding shares of Common Stock owned by all Key Holders at the time of such proposed transfer.  If the Key Holders do not effect the purchase all of such capital stock within 30 days of notice from the Company, then each Investor shall have a right to purchase its pro rata portion of the capital stock proposed to be transferred and not so purchased (the “ Remaining Shares ”).  Each Investor’s pro rata portion shall be equal to the product obtained by multiplying (i) the aggregate number of Remaining Shares by (ii) a fraction, the numerator of which is the number of outstanding shares of Common Stock issued or issuable upon the conversion of the Preferred Stock held by such Investor at the time of the proposed transfer and the denominator of which is the number of outstanding shares of Common Stock issued or issuable upon the conversion of the Preferred Stock owned by all Investors at the time of such proposed transfer.  All restricted stock, stock options and other stock equivalents issued after the date of this Agreement to

 

21



 

employees, directors, consultants and other service providers shall be subject to a right of first refusal in favor of the Company.

 

3.8                                RESTRICTIVE AGREEMENTS PROHIBITED.

 

Neither the Company nor any of its Subsidiaries shall become a party to any agreement which by its terms creates a material restriction on the Company’s performance, or ability to perform, any of this Agreement.

 

3.9                                TERMINATION OF COVENANTS.

 

Excepting Sections 3.8 and this Section 3.9, all covenants of the Company and each Subsidiary, if and when such Subsidiary exists, contained in Section 3 of this Agreement shall expire and terminate as to each Investor or holder of Registrable Securities, as applicable, upon the earlier of (a) the closing of the Initial Offering, or (b) the occurrence of a Change in Control.

 

4.                                       PARTICIPATION RIGHTS.

 

4.1                                SUBSEQUENT OFFERINGS.

 

Each Investor shall have a right to purchase such Investor’s pro rata share of all Equity Securities that the Company may, from time to time, propose to sell and issue after the date of this Agreement, other than the Equity Securities excluded by Section 4.7 hereof.  Each Investor’s pro rata share is equal to the ratio of (a) the number of shares of the Company’s outstanding Common Stock (treating all shares of convertible preferred stock to acquire convertible preferred stock on an as-converted to common stock basis and including all shares of Common Stock issuable upon the exercise of outstanding options) which such Investor holds of record immediately prior to the issuance of such Equity Securities to (b) the total number of shares of the Company’s outstanding Common Stock (treating all shares of convertible preferred stock on an as-converted to common stock basis and including all shares of Common Stock issuable upon the exercise of outstanding options) immediately prior to the issuance of such Equity Securities.

 

4.2                                EXERCISE OF RIGHTS.

 

If the Company proposes to issue any Equity Securities, it shall give each Investor written notice of its intention, describing the Equity Securities, the price and the terms and conditions upon which the Company proposes to issue the same.  Each Investor shall have ten (10) business days from the giving of such notice to agree to purchase its pro rata share of the Equity Securities for the price and upon the terms and conditions specified in the notice by giving written notice to the Company and stating therein the quantity of Equity Securities to be purchased.  Notwithstanding the foregoing, the Company shall not be required to offer or sell such Equity Securities to any Investor that would cause the Company to be in violation of applicable Federal or state securities laws by virtue of such offer or sale.

 

4.3                                ISSUANCE OF EQUITY SECURITIES TO OTHER PERSONS.

 

If not all of the Investors elect to purchase their pro rata share of the Equity Securities, then the Company shall promptly notify in writing the Investors that have so elected (the

 

22



 

Participating Investors ”) and offer the Participating Investors the right to acquire such unsubscribed shares.  Each Participating Investor shall have ten (10) business days after receipt of such notice to notify the Company of such Participating Investor’s election to purchase all or a portion thereof of the unsubscribed shares.  If the Investors fail to exercise in full the participation rights set forth in Section 4.2 hereof and this Section 4.3, the Company shall have one hundred twenty (120) days thereafter to sell the Equity Securities in respect of which the Investors’ rights were not exercised, at a price and upon terms and conditions no more favorable to the purchasers thereof than specified in the Company’s original notice of the sale of such Equity Securities to the Investors pursuant to Section 4.2 hereof.  If the Company has not sold such Equity Securities within one hundred twenty days (120) days of such notice, the Company shall not thereafter issue or sell any Equity Securities, without first offering such securities to the Investors in the manner provided above.

 

4.4                                TERMINATION AND WAIVER OF PARTICIPATION RIGHTS.

 

The participation rights established by this Section 4 shall not apply to, and shall terminate upon the earlier of (i) the closing of a Qualified Public Offering, (ii) the closing of an Initial Offering which results in the Preferred Stock being converted into Common Stock, or (iii)  the occurrence of a Change in Control.

 

4.5                                AMENDMENT AND WAVIER.

 

The participation rights set forth in this Section 4 may be amended, or any provision waived with the written consent the Requisite Holders or as permitted by Section 5.5.

 

4.6                                TRANSFER AND ALLOCATION OF PARTICIPATION RIGHTS.

 

The participation rights set forth in this Section 4 are transferable to the same parties, and subject to the same limitations, as are set forth for registration rights in Section 2.10 hereof.  Notwithstanding anything to the contrary in this Section 4, (i) T. Rowe Price may, in its discretion, elect in writing to allocate the participation rights set forth in this Section 4 among the T. Rowe Price Investors as it may determine in its sole discretion, and the Company shall adhere to any such written election provided to the Company so long as T. Rowe Price otherwise complies with the provisions of this Section 4 and (ii) Janus may, in its discretion, elect in writing to allocate the participation rights set forth in this Section 4 among the Janus Investors as it may determine in its sole discretion, and the Company shall adhere to any such written election provided to the Company so long as Janus otherwise complies with the provisions of this Section 4.

 

4.7                                EXCLUDED SECURITIES.

 

The participation rights set forth in this Section 4 shall not apply to the following Equity Securities:

 

(a)                                  shares of Common Stock issued upon conversion of the Preferred Stock or as a dividend or distribution on the Preferred Stock;

 

23



 

(b)                                  shares of Common Stock and/or options or other purchase rights and the shares of Common Stock issued pursuant to such options or other purchase rights issuable or issued to employees, advisors, consultants, directors or advisory board members (other than Jeff Rowe and Phil Hagerman and their respective Affiliates) pursuant to one or more plans, agreements or similar arrangements approved by the Board and not to exceed in the aggregate such number of shares that would represent 20% of the fully-diluted capitalization of the Company as of the date of sale and issuance of the applicable Equity Securities and after giving effect to such issuance;

 

(c)                                   shares of Common Stock issued upon the exercise or conversion of warrants or convertible securities outstanding as of the date hereof; or

 

(d)                                  Equity Securities issued in connection with mergers, acquisitions, strategic transactions, joint ventures, equipment leasing, debt financings and commercial transactions approved by the Board.

 

5.                                       MISCELLANEOUS.

 

5.1                                GOVERNING LAW; CONSENT TO JURISDICTION.

 

This Agreement shall be governed by and construed in accordance with the laws of the State of Michigan, without regard to its principles of conflicts of laws.  Each of the parties hereto irrevocably submits to the exclusive jurisdiction of the state or federal courts of the State of Michigan for the purpose of any suit, action, proceeding or judgment relating to or arising out of this Agreement and the transactions contemplated hereby.  Service of process in connection with any such suit, action or proceeding may be served on each party hereto anywhere in the world by the same methods as are specified for the giving of notices under this Agreement.  Each of the parties hereto irrevocably consents to the jurisdiction of any such court in any such suit, action or proceeding and to the laying of venue in such court.  Each party hereto irrevocably waives any objection to the laying of venue of any such suit, action or proceeding brought in such courts and irrevocably waives any claim that any such suit, action or proceeding brought in any such court has been brought in an inconvenient forum.  THE PARTIES TO THIS AGREEMENT HEREBY WAIVE THEIR RIGHT TO A TRIAL BY JURY WITH RESPECT TO DISPUTES ARISING UNDER THIS AGREEMENT AND CONSENT TO A BENCH TRIAL WITH THE APPROPRIATE JUDGE ACTING AS THE FINDER OF FACT.

 

5.2                                SUCCESSORS AND ASSIGNS.

 

Except as otherwise expressly provided herein, the provisions hereof shall inure to the benefit of, and be binding upon, the successors, assigns, heirs, executors, and administrators of the parties hereto and shall inure to the benefit of and be enforceable by each person who shall be a holder of Registrable Securities from time to time; provided, however , that prior to the receipt by the Company of adequate written notice of the transfer of any Registrable Securities specifying the full name and address of the transferee, the Company may deem and treat the person listed as the holder of such shares in its records as the absolute owner and holder of such shares for all purposes, including the payment of dividends or any redemption price.

 

24



 

5.3                                ENTIRE AGREEMENT.

 

This Agreement, the Exhibits hereto, the Purchase Agreement and the other documents delivered pursuant thereto constitute the full and entire understanding and agreement between the parties with regard to the subjects hereof and thereof and no party shall be liable or bound to any other in any manner by any representations, warranties, covenants and agreements except as specifically set forth herein and therein.

 

5.4                                SEVERABILITY.

 

In the event one or more of the provisions of this Agreement should, for any reason, be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality, or unenforceability shall not affect any other provisions of this Agreement, and this Agreement shall be construed as if such invalid, illegal or unenforceable provision had never been contained herein.

 

5.5                                AMENDMENT AND WAIVER.

 

(a)                                  Except as otherwise expressly provided herein, this Agreement may be amended or modified only upon the written consent of the Company and the Requisite Holders.  Any such amendment or modification effected in accordance with this Section 5.5(a) shall be binding on all parties hereto, even if they do not execute such consent.

 

(b)                                  Subject to Section 5.5(c) below, any party hereto may waive compliance with any agreements, covenants or conditions for the benefit of such party contained herein.  Any agreement on the part of a party hereto to any such waiver shall be valid only if set forth in an instrument in writing signed on behalf of such party.

 

(c)                                   Except as otherwise expressly provided, the obligations of the Company and the rights of the Holders under this Agreement may be waived with respect to all parties to this Agreement (either generally or in a particular instance and either retroactively or prospectively) only with the written consent of the holders of at a majority in interest of the Registrable Securities.  Any such waiver effected in accordance with this Section 5.5(c) shall be binding on all parties hereto, even if they do not execute such consent.  Each Holder acknowledges that by the operation of this paragraph, the Requisite Holders will have the right and power to diminish or eliminate all rights of such Holder under this Agreement.

 

(d)                                  Notwithstanding Section 5.5(a) above, any amendment, modification or waiver which adversely affects the registration rights of the Key Holders under Section 2.3 in a different manner than the other Holders shall also require the written consent of the holders of at least a majority of the then-outstanding Registrable Securities held by the Key Holders.

 

(e)                                   For the purposes of determining the number of Holders or Investors entitled to vote or exercise any rights hereunder, the Company shall be entitled to rely solely on the list of record holders of its stock as maintained by or on behalf of the Company.

 

25


 

5.6                                DELAYS OR OMISSIONS.

 

It is agreed that no delay or omission to exercise any right, power, or remedy accruing to any Holder, upon any breach, default or noncompliance of the Company under this Agreement shall impair any such right, power, or remedy, nor shall it be construed to be a waiver of any such breach, default or noncompliance, or any acquiescence therein, or of 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 any Holder’s part of any breach, default or noncompliance under the Agreement or any waiver on such Holder’s part 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.  All remedies, either under this Agreement, by law, or otherwise afforded to Holders, shall be cumulative and not alternative.

 

5.7                                NOTICES.

 

All notices required or permitted hereunder shall be in writing and shall be deemed effectively given: (a) upon personal delivery to the party to be notified, (b) when sent by confirmed electronic mail or facsimile if sent during normal business hours of the recipient; if not, then on the next business day, (c) five (5) days after having been sent by registered or certified mail, return receipt requested, postage prepaid, or (d) one (1) day after deposit with a nationally recognized overnight courier, specifying next day delivery, with written verification of receipt.  All communications shall be sent to the party to be notified at the address as set forth on the signature pages or Exhibit attached hereto or at such other address as such party may designate by ten (10) days advance written notice to the other parties hereto.

 

5.8                                ATTORNEYS’ FEES.

 

In the event that any suit or action is instituted to enforce any provision in this Agreement, the prevailing party in such dispute shall be entitled to recover from the losing party all fees, costs and expenses of enforcing any right of such prevailing party under or with respect to this Agreement, including without limitation, such reasonable fees and expenses of attorneys and accountants, which shall include, without limitation, all fees, costs and expenses of appeals.

 

5.9                                TITLES AND SUBTITLES.

 

The titles of the sections and subsections of this Agreement are for convenience of reference only and are not to be considered in construing this Agreement.

 

5.10                         AGGREGATION OF STOCK.

 

All shares of Registrable Securities held or acquired by Affiliated entities or persons, or persons or entities under common management or control shall be aggregated together for the purpose of determining the availability of any rights under this Agreement.

 

26



 

5.11                         COUNTERPARTS.

 

This Agreement may be executed in any number of counterparts, each of which shall be an original, but all of which together shall constitute one instrument.  This Agreement may be executed by facsimile, PDF or TIF signatures.

 

5.12                         SPECIFIC PERFORMANCE.

 

In addition to any and all other remedies that may be available at law in the event of any breach of this Agreement, each Holder shall be entitled to specific performance of the agreements and obligations of the Company hereunder and to such other injunction or other equitable relief as may be granted by a court of competent jurisdiction.

 

SIGNATURES ON THE FOLLOWING PAGES

 

27



 

The parties hereto have executed this FIRST AMENDED AND RESTATED INVESTORS’ RIGHTS AGREEMENT as of the date set forth in the first paragraph hereof.

 

 

THE COMPANY:

 

 

 

DIPLOMAT PHARMACY, INC.

 

 

 

 

 

By:

/s/ Philip Hagerman

 

 

Philip Hagerman

 

 

Its: Chief Executive Officer

 

 

 

ADDRESS:

 

 

 

c/o Diplomat Pharmacy, Inc.

 

4100 South Saginaw Street

 

Flint, MI 48507

 

Fax: (810) 282-0195

 

Attention:  Chief Financial Officer

 

 

DIPLOMAT PHARMACY, INC.

FIRST AMENDED AND RESTATED INVESTORS’ RIGHTS AGREEMENT SIGNATURE PAGE

 



 

EXISTING INVESTORS:

 

 

T. ROWE PRICE HEALTH SCIENCES FUND, INC.

TD MUTUAL FUNDS — TD HEALTH SCIENCES FUND

VALIC COMPANY I — HEALTH SCIENCES FUND

T. ROWE PRICE HEALTH SCIENCES PORTFOLIO

JOHN HANCOCK VARIABLE INSURANCE TRUST — HEALTH SCIENCES TRUST

JOHN HANCOCK FUNDS II — HEALTH SCIENCES FUND

 

 

By:

T. ROWE PRICE ASSOCIATES, INC.,

 

 

Investment Adviser

 

 

 

By:

/s/ Zlad Bakri

 

 

 

Name:  Zlad Bakri, Vice President

 

 

 

Title:  Analyst

 

 

 

 

 

T. ROWE PRICE NEW HORIZONS FUND, INC.

 

T. ROWE PRICE NEW HORIZONS TRUST

 

T. ROWE PRICE U.S. EQUITIES TRUST

 

 

 

By:

T. ROWE PRICE ASSOCIATES, INC.,

 

 

Investment Adviser

 

 

 

By:

/s/ Henry Ellenbogen

 

 

 

Name:  Henry Ellenbogen

 

 

 

Title:  Vice President

 

 

DIPLOMAT PHARMACY, INC.

FIRST AMENDED AND RESTATED INVESTORS’ RIGHTS AGREEMENT SIGNATURE PAGE

 



 

NEW INVESTORS :

 

 

JANUS GLOBAL LIFE SCIENCES FUND

JANUS CAPITAL FUNDS PLC JANUS GLOBAL LIFE SCIENCES FUND

 

 

 

 

By:

/s/ Andrew Acker

 

 

 

Name:  Andrew Acker

 

 

 

Title:  Authorized Person

 

 

 

 

 

JANUS TRITON FUND

JANUS VENTURE FUND

JANUS CAPITAL FUNDS PLC JANUS US VENTURE FUND

 

 

By:

/s/ Jonathan Coleman

 

 

 

Name:  Jonathan Coleman

 

 

 

Title:  Authorized Person

 

 

DIPLOMAT PHARMACY, INC.

FIRST AMENDED AND RESTATED INVESTORS’ RIGHTS AGREEMENT SIGNATURE PAGE

 



 

KEY HOLDERS:*

 

 

 

 

 

By

/s/ Jeffrey M. Rowe

 

 

 

Jeffrey M. Rowe

 

 

 

 

 

 

PHILIP HAGERMAN REVOCABLE TRUST

THE 2007 HAGERMAN FAMILY GST TRUST U/T/A 6/1/2007

DATED SEPTEMBER 6, 1991, AS AMENDED

 

 

 

 

By

/s/ Philip R. Hagerman

 

By

/s/ Jocelyn Hagerman

 

Philip R. Hagerman, its Trustee

 

 

Jocelyn Hagerman, its Trustee

 

 

 

 

By

/s/ Kerry Hayes

 

 

Kerry Hayes, its Trustee

 

 

 

 

THE JH GST TRUST U/T/A 5/1/2007

THE ROWE FAMILY TRUST

 

 

 

 

By

/s/ Philip R. Hagerman

 

By

/s/ Michele Ramo

 

Philip R. Hagerman, its Trustee

 

 

Michele Ramo, its Trustee

 


* Signing solely for purposes of Sections 1, 2 (other than Sections 2.2, 2.4, 2.11 and 2.12) and 5.

 

DIPLOMAT PHARMACY, INC.

FIRST AMENDED AND RESTATED INVESTORS’ RIGHTS AGREEMENT SIGNATURE PAGE

 



 

EXHIBIT A

 

SCHEDULE OF EXISTING INVESTORS

 

Name

 

Address

 

# of Shares
Preferred Stock

T. Rowe Price Health Sciences Fund, Inc.

 

*

 

112

TD Mutual Funds - TD Health Sciences Fund

 

*

 

6

VALIC Company I - Health Sciences Fund

 

*

 

7

T. Rowe Price Health Sciences Portfolio

 

*

 

5

John Hancock Variable Insurance Trust - Health Sciences Trust

 

*

 

3

John Hancock Funds II - Health Sciences Fund

 

*

 

7

T. Rowe Price New Horizons Fund, Inc.

 

*

 

193

T. Rowe Price New Horizons Trust

 

*

 

18

T. Rowe Price U.S. Equities Trust

 

*

 

0.32097

 

 

 

 

 

TOTAL:

 

 

 

351.32097

 


* Address for Notices:

 

T. Rowe Price Associates, Inc.

100 East Pratt Street

Baltimore, MD 21202

Attn: Andrew Baek, Vice President and Senior Legal Counsel

Phone:  410-345-2090

E-mail: andrew_baek@troweprice.com

 

A-1



 

EXHIBIT B

 

SCHEDULE OF NEW INVESTORS

 

Name

 

Address

 

# of Shares
Preferred Stock

Janus Global Life Sciences Fund

 

*

 

70.176

Janus Triton Fund

 

*

 

201.1571

Janus Venture Fund

 

*

 

81.0076

JANUS CAPITAL FUNDS PLC JANUS GLOBAL LIFE SCIENCES FUND

 

*

 

16.105

JANUS CAPITAL FUNDS PLC JANUS US VENTURE FUND

 

*

 

10.981

 

 

 

 

 

TOTAL:

 

 

 

379.4267

 


* Address for Notices:

 

Janus Capital Management LLC

151 Detroit Street

Denver, CO 80206

Attn: Angela Morton

Phone:  303-336-4358

E-mail: Angela.morton@janus.com

 

A-1



 

EXHIBIT C

 

SCHEDULE OF KEY HOLDERS

 

Name

 

Address

 

# of Shares
Class A
Common
Stock

 

# of Shares
Class B
Common
Stock

Philip Hagerman Revocable Trust Dated September 6, 1991, As Amended

 

*

 

195

 

1151.99501

The 2007 Hagerman Family GST Trust U/T/A 6/1/2007

 

*

 

0

 

544.24340

The JH GST Trust U/T/A 5/1/2007

 

*

 

0

 

613.46037

The Rowe Family Trust

 

*

 

0

 

65

Jeffrey M. Rowe

 

*

 

0

 

293.13659

 


* Address for Notices:

 

c/o Diplomat Pharmacy, Inc.

4100 South Saginaw Street

Flint, MI 48507

Fax: (810) 282-0195

Attention:  Chief Financial Officer

 

A-1




Exhibit 10.1

 

Execution Version

 

AMENDED AND RESTATED
CREDIT AGREEMENT

 

Dated as of June 26, 2014

 

by and among

 

DIPLOMAT PHARMACY, INC.,
as the Borrower,

 

THE OTHER PERSONS PARTY HERETO THAT ARE
DESIGNATED AS CREDIT PARTIES,

 

GENERAL ELECTRIC CAPITAL CORPORATION,
for itself, as Swingline Lender and as Agent for all Lenders,

 

and

 

THE OTHER FINANCIAL INSTITUTIONS PARTY HERETO,
as Lenders

 

****************************************

 

GE CAPITAL MARKETS, INC.,
as Sole Lead Arranger and Bookrunner

 



 

TABLE OF CONTENTS

 

 

 

 

Page

 

 

ARTICLE I.          THE CREDITS

2

 

 

 

1.1

Amounts and Terms of Commitments

2

 

1.2

Evidence of Loans; Notes

8

 

1.3

Interest

8

 

1.4

Loan Accounts

9

 

1.5

Procedure for Revolving Credit Borrowing

10

 

1.6

Conversion and Continuation Elections

11

 

1.7

Optional Prepayments

12

 

1.8

Revolving Loan Repayment

12

 

1.9

Fees

12

 

1.10

Payments by the Borrower

13

 

1.11

Payments by the Lenders to Agent; Settlement

15

 

1.12

[Reserved]

18

 

1.13

Eligible Accounts

18

 

1.14

Eligible Inventory

21

 

1.15

Replacement of Commitments

23

 

1.16

Restatement of Obligations

23

 

 

ARTICLE II.        CONDITIONS PRECEDENT

24

 

 

 

2.1

Conditions of Initial Loans

24

 

2.2

Conditions to All Borrowings

25

 

 

 

 

ARTICLE III.      REPRESENTATIONS AND WARRANTIES

26

 

 

 

3.1

Corporate Existence and Power

26

 

3.2

Corporate Authorization; No Contravention

26

 

3.3

Governmental Authorization

27

 

3.4

Binding Effect

27

 

3.5

Litigation

27

 

3.6

No Default

28

 

3.7

ERISA Compliance

28

 

3.8

Use of Proceeds; Margin Regulations

28

 

3.9

Ownership of Property; Liens

28

 

3.10

Taxes

29

 

3.11

Financial Condition

29

 

3.12

Environmental Matters

30

 

3.13

Regulated Entities

31

 

3.14

Solvency

31

 

3.15

Labor Relations

31

 

3.16

Intellectual Property

31

 

3.17

Brokers’ Fees; Transaction Fees

32

 

3.18

Insurance

32

 

3.19

Ventures, Subsidiaries and Affiliates; Outstanding Stock

32

 

i



 

TABLE OF CONTENTS

(continued)

 

 

 

Page

 

 

 

 

 

3.20

Jurisdiction of Organization; Chief Executive Office

33

 

3.21

Locations of Inventory, Equipment and Books and Records

33

 

3.22

Deposit Accounts and Other Accounts

33

 

3.23

Government Contracts

33

 

3.24

Customer and Trade Relations

33

 

3.25

Bonding

33

 

3.26

Subordinated Indebtedness

34

 

3.27

Full Disclosure

34

 

3.28

Foreign Assets Control Regulations and Anti-Money Laundering

34

 

3.29

Patriot Act

34

 

3.30

Certain Other Representations and Warranties

35

 

3.31

Regulatory Matters

35

 

3.32

Healthcare Matters

38

 

 

 

 

ARTICLE IV.       AFFIRMATIVE COVENANTS

41

 

 

 

4.1

Financial Statements

41

 

4.2

Appraisals; Certificates; Other Information

42

 

4.3

Notices

44

 

4.4

Preservation of Corporate Existence, Etc.

47

 

4.5

Maintenance of Property

48

 

4.6

Insurance

48

 

4.7

Payment of Obligations

49

 

4.8

Compliance with Laws

50

 

4.9

Inspection of Property and Books and Records

50

 

4.10

Use of Proceeds

50

 

4.11

Cash Management Systems

51

 

4.12

Landlord Agreements

53

 

4.13

Further Assurances

53

 

4.14

Environmental Matters

55

 

4.15

Post-Closing Obligations

55

 

 

 

 

ARTICLE V.        NEGATIVE COVENANTS

56

 

 

 

5.1

Limitation on Liens

56

 

5.2

Disposition of Assets

58

 

5.3

Consolidations and Mergers

58

 

5.4

Acquisitions; Loans and Investments

59

 

5.5

Limitation on Indebtedness

60

 

5.6

Employee Loans and Transactions with Affiliates

60

 

5.7

Compensation

61

 

5.8

Margin Stock; Use of Proceeds

61

 

5.9

Contingent Obligations

61

 

5.10

Compliance with ERISA

62

 

ii



 

TABLE OF CONTENTS

(continued)

 

 

 

Page

 

 

 

 

 

5.11

Restricted Payments

62

 

5.12

Change in Business

64

 

5.13

Change in Structure

64

 

5.14

Changes in Accounting, Name or Jurisdiction of Organization

64

 

5.15

Amendments to Related Agreements, Material Agreements and Subordinated Indebtedness

64

 

5.16

No Negative Pledges

65

 

5.17

OFAC; Patriot Act

65

 

5.18

Sale-Leasebacks

65

 

5.19

Hazardous Materials

65

 

5.20

Prepayments of Other Indebtedness

66

 

 

 

 

ARTICLE VI.       FINANCIAL COVENANT

66

 

 

 

6.1

Fixed Charge Coverage Ratio

66

 

 

 

 

ARTICLE VII.     EVENTS OF DEFAULT

66

 

 

 

7.1

Events of Default

66

 

7.2

Remedies

69

 

7.3

Rights Not Exclusive

70

 

7.4

Cash Collateral for Letters of Credit

70

 

 

 

 

ARTICLE VIII.   THE AGENT

70

 

 

 

8.1

Appointment and Duties

70

 

8.2

Binding Effect

71

 

8.3

Use of Discretion

71

 

8.4

Delegation of Rights and Duties

72

 

8.5

Reliance and Liability

72

 

8.6

Agent Individually

74

 

8.7

Lender Credit Decision

74

 

8.8

Expenses; Indemnities; Withholding

75

 

8.9

Resignation of Agent or L/C Issuer

76

 

8.10

Release of Collateral or Guarantors

77

 

8.11

Additional Secured Parties

77

 

8.12

Information Regarding Bank Products and Secured Rate Contracts

78

 

 

 

 

ARTICLE IX.       MISCELLANEOUS

78

 

 

 

9.1

Amendments and Waivers

78

 

9.2

Notices

80

 

9.3

Electronic Transmissions

81

 

9.4

No Waiver; Cumulative Remedies

82

 

9.5

Costs and Expenses

83

 

9.6

Indemnity

83

 

iii



 

TABLE OF CONTENTS

(continued)

 

 

 

Page

 

 

 

 

 

9.7

Marshaling; Payments Set Aside

84

 

9.8

Successors and Assigns

85

 

9.9

Assignments and Participations; Binding Effect

85

 

9.10

Non-Public Information; Confidentiality

87

 

9.11

Set-off; Sharing of Payments

89

 

9.12

Counterparts; Facsimile Signature

90

 

9.13

Severability

90

 

9.14

Captions

90

 

9.15

Independence of Provisions

91

 

9.16

Interpretation

91

 

9.17

No Third Parties Benefited

91

 

9.18

Governing Law and Jurisdiction

91

 

9.19

Waiver of Jury Trial

92

 

9.20

Entire Agreement; Release; Survival

92

 

9.21

Patriot Act

93

 

9.22

Replacement of Lender

93

 

9.23

Joint and Several

94

 

9.24

Creditor-Debtor Relationship

94

 

9.25

Actions in Concert

94

 

9.26

Keepwell

94

 

 

 

 

ARTICLE X.        TAXES, YIELD PROTECTION AND ILLEGALITY

95

 

 

 

10.1

Taxes

95

 

10.2

Illegality

97

 

10.3

Increased Costs and Reduction of Return

97

 

10.4

Funding Losses

99

 

10.5

Inability to Determine Rates

99

 

10.6

Reserves on LIBOR Rate Loans

100

 

10.7

Certificates of Lenders

100

 

 

 

 

ARTICLE XI.       DEFINITIONS

100

 

 

 

11.1

Defined Terms

100

 

11.2

Other Interpretive Provisions

129

 

11.3

Accounting Terms and Principles

130

 

11.4

Payments

131

 

iv



 

SCHEDULES

 

 

Schedule 1.1(b)

Revolving Loan Commitments

Schedule 3.5

Litigation

Schedule 3.7

ERISA

Schedule 3.9

Ownership of Property; Liens

Schedule 3.12

Environmental

Schedule 3.15

Labor Relations

Schedule 3.16

Intellectual Property

Schedule 3.18

Insurance

Schedule 3.19

Ventures, Subsidiaries and Affiliates; Outstanding Stock

Schedule 3.20

Jurisdiction of Organization; Chief Executive Office

Schedule 3.21

Locations of Inventory, Equipment and Books and Records

Schedule 3.22

Deposit Accounts and Other Accounts

Schedule 3.23

Government Contracts

Schedule 3.25

Bonding

Schedule 3.31

Regulatory Matters

Schedule 4.15

Post-Closing Obligations

Schedule 5.1

Liens

Schedule 5.4

Investments

Schedule 5.5

Indebtedness

Schedule 5.6

Transactions with Affiliates

Schedule 5.9

Contingent Obligations

Schedule 11.1A

Omitted

Schedule 11.1B

Subordinated Indebtedness

 

 

EXHIBITS

 

 

Exhibit 1.1(c) 

Form of L/C Request

Exhibit 1.1(d)

Form of Swing Loan Request

Exhibit 1.6

Form of Notice of Conversion/Continuation

Exhibit 2.1

Closing Checklist

Exhibit 4.2(b)

Form of Compliance Certificate

Exhibit 11.1(a)

Form of Assignment

Exhibit 11.1(b)

Form of Borrowing Base Certificate

Exhibit 11.1(c)

Form of Notice of Borrowing

Exhibit 11.1(d)

Form of Revolving Note

Exhibit 11.1(e)

Form of Swingline Note

 

v


 

AMENDED AND RESTATED
CREDIT AGREEMENT

 

This AMENDED AND RESTATED CREDIT AGREEMENT (including all exhibits and schedules hereto, as the same may be amended, modified and/or restated from time to time, this “ Agreement ”) is entered into as of June 26, 2014, by and among Diplomat Pharmacy, Inc., a Michigan corporation (the “ Borrower ”), the other Persons party hereto that are designated as a “Credit Party”, General Electric Capital Corporation, a Delaware corporation (in its individual capacity, “ GE Capital ”), in its capacity as Agent for the several financial institutions from time to time party to this Agreement (collectively, the “ Lenders ” and individually each a “ Lender ”) and for itself as Swingline Lender, and such Lenders.

 

W I T N E S S E T H:

 

WHEREAS, on July 20, 2012, the Borrower, the other Credit Parties party thereto, Agent and the lenders party thereto (the “ Existing Lenders ”), entered into that certain Credit Agreement, as amended by the First Amendment thereto dated as of August 21, 2012, but effective as of August 14, 2012, the Second Amendment thereto dated as of December 30, 2012, the Third Amendment thereto dated as of November 12, 2013, the Fourth Amendment thereto dated as of December 13, 2013, the Fifth Amendment thereto and Joinder dated as of December 16, 2013, the Sixth Amendment thereto dated as of January 23, 2014 and the Seventh Amendment thereto dated as of March 31, 2014 (collectively, the “ Existing Credit Agreement ”) and certain other “Loan Documents” under and as defined therein (collectively, the “ Existing Loan Documents ”), pursuant to which the Existing Lenders provided a $85,000,000 revolving credit facility to the Borrower and certain other financial accommodations to or for the benefit of Borrower and the other Credit Parties upon the terms and conditions contained therein.

 

WHEREAS, the Borrower has requested that the Existing Credit Agreement and certain other Existing Loan Documents be amended and restated in order to, among other things, provide for a $120,000,000 revolving credit facility on the terms and conditions set forth herein and make certain other amendments to the Existing Credit Agreement, and the Agent and Lenders are willing to do so in accordance with the terms and conditions set forth herein and in the other Loan Documents (as defined below).

 

WHEREAS, the Borrower has agreed that all of its Obligations under the Loan Documents will continue to be secured by a Lien in favor of Agent, for the benefit of Agent and the other Secured Parties, upon substantially all of its existing and after acquired Property.

 

WHEREAS, subject to the terms hereof, each Subsidiary of the Borrower has agreed that it will continue to guaranty all of the Obligations under the Loan Documents and that all of such Obligations will continue to be secured by a Lien in favor of the Agent, for the benefit of Agent and the other Secured Parties, upon substantially all of its Property;

 

NOW, THEREFORE, in consideration of the mutual agreements, provisions and covenants contained herein, the parties hereto agree, and the Existing Credit Agreement is hereby amended and restated in its entirety, as follows:

 



 

ARTICLE I.
THE CREDITS

 

1.1                                Amounts and Terms of Commitments .

 

(a)                                  [Reserved]

 

(b)                                  The Revolving Credit .

 

(i)                                      Subject to the terms and conditions of this Agreement and in reliance upon the representations and warranties of the Credit Parties contained herein, each Lender severally and not jointly agrees to make Loans to the Borrower (each such Loan, a “ Revolving Loan ”) from time to time on any Business Day during the period from the Closing Date through the Final Availability Date, in an aggregate amount not to exceed at any time outstanding the amount set forth opposite such Lender’s name in Schedule 1.1(b)  under the heading “Revolving Loan Commitments” (such amount as the same may be reduced or increased from time to time in accordance with this Agreement, being referred to herein as such Lender’s “ Revolving Loan Commitment ”); provided , however , that, after giving effect to any Borrowing of Revolving Loans, the aggregate principal amount of all outstanding Revolving Loans shall not exceed the Maximum Revolving Loan Balance.  Subject to the other terms and conditions hereof, amounts borrowed under this Section 1.1(b)  may be repaid and reborrowed from time to time.  The “ Maximum Revolving Loan Balance ” from time to time will be the lesser of:

 

(x)                                  the Borrowing Base (as calculated pursuant to the Borrowing Base Certificate and including applicable Reserves imposed by Agent in its Permitted Discretion) in effect from time to time, or

 

(y)                                  the Aggregate Revolving Loan Commitment then in effect;

 

less , in either case, the sum of (x) the aggregate amount of Letter of Credit Obligations plus (y) outstanding Swing Loans.

 

(ii)                                   If at any time the then outstanding principal balance of Revolving Loans exceeds the Maximum Revolving Loan Balance, then the Borrower shall immediately prepay outstanding Revolving Loans and then cash collateralize outstanding Letters of Credit in an amount sufficient to eliminate such excess in accordance herewith and in a manner satisfactory to the L/C Issuers.

 

(c)                                   Letters of Credit .

 

(i)                                      Conditions .  On the terms and subject to the conditions contained herein, the Borrower may request that one or more L/C Issuers Issue, in accordance with such L/C Issuers’ usual and customary business practices and for the account of the Borrower, Letters of Credit (denominated in Dollars) from time to time on any Business Day during the period from the Closing Date through the earlier of (x) the Final Availability Date and (y) seven (7) days prior to the date specified in clause (a)  of the definition of Revolving Termination Date; provided , however , that no L/C Issuer shall Issue any Letter of Credit upon the occurrence of any of the following or, if after giving effect to such Issuance:

 

2



 

(A)                                (i) Availability would be less than zero or (ii) the Letter of Credit Obligations for all Letters of Credit would exceed $3,000,000 (the “ L/C Sublimit ”);

 

(B)                                the expiration date of such Letter of Credit (i) is not a Business Day, (ii) is more than one year after the date of Issuance thereof or (iii) is later than seven (7) days prior to the date specified in clause (a)  of the definition of Revolving Termination Date; provided , however , that any Letter of Credit with a term not exceeding one year may provide for its renewal for additional periods not exceeding one year as long as (x) each of the Borrower and such L/C Issuer have the option to prevent such renewal before the expiration of such term or any such period and (y) neither such L/C Issuer nor the Borrower shall permit any such renewal to extend such expiration date beyond the date set forth in clause (iii)  above; or

 

(C)                                (i) any fee due in connection with, and on or prior to, such Issuance has not been paid, (ii) such Letter of Credit is requested to be Issued in a form that is not acceptable to such L/C Issuer or (iii) such L/C Issuer shall not have received, each in form and substance reasonably acceptable to it and duly executed by the Borrower, the documents that such L/C Issuer generally uses in the Ordinary Course of Business for the Issuance of letters of credit of the type of such Letter of Credit (collectively, the “ L/C Reimbursement Agreement ”).

 

Furthermore, GE Capital as an L/C Issuer may elect only to Issue Letters of Credit in its own name and may only Issue Letters of Credit to the extent permitted by Requirements of Law, and such Letters of Credit may not be accepted by certain beneficiaries such as insurance companies.  For each Issuance, the applicable L/C Issuer may, but shall not be required to, determine that, or take notice whether, the conditions precedent set forth in Section 2.2 have been satisfied or waived in connection with the Issuance of any Letter of Credit; provided , however , that no Letter of Credit shall be Issued during the period starting on the first Business Day after the receipt by such L/C Issuer of notice from Agent or the Required Lenders that any condition precedent contained in Section 2.2 is not satisfied and ending on the date all such conditions are satisfied or duly waived.

 

Notwithstanding anything else to the contrary herein, if any Lender is a Non-Funding Lender or Impacted Lender, no L/C Issuer shall be obligated to Issue any Letter of Credit unless (w) the Non-Funding Lender or Impacted Lender has been replaced in accordance with Section 9.9 or Section 9.22 , (x) the Letter of Credit Obligations of such Non-Funding Lender or Impacted Lender have been cash collateralized, or (y) the Revolving Loan Commitments of the other Lenders have been increased by an amount sufficient to satisfy Agent that all future Letter of Credit Obligations will be covered by all Lenders that are not Non-Funding Lenders or Impacted Lenders, or (z) the Letter of Credit Obligations of such Non-Funding Lender or Impacted Lender have been reallocated to other Lenders in a manner consistent with Section 1.11(e)(ii) .

 

3



 

(ii)                                   Notice of Issuance .  The Borrower shall give the relevant L/C Issuer and Agent a notice of any requested Issuance of any Letter of Credit, which shall be effective only if received by such L/C Issuer and Agent not later than 2:00 p.m. (New York time) on the third Business Day prior to the date of such requested Issuance.  Such notice shall be made in a writing or Electronic Transmission substantially in the form of Exhibit 1.1(c)  duly completed or in a writing in any other form acceptable to such L/C Issuer (an “ L/C Request ”).

 

(iii)                                Reporting Obligations of L/C Issuers .  Each L/C Issuer agrees to provide Agent, in form and substance satisfactory to Agent, each of the following on the following dates:  (A) (i) on or prior to any Issuance of any Letter of Credit by such L/C Issuer, (ii) immediately after any drawing under any such Letter of Credit or (iii) immediately after any payment (or failure to pay when due) by the Borrower of any related L/C Reimbursement Obligation, notice thereof, which shall contain a detailed description of such Issuance, drawing or payment, and Agent shall provide copies of such notices to each Lender reasonably promptly after receipt thereof; (B) upon the request of Agent (or any Lender through Agent), copies of any Letter of Credit Issued by such L/C Issuer and any related L/C Reimbursement Agreement and such other documents and information as may reasonably be requested by Agent; and (C) on the first Business Day of each calendar week, a schedule of the Letters of Credit Issued by such L/C Issuer, in form and substance reasonably satisfactory to Agent, setting forth the Letter of Credit Obligations for such Letters of Credit outstanding on the last Business Day of the previous calendar week.

 

(iv)                               Acquisition of Participations .  Upon any Issuance of a Letter of Credit in accordance with the terms of this Agreement resulting in any increase in the Letter of Credit Obligations, each Lender shall be deemed to have acquired, without recourse or warranty, an undivided interest and participation in such Letter of Credit and the related Letter of Credit Obligations in an amount equal to its Commitment Percentage of such Letter of Credit Obligations.

 

(v)                                  Reimbursement Obligations of the Borrower .  The Borrower agrees to pay to the L/C Issuer of any Letter of Credit, or to Agent for the benefit of such L/C Issuer, each L/C Reimbursement Obligation owing with respect to such Letter of Credit no later than the first Business Day after the Borrower receives notice from such L/C Issuer or from Agent that payment has been made under such Letter of Credit or that such L/C Reimbursement Obligation is otherwise due (the “ L/C Reimbursement Date ”) with interest thereon computed as set forth in clause (A)  below.  In the event that any L/C Reimbursement Obligation is not repaid by the Borrower as provided in this Section 1.1(c)(v)  (or any such payment by the Borrower is rescinded or set aside for any reason), such L/C Issuer shall promptly notify Agent of such failure (and, upon receipt of such notice, Agent shall notify each Lender) and, irrespective of whether such notice is given, such L/C Reimbursement Obligation shall be payable on demand by the Borrower with interest thereon computed (A) from the date on which such L/C Reimbursement Obligation arose to the L/C Reimbursement Date, at the interest rate applicable during such period to Revolving Loans that are Base Rate Loans and (B) thereafter until payment in full, at the interest rate applicable during such period to past due Revolving Loans that are Base Rate Loans.

 

4



 

(vi)                               Reimbursement Obligations of the Revolving Credit Lenders .

 

(1)                                  Upon receipt of the notice described in Section 1.1(c)(v)  above from Agent, each Lender shall pay to Agent for the account of such L/C Issuer its Commitment Percentage of such Letter of Credit Obligations (as such amount may be increased pursuant to Section 1.11(e)(ii) ).

 

(2)                                  By making any payments described in Section 1.1(c)(vi)(1)  above (other than during the continuation of an Event of Default under Section 7.1(f)  or 7.1(g) ), such Lender shall be deemed to have made a Revolving Loan to the Borrower, which, upon receipt thereof by Agent for the benefit of such L/C Issuer, the Borrower shall be deemed to have used in whole to repay such L/C Reimbursement Obligation.  Any such payment that is not deemed a Revolving Loan shall be deemed a funding by such Lender of its participation in the applicable Letter of Credit and the Letter of Credit Obligation in respect of the related L/C Reimbursement Obligations.  Such participation shall not otherwise be required to be funded.  Following receipt by any L/C Issuer of any payment from any Lender pursuant to this Section 1.1(c)(vi)  with respect to any portion of any L/C Reimbursement Obligation, such L/C Issuer shall promptly pay to Agent, for the benefit of such Lender, all amounts received by such L/C Issuer (or to the extent such amounts shall have been received by Agent for the benefit of such L/C Issuer, Agent shall promptly pay to such Lender all amounts received by Agent for the benefit of such L/C Issuer) with respect to such portion.

 

(vii)                            Obligations Absolute .  The obligations of the Borrower and the Lenders pursuant to Sections 1.1(c)(iv) , (c)(v)  and (c)(vi)  above shall be absolute, unconditional and irrevocable and performed strictly in accordance with the terms of this Agreement irrespective of (A) (i) the invalidity or unenforceability of any term or provision in any Letter of Credit, any document transferring or purporting to transfer a Letter of Credit, any Loan Document (including the sufficiency of any such instrument), or any modification to any provision of any of the foregoing, (ii) any document presented under a Letter of Credit being forged, fraudulent, invalid, insufficient or inaccurate in any respect or failing to comply with the terms of such Letter of Credit or (iii) any loss or delay, including in the transmission of any document, (B) the existence of any setoff, claim, abatement, recoupment, defense or other right that any Person (including any Credit Party) may have against the beneficiary of any Letter of Credit or any other Person, whether in connection with any Loan Document or any other Contractual Obligation or transaction, or the existence of any other withholding, abatement or reduction, (C) in the case of the obligations of any Lender, (i) the failure of any condition precedent set forth in Section 2.2 to be satisfied (each of which conditions precedent the Lenders hereby irrevocably waive) or (ii) any adverse change in the condition (financial or otherwise) of any Credit Party and (D) any other act or omission to act or delay of any kind of Agent, any Lender or any other Person or any other event or circumstance whatsoever, whether or not similar to any of the foregoing, that might, but for the provisions of this Section 1.1(c)(vii) , constitute a legal or equitable discharge of any obligation of the Borrower or any Lender hereunder.  No provision hereof shall be deemed to waive or limit the Borrower’s right to seek repayment of any payment of any L/C Reimbursement Obligations from the L/C Issuer under the terms of the applicable L/C Reimbursement Agreement or applicable law.  Nothing herein shall excuse L/C Issuer for liability to the extent such liability has resulted primarily from the gross negligence or willful misconduct of L/C Issuer under the terms of the applicable L/C Reimbursement Agreement as determined by a court of competent jurisdiction in a final non-appealable judgment or order.

 

5



 

(d)                                  Swing Loans .

 

(i)                                      Availability .  Subject to the terms and conditions of this Agreement and in reliance upon the representations and warranties of the Credit Parties contained herein, the Swingline Lender may, in its sole discretion, make Loans (each a “ Swing Loan ”) available to the Borrower under the Revolving Loan Commitments from time to time on any Business Day during the period from the Closing Date through the Final Availability Date in an aggregate principal amount at any time outstanding not to exceed its Swingline Commitment; provided , however , that the Swingline Lender may not make any Swing Loan (x) to the extent that after giving effect to such Swing Loan, the aggregate principal amount of all Revolving Loans would exceed the Maximum Revolving Loan Balance and (y) during the period commencing on the first Business Day after it receives notice from Agent or the Required Lenders that one or more of the conditions precedent contained in Section 2.2 are not satisfied and ending when such conditions are satisfied or duly waived.  In connection with the making of any Swing Loan, the Swingline Lender may but shall not be required to determine that, or take notice whether, the conditions precedent set forth in Section 2.2 have been satisfied or waived.  Each Swing Loan shall be a Base Rate Loan and must be repaid as provided herein, but in any event must be repaid in full on the Revolving Termination Date.  Within the limits set forth in the first sentence of this Section 1.1(d)(i) , amounts of Swing Loans repaid may be reborrowed under this Section 1.1(d)(i) .

 

(ii)                                   Borrowing Procedures .  In order to request a Swing Loan, the Borrower shall give to Agent a notice to be received not later than 2:00 p.m. (New York time) on the day of the proposed Borrowing, which shall be made in a writing or in an Electronic Transmission substantially in the form of Exhibit 1.1(d)  or in a writing in any other form acceptable to Agent duly completed (a “ Swingline Request ”).  In addition, if any Notice of Borrowing of Revolving Loans requests a Borrowing of Base Rate Loans, the Swingline Lender may, notwithstanding anything else to the contrary herein, make a Swing Loan to the Borrower in an aggregate amount not to exceed such proposed Borrowing, and the aggregate amount of the corresponding proposed Borrowing shall be reduced accordingly by the principal amount of such Swing Loan.  Agent shall promptly notify the Swingline Lender of the details of the requested Swing Loan.  Upon receipt of such notice and subject to the terms of this Agreement, the Swingline Lender may make a Swing Loan available to the Borrower by making the proceeds thereof available to Agent and, in turn, Agent shall make such proceeds available to the Borrower on the date set forth in the relevant Swingline Request or Notice of Borrowing.

 

(iii)                                Refinancing Swing Loans .

 

(1)                                  The Swingline Lender may at any time (and shall, no less frequently than once each week) forward a demand to Agent (which Agent shall, upon receipt, forward to each Lender) that each Lender pay to Agent, for the account of the Swingline Lender, such Lender’s Commitment Percentage of the outstanding Swing Loans (as such amount may be increased pursuant to Section 1.11(e)(ii) ).

 

(2)                                  Each Lender shall pay the amount owing by it to Agent for the account of the Swingline Lender on the Business Day following receipt of the notice or demand therefor.  Payments received by Agent after 1:00 p.m. (New York time) may, in Agent’s

 

6



 

discretion be deemed received on the next Business Day.  Upon receipt by Agent of such payment (other than during the continuation of any Event of Default under Section 7.1(f)  or 7.1(g) ), such Lender shall be deemed to have made a Revolving Loan to the Borrower, which, upon receipt of such payment by the Swingline Lender from Agent, the Borrower shall be deemed to have used in whole to refinance such Swing Loan.  In addition, regardless of whether any such demand is made, upon the occurrence of any Event of Default under Section 7.1(f)  or 7.1(g) , each Lender shall be deemed to have acquired, without recourse or warranty, an undivided interest and participation in each Swing Loan in an amount equal to such Lender’s Commitment Percentage of such Swing Loan.  If any payment made by any Lender as a result of any such demand is not deemed a Revolving Loan, such payment shall be deemed a funding by such Lender of such participation.  Such participation shall not be otherwise required to be funded.  Upon receipt by the Swingline Lender of any payment from any Lender pursuant to this clause (iii)  with respect to any portion of any Swing Loan, the Swingline Lender shall promptly pay over to such Lender all payments of principal (to the extent received after such payment by such Lender) and interest (to the extent accrued with respect to periods after such payment) on account of such Swing Loan received by the Swingline Lender with respect to such portion.

 

(iv)                               Obligation to Fund Absolute .  Each Lender’s obligations pursuant to Section 1.1(d)(iii)  above shall be absolute, unconditional and irrevocable and shall be performed strictly in accordance with the terms of this Agreement under any and all circumstances whatsoever, including (A) the existence of any setoff, claim, abatement, recoupment, defense or other right that such Lender, any Affiliate thereof or any other Person may have against the Swingline Lender, Agent, any other Lender or L/C Issuer or any other Person, (B) the failure of any condition precedent set forth in Section 2.2 to be satisfied or the failure of the Borrower to deliver a Notice of Borrowing (each of which requirements the Lenders hereby irrevocably waive) and (C) any adverse change in the condition (financial or otherwise) of any Credit Party.

 

(e)                                   Incremental Increase .  Borrower may request that Lenders increase the size of the Revolving Loan Commitments or enter into one or more tranches of term loans (each, an “Incremental Term Loan” and together with any increase to the Revolving Loan Commitments, the “Incremental Facility”), in each case in minimum amounts of $10,000,000 and increments of $5,000,000 so long as, after giving effect thereto, the aggregate amount of such increases in the Revolving Loan Commitments and all such Incremental Term Loans does not exceed $25,000,000, and the Incremental Facility shall be on terms acceptable to Agent and Lenders, including the following:

 

(i)                                      on a pro forma basis for the initial borrowing under any such Incremental Facility and the application of the proceeds therefrom, no Default or Event of Default shall have occurred and be continuing;

 

(ii)                                   if the sum of the margin above LIBOR, fees, and discounts of the Incremental Facility, expressed as a percentage of such Incremental Facility, shall exceed the Applicable Margin then in effect for LIBOR Loans (in the case of an Incremental Term Loan, by more than 0.50%), then the Applicable Margin then in effect shall be automatically increased by such differential, effective upon the making of such Incremental Facility; and

 

7



 

(iii)                                any such Incremental Facility shall otherwise be on substantially the same terms and pursuant to the same documentation as the Revolving Loans (but allowing for amortization and prepayment provisions on terms acceptable to Agent and the Lenders); provided, that in the case of an Incremental Term Loan, Borrower shall deliver to Agent and the Lenders an amendment (an “Incremental Term Loan Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, each other applicable Credit Party, each Lender and Agent, to the extent necessary or appropriate in the opinion of Agent to give effect to any Incremental Term Loans to be made pursuant to this Section 1.1(e)   in each case on terms consistent with this Section 1.1(e) .

 

Any request under this Section 1.1(e)  shall be submitted by the Borrower in writing, through Agent, to each existing Lender who shall have the right on a first refusal basis to provide, in accordance with such Lender’s pro rata share of all Loans outstanding, the full principal amount of such Incremental Facility.  Borrower may also specify any fees that it proposes to offer to all Lenders (the “Increasing Lenders”) that agree to provide the Incremental Facility.  No Lender shall have any obligation, express or implied, to offer to assume any portion of the Incremental Facility, and any decision whether or not to do so shall be made in such Lender’s sole discretion.  Only the consent of each Increasing Lender shall be required for an increase in the principal amount of such Lender’s Revolving Loan Commitment.  No Lender which declines to provide any portion of the Incremental Facility may be replaced with respect to its existing Revolving Loan Commitment as a result thereof without such Lender’s consent.

 

Each Lender shall as soon as reasonably practicable specify in writing to Borrower and Agent the principal amount by which it is willing to increase its Revolving Loan Commitment or provide an Incremental Term Loan (provided that if such Lender does not so respond within fifteen (15) Business Days, it shall be deemed to have declined to provide any part of the Incremental Facility) and identify in such writing any increase in the Applicable Margin related thereto; provided, however, that Borrower shall have the right to rescind its request for an Incremental Term Loan within five (5) Business Days after receipt of any Lender’s written notice which contains an increase in the Applicable Margin for such Incremental Term Loan.

 

1.2                                Evidence of Loans; Notes .

 

(a)                                  [ Reserved ]

 

(b)                                  The Revolving Loans made by each Lender shall be evidenced by this Agreement and, if requested by such Lender, a Revolving Note payable to such Lender in an amount equal to such Lender’s Revolving Loan Commitment.

 

(c)                                   Swing Loans made by the Swingline Lender shall be evidenced by this Agreement and, if requested by such Lender, a Swingline Note in an amount equal to the Swingline Commitment.

 

1.3                                Interest .

 

(a)                                  Subject to Sections 1.3(c)  and 1.3(d) , each Loan shall bear interest on the outstanding principal amount thereof from the date when made at a rate per annum equal to

 

8



 

LIBOR or the Base Rate, as the case may be, plus the Applicable Margin; provided Swing Loans may not be LIBOR Rate Loans.  Each determination of an interest rate by Agent shall be conclusive and binding on the Borrower and the Lenders in the absence of manifest error.  All computations of fees and interest payable under this Agreement shall be made on the basis of a 360-day year and actual days elapsed.  Interest and fees shall accrue during each period during which interest or such fees are computed from the first day thereof to the last day thereof.

 

(b)                                  Interest on each Loan shall be paid in arrears on each Interest Payment Date.  Interest shall also be paid on the Revolving Termination Date.

 

(c)                                   At the election of Agent or the Required Lenders while any Event of Default exists (or automatically while any Event of Default under Section 7.1(a) , 7.1(f)  or 7.1(g)  exists), the Borrower shall pay interest (after as well as before entry of judgment thereon to the extent permitted by law) on the Loans under the Loan Documents from and after the date of occurrence of such Event of Default, at a rate per annum which is determined by adding two percent (2.0%) per annum to the Applicable Margin then in effect for such Loans (plus the LIBOR or Base Rate, as the case may be).  All such interest shall be payable on demand of Agent or the Required Lenders.

 

(d)                                  Anything herein to the contrary notwithstanding, the obligations of the Borrower hereunder shall be subject to the limitation that payments of interest shall not be required, for any period for which interest is computed hereunder, to the extent (but only to the extent) that contracting for or receiving such payment by the respective Lender would be contrary to the provisions of any law applicable to such Lender limiting the highest rate of interest which may be lawfully contracted for, charged or received by such Lender, and in such event the Borrower shall pay such Lender interest at the highest rate permitted by applicable law (“ Maximum Lawful Rate ”); provided , however , that if at any time thereafter the rate of interest payable hereunder is less than the Maximum Lawful Rate, the Borrower shall continue to pay interest hereunder at the Maximum Lawful Rate until such time as the total interest received by Agent, on behalf of Lenders, is equal to the total interest that would have been received had the interest payable hereunder been (but for the operation of this paragraph) the interest rate payable since the Closing Date as otherwise provided in this Agreement.

 

1.4                                Loan Accounts .

 

(a)                                  Agent, on behalf of the Lenders, shall record on its books and records the amount of each Loan made, the interest rate applicable, all payments of principal and interest thereon and the principal balance thereof from time to time outstanding.  Agent shall deliver to the Borrower on a monthly basis a loan statement setting forth such record for the immediately preceding calendar month.  Such record shall, absent manifest error, be conclusive evidence of the amount of the Loans made by the Lenders to the Borrower and the interest and payments thereon.  Any failure to so record or any error in doing so, or any failure to deliver such loan statement shall not, however, limit or otherwise affect the obligation of the Borrower hereunder (and under any Note) to pay any amount owing with respect to the Loans or provide the basis for any claim against Agent.

 

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(b)                                  Agent, acting as a non-fiduciary agent of the Borrower solely for tax purposes and solely with respect to the actions described in this Section 1.4(b) , shall establish and maintain at its address referred to in Section 9.2 (or at such other address as Agent may notify the Borrower) (A) a record of ownership (the “ Register ”) in which Agent agrees to register by book entry the interests (including any rights to receive payment hereunder) of Agent, each Lender and each L/C Issuer in the Revolving Loans, Swing Loans, L/C Reimbursement Obligations, and Letter of Credit Obligations, each of their obligations under this Agreement to participate in each Loan, Letter of Credit, Letter of Credit Obligations, and L/C Reimbursement Obligations, and any assignment of any such interest, obligation or right and (B) accounts in the Register in accordance with its usual practice in which it shall record (1) the names and addresses of the Lenders and the L/C Issuers (and each change thereto pursuant to Sections 9.9 and 9.22), (2) the Commitments of each Lender, (3) the amount of each Loan and each funding of any participation described in clause (A)  above, and for LIBOR Rate Loans, the Interest Period applicable thereto, (4) the amount of any principal or interest due and payable or paid, (5) the amount of the L/C Reimbursement Obligations due and payable or paid in respect of Letters of Credit and (6) any other payment received by Agent from the Borrower and its application to the Obligations.

 

(c)                                   Notwithstanding anything to the contrary contained in this Agreement, the Loans (including any Notes evidencing such Loans and, in the case of Revolving Loans, the corresponding obligations to participate in Letter of Credit Obligations and Swing Loans) and the L/C Reimbursement Obligations are registered obligations, the right, title and interest of the Lenders and the L/C Issuers and their assignees in and to such Loans or L/C Reimbursement Obligations, as the case may be, shall be transferable only upon notation of such transfer in the Register and no assignment thereof shall be effective until recorded therein.  This Section 1.4 and Section 9.9 shall be construed so that the Loans and L/C Reimbursement Obligations are at all times maintained in “registered form” within the meaning of Sections 163(f), 871(h)(2) and 881(c)(2) of the Code.

 

(d)                                  The Credit Parties, Agent, the Lenders and the L/C Issuers shall treat each Person whose name is recorded in the Register as a Lender or L/C Issuer, as applicable, for all purposes of this Agreement.  Information contained in the Register with respect to any Lender or any L/C Issuer shall be available for access by the Borrower, Agent, such Lender or such L/C Issuer during normal business hours and from time to time upon at least one Business Day’s prior notice.  No Lender or L/C Issuer shall, in such capacity, have access to or be otherwise permitted to review any information in the Register other than information with respect to such Lender or L/C Issuer unless otherwise agreed by Agent.

 

1.5                                Procedure for Revolving Credit Borrowing .

 

(a)                                  Each Borrowing of a Revolving Loan shall be made upon the Borrower’s irrevocable (subject to Section 10.5 ) written notice delivered to Agent substantially in the form of a Notice of Borrowing or in a writing in any other form acceptable to Agent, which notice must be received by Agent prior to 2:00 p.m. (New York time) (i) on the date which is three (3) Business Days prior to the requested Borrowing date in the case of each LIBOR Rate Loan, (ii) on the date which is three (3) Business Days prior to the requested Borrowing date of each Base Rate Loan in excess of $25,000,000, and (iii) on the date which is one (1) Business Day prior to

 

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the requested Borrowing date of each Base Rate Loan equal to or less than $25,000,000.  Such Notice of Borrowing shall specify:

 

(i)                                      the amount of the Borrowing (which shall be in an aggregate minimum principal amount of $250,000);

 

(ii)                                   the requested Borrowing date, which shall be a Business Day;

 

(iii)                                whether the Borrowing is to be comprised of LIBOR Rate Loans or Base Rate Loans; and

 

(iv)                               if the Borrowing is to be LIBOR Rate Loans, the Interest Period applicable to such Loans.

 

(b)                                  Upon receipt of a Notice of Borrowing, Agent will promptly notify each Lender of such Notice of Borrowing and of the amount of such Lender’s Commitment Percentage of the Borrowing.

 

(c)                                   Unless Agent is otherwise directed in writing by the Borrower, the proceeds of each requested Borrowing after the Closing Date will be made available to the Borrower by Agent by wire transfer of such amount to the Borrower pursuant to the wire transfer instructions specified on the signature page hereto.

 

1.6                                Conversion and Continuation Elections .

 

(a)                                  The Borrower shall have the option to (i) request that any Revolving Loan be made as a LIBOR Rate Loan, (ii) convert at any time all or any part of outstanding Loans (other than Swing Loans) from Base Rate Loans to LIBOR Rate Loans, (iii) convert any LIBOR Rate Loan to a Base Rate Loan, subject to Section 10.4 if such conversion is made prior to the expiration of the Interest Period applicable thereto, or (iv) continue all or any portion of any Loan as a LIBOR Rate Loan upon the expiration of the applicable Interest Period.  Any Loan or group of Loans having the same proposed Interest Period to be made or continued as, or converted into, a LIBOR Rate Loan must be in a minimum amount of $5,000,000.  Any such election must be made by Borrower by 2:00 p.m. (New York time) on the third Business Day prior to (1) the date of any proposed Revolving Loan which is to bear interest at LIBOR, (2) the end of each Interest Period with respect to any LIBOR Rate Loans to be continued as such, or (3) the date on which the Borrower wishes to convert any Base Rate Loan to a LIBOR Rate Loan for an Interest Period designated by Borrower in such election.  If no election is received with respect to a LIBOR Rate Loan by 2:00 p.m. (New York time) on the third Business Day prior to the end of the Interest Period with respect thereto, that LIBOR Rate Loan shall be converted to a Base Rate Loan at the end of its Interest Period.  The Borrower must make such election by notice to Agent in writing, including by Electronic Transmission.  In the case of any conversion or continuation, such election must be made pursuant to a written notice (a “ Notice of Conversion/Continuation ”) substantially in the form of Exhibit 1.6 or in a writing in any other form acceptable to Agent.  No Loan shall be made, converted into or continued as a LIBOR Rate Loan, if the conditions to Loans and Letters of Credit in Section 2.2 are not met at the time of such proposed conversion or continuation and Agent or Required Lenders have determined not to make or continue any Loan as a LIBOR Rate Loan as a result thereof.

 

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(b)            Upon receipt of a Notice of Conversion/Continuation, Agent will promptly notify each Lender thereof.  In addition, Agent will, with reasonable promptness, notify the Borrower and the Lenders of each determination of LIBOR; provided that any failure to do so shall not relieve the Borrower of any liability hereunder or provide the basis for any claim against Agent.  All conversions and continuations shall be made pro rata according to the respective outstanding principal amounts of the Loans held by each Lender with respect to which the notice was given.

 

(c)            Notwithstanding any other provision contained in this Agreement, after giving effect to any Borrowing, or to any continuation or conversion of any Loans, there shall not be more than five (5) different Interest Periods in effect.

 

1.7           Optional Prepayments .

 

The Borrower may at any time prepay the Loans in whole or in part (without a corresponding reduction in the Aggregate Revolving Commitments), in each instance, without penalty or premium except as provided in Section 10.4 .  The Borrower may at any time on at least 10 days’ prior written notice to Agent terminate the Aggregate Revolving Commitments in full (but not in part), and the Borrower shall repay to the Lenders in full the aggregate principal amount of the Revolving Loans and Swing Loans outstanding on such date, together with any amounts required pursuant to Section 10.4 .

 

1.8           Revolving Loan Repayment .

 

The Borrower shall repay to the Lenders in full on the date specified in clause (a)  of the definition of “Revolving Termination Date” the aggregate principal amount of the Revolving Loans and Swing Loans outstanding on the Revolving Termination Date.

 

1.9           Fees .

 

(a)            Fees .  The Borrower shall pay to Agent, for Agent’s own account, fees in the amounts and at the times set forth in a letter agreement between the Borrower and Agent dated April 27, 2012 (as amended from time to time, the “ Fee Letter ”).

 

(b)            Unused Commitment Fee .  The Borrower shall pay to Agent a fee (the “ Unused Commitment Fee ”) for the account of each Lender in an amount equal to:

 

(i)             the average daily balances of the Revolving Loan Commitment of such Lender during the preceding calendar month, less

 

(ii)            the sum of (x) the average daily balance of all Revolving Loans held by such Lender plus (y) the average daily amount of Letter of Credit Obligations held by such Lender, plus (z) in the case of the Swingline Lender, the average daily balance of all outstanding Swing Loans held by such Swingline Lender, in each case, during the preceding calendar month; provided , that in no event shall the amount computed pursuant to clauses (i)  and (ii)  with respect to the Swingline Lender be less than zero,

 

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(iii)           multiplied by the applicable percentage per annum listed below corresponding to the average unused daily balance of the Revolving Loan Commitment:

 

Average Unused Daily Balance
(based upon a percentage of the
Revolving Credit Facility)

 

Percentage Per Annum

 

Greater than or equal to 66 2/3%

 

0.50

%

 

 

 

 

Greater than or equal to 33 1/3% but less than 66 2/3%

 

0.375

%

 

 

 

 

Less than 33 1/3%

 

0.25

%

 

The total fee paid by the Borrower will be equal to the sum of all of the fees due to the Lenders, subject to Section 1.11(e)(vi) .  Such fee shall be payable monthly in arrears on the first day of each calendar month following the date hereof. The Unused Commitment Fee provided in this Section 1.9(b)  shall accrue at all times from and after the execution and delivery of this Agreement.  For purposes of this Section 1.9(b) , the Revolving Loan Commitment of any Non-Funding Lender shall be deemed to be zero.

 

(c)            Letter of Credit Fee .  The Borrower agrees to pay to Agent for the ratable benefit of the Lenders, as compensation to such Lenders for Letter of Credit Obligations incurred hereunder, (i) without duplication of costs and expenses otherwise payable to Agent or Lenders hereunder or fees otherwise paid by the Borrower, all costs and expenses incurred by Agent or any Lender on account of such Letter of Credit Obligations, and (ii) for each calendar month during which any Letter of Credit Obligation shall remain outstanding, a fee (the “ Letter of Credit Fee ”) in an amount equal to the product of the average daily undrawn face amount of all Letters of Credit Issued, guaranteed or supported by risk participation agreements multiplied by a per annum rate equal to the Applicable Margin with respect to Revolving Loans which are LIBOR Rate Loans; provided , however , that at Agent’s or Required Lenders’ option, while an Event of Default exists (or automatically while an Event of Default under Section 7.1(a) , 7.1(f)  or 7.1(g)  exists), such rate shall be increased by two percent (2.00%) per annum.  Such fee shall be paid to Agent for the benefit of the Lenders in arrears, on the first day of each calendar month and on the date on which all L/C Reimbursement Obligations have been discharged.  In addition, the Borrower shall pay to Agent, any L/C Issuer or any prospective L/C Issuer, as appropriate, on demand, such L/C Issuer’s or prospective L/C Issuer’s customary fees at then prevailing rates, without duplication of fees otherwise payable hereunder (including all per annum fees), charges and expenses of such L/C Issuer or prospective L/C Issuer in respect of the application for, and the Issuance, negotiation, acceptance, amendment, transfer and payment of, each Letter of Credit or otherwise payable pursuant to the application and related documentation under which such Letter of Credit is Issued.

 

1.10         Payments by the Borrower .

 

(a)            All payments (including prepayments) to be made by each Credit Party on account of principal, interest, fees and other amounts required hereunder shall be made without

 

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set off, recoupment, counterclaim or deduction of any kind, shall, except as otherwise expressly provided herein, be made to Agent (for the ratable account of the Persons entitled thereto) at the address for payment specified in the signature page hereof in relation to Agent (or such other address as Agent may from time to time specify in accordance with Section 9.2 ), including payments utilizing the ACH system, and shall be made in Dollars and by wire transfer or ACH transfer in immediately available funds (which shall be the exclusive means of payment hereunder), no later than 1:00 p.m. (New York time) on the date due.  Any payment which is received by Agent later than 1:00 p.m. (New York time) on any Business Day or at any time on a day that is not a Business Day shall be deemed to have been received on the immediately succeeding Business Day and any applicable interest or fee shall continue to accrue.  The Borrower and each other Credit Party hereby irrevocably waives the right to direct the application during the continuance of an Event of Default of any and all payments in respect of any Obligation and any proceeds of Collateral.  The Borrower hereby authorizes Agent and each Lender to make a Revolving Loan (which shall be a Base Rate Loan and which may be a Swing Loan) to pay interest, principal (including Swing Loans), L/C Reimbursement Obligations, agent fees, Unused Commitment Fees, Letter of Credit Fees and any other fees, costs or expenses payable by the Borrower or any of its Subsidiaries hereunder or under the other Loan Documents, in each instance, on the date due.

 

(b)            Subject to the provisions set forth in the definition of “Interest Period” herein, if any payment hereunder shall be stated to be due on a day other than a Business Day, such payment shall be made on the next succeeding Business Day, and such extension of time shall in such case be included in the computation of interest or fees, as the case may be.

 

(c)            During the continuance of an Event of Default, Agent may, and shall upon the direction of Required Lenders apply any and all payments received by Agent in respect of any Obligation in accordance with clauses first through sixth below.  Notwithstanding any provision herein to the contrary, all payments made by Credit Parties to Agent after any or all of the Obligations have been accelerated (so long as such acceleration has not been rescinded), including proceeds of Collateral, shall be applied as follows:

 

first , to payment of costs and expenses, including Attorney Costs, of Agent payable or reimbursable by the Credit Parties under the Loan Documents;

 

second , to payment of Attorney Costs of Lenders payable or reimbursable by the Borrower under this Agreement;

 

third , to payment of all accrued unpaid interest and principal on any Swing Loans and fees owed to any Swingline Lender;

 

fourth , to payment of all accrued unpaid interest on the Obligations and fees owed to Agent, Lenders and L/C Issuers;

 

fifth , to payment of principal of the Obligations including, without limitation, L/C Reimbursement Obligations then due and payable, any Obligations under any Secured Rate Contract, Obligations constituting Bank Products (other than Obligations under Bank Products which are commercial credit cards and stored value cards), and cash

 

14



 

collateralization of unmatured L/C Reimbursement Obligations to the extent not then due and payable);

 

sixth , to payment of any other amounts owing constituting Obligations (including Obligations under Bank Products which are commercial credit cards and stored value cards); and

 

seventh , any remainder shall be for the account of and paid to whoever may be lawfully entitled thereto.

 

In carrying out the foregoing, (i) amounts received shall be applied in the numerical order provided until exhausted prior to the application to the next succeeding category, (ii) each of the Lenders or other Persons entitled to payment shall receive an amount equal to its pro rata share of amounts available to be applied pursuant to clauses third, fourth and fifth above and (iii) no payments by a Guarantor and no proceeds of Collateral of a Guarantor shall be applied to Excluded Rate Contract Obligations of such Guarantor.

 

1.11         Payments by the Lenders to Agent; Settlement .

 

(a)            Agent may, on behalf of Lenders, disburse funds to the Borrower for Loans requested.  Each Lender shall reimburse Agent on demand for all funds disbursed on its behalf by Agent, or if Agent so requests, each Lender will remit to Agent its Commitment Percentage of any Loan before Agent disburses same to the Borrower.  If Agent elects to require that each Lender make funds available to Agent prior to disbursement by Agent to the Borrower, Agent shall advise each Lender by telephone or fax of the amount of such Lender’s Commitment Percentage of the Loan requested by the Borrower no later than the Business Day prior to the scheduled Borrowing date applicable thereto, and each such Lender shall pay Agent such Lender’s Commitment Percentage of such requested Loan, in same day funds, by wire transfer to Agent’s account, as set forth on Agent’s signature page hereto, no later than 1:00 p.m. (New York time) on such scheduled Borrowing date.  Nothing in this Section 1.11(a)  or elsewhere in this Agreement or the other Loan Documents, including, without limitation, the remaining provisions of Section 1.11 , shall be deemed to require Agent to advance funds on behalf of any Lender or to relieve any Lender from its obligation to fulfill its Commitments hereunder or to prejudice any rights that Agent, any Lender or the Borrower may have against any Lender as a result of any default by such Lender hereunder.

 

(b)            At least once each calendar week or more frequently at Agent’s election (each, a “ Settlement Date ”), Agent shall advise each Lender by telephone or fax of the amount of such Lender’s Commitment Percentage of principal, interest and Fees paid for the benefit of Lenders with respect to each applicable Loan.  Agent shall pay to each Lender such Lender’s Commitment Percentage (except as otherwise provided in Section 1.1(c)(vi)  and Section 1.11(e) ) of principal, interest and fees paid by the Borrower since the previous Settlement Date for the benefit of such Lender on the Loans held by it.  Such payments shall be made by wire transfer to such Lender not later than 2:00 p.m. (New York time) on the next Business Day following each Settlement Date.

 

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(c)            Availability of Lender’s Commitment Percentage .  Agent may assume that each Lender will make its Commitment Percentage of each Revolving Loan available to Agent on each Borrowing date.  If such Commitment Percentage is not, in fact, paid to Agent by such Lender when due, Agent will be entitled to recover such amount on demand from such Lender without setoff, counterclaim or deduction of any kind.  If any Lender fails to pay the amount of its Commitment Percentage forthwith upon Agent’s demand, Agent shall promptly notify the Borrower and the Borrower shall promptly (and in any event within three Business Days of receipt of Agent’s notice) repay such amount to Agent.  Nothing in this Section 1.11(c)  shall be deemed to require Agent to advance funds on behalf of any Lender or to relieve any Lender from its obligation to fulfill its Commitments hereunder or to prejudice any rights that the Borrower may have against any Lender as a result of any default by such Lender hereunder.  Without limiting the provisions of Section 1.11(b) , to the extent that Agent advances funds to the Borrower on behalf of any Lender and is not reimbursed therefor on the same Business Day as such advance is made, Agent shall be entitled to retain for its account all interest accrued on such advance from the date such advance was made until reimbursed by the applicable Lender.

 

(d)            Return of Payments .

 

(i)             If Agent pays an amount to a Lender under this Agreement in the belief or expectation that a related payment has been or will be received by Agent from the Borrower and such related payment is not received by Agent, then Agent will be entitled to recover such amount from such Lender on demand without setoff, counterclaim or deduction of any kind.

 

(ii)            If Agent determines at any time that any amount received by Agent under this Agreement or any other Loan Document must be returned to any Credit Party or paid to any other Person pursuant to any insolvency law or otherwise, then, notwithstanding any other term or condition of this Agreement or any other Loan Document, Agent will not be required to distribute any portion thereof to any Lender.  In addition, each Lender will repay to Agent on demand any portion of such amount that Agent has distributed to such Lender, together with interest at such rate, if any, as Agent is required to pay to the Borrower or such other Person, without setoff, counterclaim or deduction of any kind, and Agent will be entitled to set-off against future distributions to such Lender any such amounts (with interest) that are not repaid on demand.

 

(e)            Non-Funding Lenders; Procedures .

 

(i)             Responsibility .  The failure of any Non-Funding Lender to make any Revolving Loan, Letter of Credit Obligation or any payment required by it, or to make any payment required by it under any Loan Document, or to fund any purchase of any participation to be made or funded by it (including, without limitation, with respect to any Swing Loan) on the date specified therefor shall not relieve any other Lender (each such other Lender, an “ Other Lender ”) of its obligations to make such loan, fund the purchase of any such participation, or make any other such payment required on such date, and neither Agent nor, other than as expressly set forth herein, any other Lender shall be responsible for the failure of any Non-Funding Lender to make a loan, fund the purchase of a participation or make any other payment required under any Loan Document.

 

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(ii)            Reallocation .  If any Lender is a Non-Funding Lender, all or a portion of such Non-Funding Lender’s Letter of Credit Obligations (unless such Lender is the L/C Issuer that Issued such Letter of Credit) and reimbursement obligations with respect to Swing Loans shall, at Agent’s election at any time or upon any L/C Issuer’s or Swingline Lender’s, as applicable, written request delivered to Agent (whether before or after the occurrence of any Default or Event of Default), be reallocated to and assumed by the Lenders that are not Non-Funding Lenders or Impacted Lenders pro rata in accordance with their Commitment Percentages of the Aggregate Revolving Loan Commitment (calculated as if the Non-Funding Lender’s Commitment Percentage was reduced to zero and each other Lender’s Commitment Percentage had been increased proportionately), provided that no Lender shall be reallocated any such amounts or be required to fund any amounts that would cause the sum of its outstanding Revolving Loans, outstanding Letter of Credit Obligations, amounts of its participations in Swing Loans and its pro rata share of unparticipated amounts in Swing Loans to exceed its Revolving Loan Commitment.

 

(iii)           Voting Rights .  Notwithstanding anything set forth herein to the contrary, including Section 9.1 , a Non-Funding Lender shall not have any voting or consent rights under or with respect to any Loan Document or constitute a “Lender” (or be, or have its Loans and Commitments, included in the determination of “Required Lenders” or “Lenders directly affected” pursuant to Section 9.1 ) for any voting or consent rights under or with respect to any Loan Document, provided that (A)  the Commitment of a Non-Funding Lender may not be increased, (B) the principal of a Non-Funding Lender’s Loans may not be reduced or forgiven, and (C) the interest rate applicable to Obligations owing to a Non-Funding Lender may not be reduced in such a manner that by its terms affects such Non-Funding Lender more adversely than other Lenders, in each case without the consent of such Non-Funding Lender.  Moreover, for the purposes of determining Required Lenders, the Loans, Letter of Credit Obligations, and Commitments held by Non-Funding Lenders shall be excluded from the total Loans and Commitments outstanding.

 

(iv)           Borrower Payments to a Non-Funding Lender .  Agent shall be authorized to use all payments received by Agent for the benefit of any Non-Funding Lender pursuant to this Agreement to pay in full the Aggregate Excess Funding Amount to the appropriate Secured Parties.  Following such payment in full of the Aggregate Excess Funding Amount, Agent shall be entitled to hold such funds as cash collateral in a non-interest bearing account up to an amount equal to such Non-Funding Lender’s unfunded Revolving Loan Commitment and to use such amount to pay such Non-Funding Lender’s funding obligations hereunder until the Obligations are paid in full in cash, all Letter of Credit Obligations have been discharged or cash collateralized and all Commitments have been terminated.  Upon any such unfunded obligations owing by a Non-Funding Lender becoming due and payable, Agent shall be authorized to use such cash collateral to make such payment on behalf of such Non-Funding Lender.  With respect to such Non-Funding Lender’s failure to fund Revolving Loans or purchase participations in Letters of Credit or Letter of Credit Obligations, any amounts applied by Agent to satisfy such funding shortfalls shall be deemed to constitute a Revolving Loan or amount of the participation required to be funded and, if necessary to effectuate the foregoing, the other Lenders shall be deemed to have sold, and such Non-Funding Lender shall be deemed to have purchased, Revolving Loans or Letter of Credit participation interests from the other Lenders until such time as the aggregate amount of the Revolving Loans and participations in

 

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Letters of Credit and Letter of Credit Obligations are held by the Lenders in accordance with their Commitment Percentages of the Aggregate Revolving Loan Commitment.  Any amounts owing by a Non-Funding Lender to Agent which are not paid when due shall accrue interest at the interest rate applicable during such period to Revolving Loans that are Base Rate Loans.  In the event that Agent is holding cash collateral of a Non-Funding Lender that cures pursuant to Section 1.11(e)(v)  or ceases to be a Non-Funding Lender pursuant to the definition of Non-Funding Lender, Agent shall return the unused portion of such cash collateral to such Lender. The “Aggregate Excess Funding Amount” of a Non-Funding Lender shall be the aggregate amount of (A) all unpaid obligations owing by such Lender to Agent, L/C Issuers, Swingline Lender, and other Lenders under the Loan Documents, including such Lender’s pro rata share of all Revolving Loans, Letter of Credit Obligations and Swing Loans, plus, without duplication, (B) all amounts of such Non-Funding Lender’s Letter of Credit Obligations and reimbursement obligations with respect to Swing Loans reallocated to other Lenders pursuant to Section 1.11(e)(ii)

 

(v)            Cure .  A Lender may cure its status as a Non-Funding Lender under clause (a)  of the definition of Non-Funding Lender if such Lender (A) fully pays to Agent, on behalf of the applicable Secured Parties, the Aggregate Excess Funding Amount, plus all interest due thereon and (B) timely funds the next Revolving Loan required to be funded by such Lender or makes the next reimbursement required to be made by such Lender.  Any such cure shall not relieve any Lender from liability for breaching its contractual obligations hereunder.

 

(vi)           Fees .  A Lender that is a Non-Funding Lender pursuant to clause (a)  of the definition of Non-Funding Lender shall not earn and shall not be entitled to receive, and the Borrower shall not be required to pay, such Lender’s portion of the Unused Commitment Fee during the time such Lender is a Non-Funding Lender pursuant to such clause (a) .  In the event that any reallocation of Letter of Credit Obligations occurs pursuant to Section 1.11(e)(ii) , during the period of time that such reallocation remains in effect, the Letter of Credit Fee payable with respect to such reallocated portion shall be payable to (A) all Lenders based on their pro rata share of such reallocation or (B) to the L/C Issuer for any remaining portion not reallocated to any other Lenders.

 

(f)             Procedures .  Agent is hereby authorized by each Credit Party and each other Secured Party to establish procedures (and to amend such procedures from time to time) to facilitate administration and servicing of the Loans and other matters incidental thereto.  Without limiting the generality of the foregoing, Agent is hereby authorized to establish procedures to make available or deliver, or to accept, notices, documents and similar items on, by posting to or submitting and/or completion on, E-Systems.

 

1.12         [Reserved]

 

1.13         Eligible Accounts .

 

All of the Accounts owned by each Credit Party and properly reflected as “Eligible Accounts” in the most recent Borrowing Base Certificate delivered by the Borrower to Agent shall be “ Eligible Accounts ” for purposes of this Agreement, except any Account to which any of the exclusionary criteria set forth below applies.  Agent shall have the right, in determining the

 

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Borrowing Base, to establish, modify or eliminate Reserves against Eligible Accounts from time to time in its Permitted Discretion.  In addition, Agent reserves the right, at any time and from time to time after the Closing Date, to adjust any of the applicable criteria and to establish new criteria and to adjust advance rates with respect to Eligible Accounts, in its Permitted Discretion, subject to the approval of Required Lenders in the case of adjustments or new criteria or changes in advance rates which have the effect of making more credit available.  Agent, in its Permitted Discretion, may further adjust the Borrowing Base by applying percentages (known as “liquidity factors”) to Eligible Accounts by payor class based upon any Borrowing Base Parties’ actual recent collection history for each such payor class (e.g., Medicare, Medicaid, commercial insurance, etc.) in a manner consistent with Agent’s underwriting practices and procedures.  Eligible Accounts shall not include the following Accounts of a Credit Party:

 

(a)            Past Due Accounts . Accounts that are not paid within the earlier of sixty (60) days following its due date or ninety (90) days following its original invoice date;

 

(b)            Cross Aged Accounts . Accounts that are the obligations of an Account Debtor if fifty percent (50%) or more of the Dollar amount of all Accounts owing by that Account Debtor are ineligible under Section 1.13 ;

 

(c)            Foreign Accounts . Accounts that are the obligations of an Account Debtor located in a foreign country other than Canada;

 

(d)            Government Accounts . Accounts that are the obligation of an Account Debtor that is the United States government or a political subdivision thereof, or any state, county or municipality or department, agency or instrumentality thereof (other than any Federal/State Healthcare Program Account Debtor to include, but not limited to, each of CMS, Medicare, Medicaid and TRICARE) unless Agent, in its sole discretion, has agreed to the contrary in writing, or the applicable Credit Party has complied with respect to such obligation with the Federal Assignment of Claims Act of 1940, or any applicable state, county or municipal law restricting the assignment thereof with respect to such obligation;

 

(e)            Contra Accounts . Accounts to the extent the Borrower or any Subsidiary thereof is liable for goods sold or services rendered by the applicable Account Debtor to the Borrower or any such Subsidiary but only to the extent of the potential offset;

 

(f)             Chargebacks/Partial Payments/Disputed . Any Account to the extent that any defense, counterclaim, setoff or dispute is asserted as to such Account;

 

(g)            Inter-Company/Affiliate Accounts . Accounts that arise from a sale to any Affiliate of any Credit Party;

 

(h)            Concentration Risk . Accounts (other than Accounts of any Federal/State Healthcare Program Account Debtor) to the extent that such Account, together with all other Accounts owing by such Account Debtor and its Affiliates as of any date of determination exceed twenty percent (20%) of all Eligible Accounts (including Accounts of any Federal/State Healthcare Program Account Debtor); provided , however, that only the portion of such Account which exceeds such twenty percent limitation shall be excluded hereunder;

 

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(i)             Credit Risk . Accounts that are otherwise determined to be unacceptable by Agent in its Permitted Discretion, upon the delivery of prior or contemporaneous notice (oral or written) of such determination to the Borrower;

 

(j)             Pre-Billing . Accounts with respect to which an invoice, reasonably acceptable to Agent in form and substance, has not been sent to the applicable Account Debtor, including adjudicated prescriptions that have not been filled;

 

(k)            Defaulted Accounts; Bankruptcy . Accounts where:

 

(i)             the Account Debtor obligated upon such Account suspends business, makes a general assignment for the benefit of creditors or fails to pay its debts generally as they come due; or

 

(ii)            a petition is filed by or against any Account Debtor obligated upon such Account under any bankruptcy law or any other federal, state or foreign (including any provincial) receivership, insolvency relief or other law or laws for the relief of debtors;

 

(l)             Employee Accounts .  Accounts that arise from a sale to any director, officer, other employee, or to any entity that has any common officer or director with any Credit Party.

 

(m)           Private Pay Accounts .  Accounts which are payable solely by an individual beneficiary, recipient or subscriber individually and not directly to a Credit Party by a Federal/State Healthcare Program Account Debtor or commercial medical insurance carrier acceptable to Agent in its good faith credit judgment;

 

(n)            Progress Billing . Accounts (i) as to which a Credit Party is not able to bring suit or otherwise enforce its remedies against the Account Debtor through judicial process, or (ii) if the Account represents a progress billing consisting of an invoice for goods sold or used or services rendered pursuant to a contract under which the Account Debtor’s obligation to pay that invoice is subject to a Credit Party’s completion of further performance under such contract or is subject to the equitable lien of a surety bond issuer;

 

(o)            Bill and Hold . Accounts that arise with respect to goods that are delivered on a bill-and-hold basis;

 

(p)            C.O.D. . Accounts that arise with respect to goods that are delivered on a cash-on-delivery basis;

 

(q)            Credit Limit . Accounts to the extent such Account exceeds any credit limit established by Agent, in its Permitted Discretion but only to the extent of any amounts greater than 60 days past invoice date, following prior notice of such limit by Agent to the Borrower;

 

(r)             Non-Acceptable Alternative Currency . Accounts that are payable in any currency other than United States Dollars;

 

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(s)             Other Liens Against Receivables . Accounts that (i) are not owned by a Credit Party or (ii) are subject to any right, claim, Lien or other interest of any other Person, other than Liens in favor of Agent securing the Obligations;

 

(t)             Conditional Sale . Accounts that arise with respect to goods that are placed on consignment, guarantied sale or other terms by reason of which the payment by the Account Debtor is conditional;

 

(u)            Judgments, Notes or Chattel Paper . Accounts that are evidenced by a judgment, Instrument or Chattel Paper;

 

(v)            Not Bona Fide . Accounts that are not true and correct statements of bona fide indebtedness incurred in the amount of such Account for merchandise sold to or services rendered as a pharmaceutical distributor and accepted by the applicable Account Debtor;

 

(w)           Ordinary Course; Sales of Equipment or Bulk Sales .  Accounts that do not arise from the sale of goods or the performance of services by a Credit Party in the Ordinary Course of Business, including, without limitation, sales of Equipment, bulk sales and Accounts that arise from personal injury claims or from services performed or undertaken in violation of any Requirement of Law; or

 

(x)            Not Perfected . Accounts as to which Agent’s Lien thereon, on behalf of itself and the other Secured Parties, is not a first priority perfected Lien.

 

1.14         Eligible Inventory .

 

All of the Inventory owned by each Credit Party and properly reflected as “Eligible Inventory” in the most recent Borrowing Base Certificate delivered by the Borrower to Agent shall be “ Eligible Inventory ” for purposes of this Agreement, except any Inventory to which any of the exclusionary criteria set forth below or in the component definitions herein applies.  Agent shall have the right, in determining the Borrowing Base, to establish, modify, or eliminate Reserves against Eligible Inventory from time to time in its Permitted Discretion.  In addition, Agent reserves the right, at any time and from time to time after the Closing Date, to adjust any of the applicable criteria, to establish new criteria and to adjust advance rates with respect to Eligible Inventory in its Permitted Discretion, subject to the approval of Required Lenders in the case of adjustments, new criteria or changes in advance rates which have the effect of making more credit available.  Eligible Inventory shall not include the following Inventory of a Credit Party:

 

(a)            Excess/Obsolete . Inventory that is excess, obsolete, unsaleable, shopworn, or seconds;

 

(b)            Damaged . Inventory that is damaged or unfit for sale or with an expiration date within six (6) months;

 

(c)            Locations < $100,000 . Inventory that is located at any site if the aggregate book value of Inventory at any such location is less than $100,000;

 

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(d)            Consignment . Inventory that is placed on consignment;

 

(e)            Off-Site . Inventory that (i) is not located on premises owned, leased or rented by a Credit Party and set forth in Schedule 3.21 or (ii) is stored at a leased location, unless Agent has given its prior consent thereto and unless (x) a reasonably satisfactory landlord waiver has been delivered to Agent, or (y) Reserves satisfactory to Agent have been established with respect thereto, (iii) is stored with a bailee or warehouseman unless (x) a reasonably satisfactory, acknowledged bailee letter has been received by Agent with respect thereto and (y) Reserves satisfactory to Agent have been established with respect thereto, or (iv) is located at an owned location subject to a mortgage in favor of a lender other than Agent, unless a reasonably satisfactory mortgagee waiver has been delivered to Agent;

 

(f)             In-Transit . Inventory that is in transit;

 

(g)            Customized . Inventory subject to any licensing, trademark, trade name or copyright agreements with any third parties which would require any consent of any third party for the sale or disposition of that Inventory (which consent has not been obtained) or the payment of any monies to any third party upon such sale or other disposition (to the extent of such monies);

 

(h)            Packing/Shipping Materials . Inventory that consists of packing or shipping materials, or manufacturing supplies;

 

(i)             Tooling . Inventory that consists of tooling or replacement parts;

 

(j)             Display . Inventory that consists of display items;

 

(k)            Returns . Inventory that consists of goods which have been returned by the buyer;

 

(l)             Freight . Inventory that consists of any costs associated with “freight in” charges;

 

(m)           Hazardous Materials . Inventory that consists of Hazardous Materials or goods that can be transported or sold only with licenses that are not readily available;

 

(n)            Un-insured . Inventory that is not covered by casualty insurance reasonably acceptable to Agent;

 

(o)            Not Owned/Other Liens . Inventory that is not owned by a Credit Party or is subject to Liens other than Permitted Liens described in Sections 5.1(b) , (c) , (d)  and (f)  or rights of any other Person (including the rights of a purchaser that has made progress payments and the rights of a surety that has issued a bond to assure a Credit Party’s performance with respect to that Inventory, and including any Inventory constituting AmerisourceBergen Inventory Collateral or and any other Inventory subject to vendor financing);

 

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(p)            Unperfected .  Inventory that is not subject to a first priority Lien in favor of Agent on behalf of itself and the Secured Parties, except for Liens described in Section 5.1(d)  (subject to Reserves);

 

(q)            Controlled Substances .  Inventory that constitutes a “controlled substance” under the Controlled Substances Act (21 U.S.C. 801 et seq.) or under any state controlled substances laws;

 

(r)             Negotiable Bill of Sale .  Inventory that is covered by a negotiable document of title, unless such document has been delivered to Agent with all necessary endorsements, free and clear of all Liens except Liens in favor of Agent, on behalf of itself and the Secured Parties; or

 

(s)             Not Ordinary Course . Inventory (other than raw materials) that is not of a type held for sale in the Ordinary Course of Business of a Credit Party.

 

1.15         Replacement of Commitments .  On the Closing Date, each Existing Lender’s Commitment under the Existing Credit Agreement shall automatically be replaced and superseded by the Commitments set forth on Schedule 1.1(b), and Agent shall cancel each Revolving Note issued to such Existing Lender with respect to such Existing Lender’s Revolving Credit Commitment (as defined in the Existing Credit Agreement), upon Agent’s receipt or delivery, as the case may be, of the applicable amount set forth in clauses (a) or (b) below in immediately available funds received no later than 1:00 p.m. (New York time) on the Closing Date:

 

(a)            the amount, if any, by which (i) such Lender’s Commitment Percentage of Advances to be made on the Closing Date, exceeds (ii) its actual outstanding Loans under the Existing Credit Agreement as of the Closing Date; or

 

(b)            the amount, if any, by which (i) such Lender’s actual outstanding Loans under the Existing Credit Agreement as of the Closing Date, exceeds (ii) such Lender’s Commitment Percentage of the Loans to be made on the Closing Date.

 

1.16         Restatement of Obligations .  The Borrower, each other Credit Party, Agent and each Lender hereby acknowledge and agree that upon satisfaction or waiver in writing of all conditions precedent set forth in Section 2.1:

 

(a)            this Agreement shall amend, restate and supersede in its entirety the Existing Credit Agreement;

 

(b)            those other Loan Documents that amend and restate any of the Existing Loan Documents shall amend, restate and supersede such other Existing Loan Documents;

 

(c)            the Loan Documents (and the obligations and commitments thereunder) do not constitute an accord and satisfaction or a novation of the obligations and commitments of Credit Parties under the Existing Loan Agreement and the other Existing Loan Documents;

 

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(d)            all obligations and commitments outstanding under the Existing Loan Documents are amended, restated and superseded by the Loan Documents and will be governed by the terms of this Agreement and the other Loan Documents;

 

(e)            the Collateral will secure the Obligations under this Agreement and the other Loan Documents; and

 

(f)             amounts in respect of interest, fees, and other amounts payable to or for the account of Agent or any Lender shall be calculated in accordance with the provisions of (i) the Existing Credit Agreement with respect to any period (or portion thereof) ending prior to the Closing Date, and (ii) this Agreement with respect to any period (or portion thereof) commencing on or after the Closing Date.

 

Notwithstanding the foregoing or anything to the contrary herein, nothing herein shall be deemed to limit or terminate any of Agent’s or Lenders’ rights under the Existing Credit Agreement that expressly survive the termination of the Commitments and the payment in full of the Obligations.

 

ARTICLE II.
CONDITIONS PRECEDENT

 

2.1           Conditions of Initial Loans .

 

The obligation of each Lender to make its initial Loans and of each L/C Issuer to Issue, or cause to be Issued, the initial Letters of Credit hereunder is subject to satisfaction of the following conditions in a manner satisfactory to Agent:

 

(a)            Loan Documents .  Agent shall have received on or before the Closing Date all of the agreements, documents, instruments and other items set forth on the closing checklist attached hereto as Exhibit 2.1 (except those items that are expressly permitted to be delivered after the Closing Date pursuant to Section 4.15 ), each in form and substance reasonably satisfactory to Agent;

 

(b)            Availability .  After giving effect to the Revolving Loan Commitment as provided herein, Availability is not less than $60,000,000 on the Closing Date;

 

(c)            Projections .  Agent shall have received (a) projections of the Credit Parties (and their Subsidiaries’) consolidated and consolidating financial performance for the current Fiscal Year and the next succeeding two (2) Fiscal Years on a year by year basis, and for the current Fiscal Year on a month by month basis (without regard to MedPro) and (b) projections of MedPro’s financial performance for the current Fiscal Year and the next Fiscal Year in form and substance satisfactory to the Agent;

 

(d)            MedPro Acquisition Documents .  The terms of the MedPro Acquisition Agreement, including all schedules and exhibits thereto, and all other MedPro Acquisition Documents, shall be reasonably satisfactory to the Agent and Lenders;

 

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(e)            Approvals .  Agent shall have received (i) satisfactory evidence that the Credit Parties have obtained all required consents and approvals of all Persons including all requisite Governmental Authorities, to the execution, delivery and performance of this Agreement and the other Loan Documents and the consummation of the Related Transactions or (ii) an officer’s certificate in form and substance reasonably satisfactory to Agent affirming that no such consents or approvals are required; and

 

(f)             Payment of Fees .  The Borrower shall have paid the fees required to be paid on the Closing Date in the respective amounts specified in Section 1.9 (including the fees specified in the Fee Letter), and shall have reimbursed Agent for all fees, costs and expenses of closing presented as of the Closing Date.

 

2.2           Conditions to All Borrowings .

 

Except as otherwise expressly provided herein, no Lender or L/C Issuer shall be obligated to fund any Loan or incur any Letter of Credit Obligation, if, as of the date thereof:

 

(a)            any representation or warranty by any Credit Party contained herein or in any other Loan Document is untrue or incorrect in any material respect (without duplication of any materiality qualifier contained therein) as of such date, except to the extent that such representation or warranty expressly relates to an earlier date (in which event such representations and warranties were untrue or incorrect in any material respect (without duplication of any materiality qualifier contained therein) as of such earlier date), and Agent or Required Lenders have determined not to make such Loan or incur such Letter of Credit Obligation as a result of the fact that such warranty or representation is untrue or incorrect;

 

(b)            (i)  any Default or Event of Default has occurred and is continuing or would reasonably be expected to result after giving effect to any Loan (or the incurrence of any Letter of Credit Obligation), and Agent or Required Lenders shall have determined not to make any Loan or incur any Letter of Credit Obligation as a result of that Default or Event of Default or (ii) any Event of Default has occurred and is continuing under Section 7.1(a)  or under Section 7.1(c)  as a result of a failure to comply with the covenant in Section 6.1 ; or

 

(c)            after giving effect to any Loan (or the incurrence of any Letter of Credit Obligations), the aggregate outstanding amount of the Revolving Loans would exceed the Maximum Revolving Loan Balance.

 

The request by the Borrower and acceptance by the Borrower of the proceeds of any Loan or the incurrence of any Letter of Credit Obligations shall be deemed to constitute, as of the date thereof, (i) a representation and warranty by the Borrower that the conditions in this Section 2.2 have been satisfied and (ii) a reaffirmation by each Credit Party of the granting and continuance of Agent’s Liens, on behalf of itself and the Secured Parties, pursuant to the Collateral Documents.

 

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ARTICLE III.
REPRESENTATIONS AND WARRANTIES

 

The Credit Parties, jointly and severally, represent and warrant to Agent and each Lender that the following are, and after giving effect to the Related Transactions will be, true, correct and complete (it being understood that in the case of MedPro, references to the Closing Date shall be deemed to be references to the MedPro Acquisition Closing Date after giving effect to the MedPro Acquisition):

 

3.1           Corporate Existence and Power .

 

Each Credit Party and each of their respective Subsidiaries:

 

(a)            is a corporation, limited liability company or limited partnership, as applicable, duly organized, validly existing and in good standing under the laws of the jurisdiction of its incorporation, organization or formation, as applicable;

 

(b)            has the power and authority and all governmental licenses, authorizations, Permits, consents and approvals to own its assets, carry on its business and execute, deliver, and perform its obligations under, the Loan Documents and the Related Agreements to which it is a party;

 

(c)            is duly qualified as a foreign corporation, limited liability company or limited partnership, as applicable, and licensed and in good standing, under the laws of each jurisdiction where its ownership, lease or operation of Property or the conduct of its business requires such qualification or license; and

 

(d)            is in compliance with all Requirements of Law;

 

except, in each case referred to in clause (c)  or clause (d) , to the extent that the failure to do so would not reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect.

 

3.2           Corporate Authorization; No Contravention .

 

The execution, delivery and performance by each of the Credit Parties of this Agreement, and by each Credit Party and each of their respective Subsidiaries of any other Loan Document and Related Agreement to which such Person is party, have been duly authorized by all necessary action, and do not and will not:

 

(i)             contravene the terms of any of that Person’s Organization Documents;

 

(ii)            conflict with or result in any material breach or contravention of, or result in the creation of any Lien under, any document evidencing any material Contractual Obligation to which such Person is a party or any order, injunction, writ or decree of any Governmental Authority to which such Person or its Property is subject;

 

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(iii)           violate any Requirement of Law in any material respect; or

 

(iv)           affect any Credit Party’s or any Subsidiary of a Credit Party’s right to receive, or reduce the amount of, payments and reimbursements from Third Party Payors, or materially adversely affect any Health Care Permit.

 

3.3           Governmental Authorization .

 

No approval, consent, exemption, authorization, or other action by, or notice to, or filing with, any Governmental Authority is necessary or required in connection with the execution, delivery or performance by, or enforcement against, any Credit Party or any Subsidiary of any Credit Party of this Agreement, any other Loan Document or Related Agreement except (a) for recordings and filings in connection with the Liens granted to Agent under the Collateral Documents, (b) those obtained or made on or prior to the Closing Date and (c) in the case of any Related Agreement, those which, if not obtained or made, would not reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect.

 

3.4           Binding Effect .

 

This Agreement and each other Loan Document and Related Agreement to which any Credit Party or any Subsidiary of any Credit Party is a party constitute the legal, valid and binding obligations of each such Person which is a party thereto, enforceable against such Person in accordance with their respective terms, except as enforceability may be limited by applicable bankruptcy, insolvency, or similar laws affecting the enforcement of creditors’ rights generally or by equitable principles relating to enforceability.

 

3.5           Litigation .

 

Except as specifically disclosed in Schedule 3.5 , there are no actions, suits, proceedings, claims or disputes pending, or to the best knowledge of each Credit Party, threatened or contemplated, at law, in equity, in arbitration or before any Governmental Authority, against any Credit Party, any Subsidiary of any Credit Party or any of their respective Properties which:

 

(a)            purport to affect or pertain to this Agreement, any other Loan Document or Related Agreement, or any of the transactions contemplated hereby or thereby; or

 

(b)            would reasonably be expected to result in equitable relief or monetary judgment(s), individually or in the aggregate, in excess of $500,000; or

 

(c)            seek an injunction or other equitable relief which would reasonably be expected to have a Material Adverse Effect.

 

No injunction, writ, temporary restraining order or any order of any nature has been issued by any court or other Governmental Authority purporting to enjoin or restrain the execution, delivery or performance of this Agreement, any other Loan Document or any Related Agreement, or directing that the transactions provided for herein or therein not be consummated as herein or therein provided.  As of the Closing Date, no Credit Party or any Subsidiary of any Credit Party is the subject of an audit or, to each Credit Party’s knowledge, any review or

 

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investigation by any Governmental Authority (excluding the IRS and other taxing authorities) concerning the violation or possible violation of any Requirement of Law.

 

3.6           No Default .

 

No Default or Event of Default exists or would result from the incurring of any Obligations by any Credit Party or the grant or perfection of Agent’s Liens on the Collateral or the consummation of the Related Transactions.  No Credit Party and no Subsidiary of any Credit Party is in default under or with respect to any Contractual Obligation in any respect which, individually or together with all such defaults, would reasonably be expected to have a Material Adverse Effect.

 

3.7           ERISA Compliance .

 

Schedule 3.7 sets forth, as of the Closing Date, a complete and correct list of, and that separately identifies, (a) all Title IV Plans, (b) all Multiemployer Plans and (c) all material Benefit Plans.  Each Benefit Plan, and each trust thereunder, intended to qualify for tax exempt status under Section 401 or 501 of the Code or other Requirements of Law so qualifies.  Except for those that would not reasonably be expected to result in Liabilities in excess of $500,000 in the aggregate, (x) each Benefit Plan is in compliance with applicable provisions of ERISA, the Code and other Requirements of Law, (y) there are no existing or pending (or to the knowledge of any Credit Party, threatened) claims (other than routine claims for benefits in the normal course), sanctions, actions, lawsuits or other proceedings or investigation involving any Benefit Plan to which any Credit Party incurs or otherwise has or could have an obligation or any Liability and (z) no ERISA Event is reasonably expected to occur.  On the Closing Date, no ERISA Event has occurred in connection with which obligations and liabilities (contingent or otherwise) remain outstanding.

 

3.8           Use of Proceeds; Margin Regulations .

 

No Credit Party and no Subsidiary of any Credit Party is engaged in the business of purchasing or selling Margin Stock or extending credit for the purpose of purchasing or carrying Margin Stock.

 

3.9           Ownership of Property; Liens .

 

As of the Closing Date, the Real Estate listed in Schedule 3.9 constitutes all of the Real Estate of each Credit Party and each of their respective Subsidiaries.  Each of the Credit Parties and each of their respective Subsidiaries has good record and marketable title in fee simple to, or valid leasehold interests in, all Real Estate, and good and valid title to all owned personal property and valid leasehold interests in all leased personal property, in each instance, necessary or used in the ordinary conduct of their respective businesses.  As of the Closing Date, none of the Real Estate of any Credit Party or any Subsidiary of any Credit Party is subject to any Liens other than Permitted Liens.  As of the Closing Date, Schedule 3.9 also describes any purchase options, rights of first refusal or other similar contractual rights pertaining to any Real Estate.  As of the Closing Date, all material permits required to have been issued or appropriate to enable the Real Estate to be lawfully occupied and used for all of the purposes for which it is currently occupied and used have been lawfully issued and are in full force and effect.

 

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3.10         Taxes .

 

All federal, state, local and foreign income and franchise and other material tax returns, reports and statements (collectively, the “ Tax Returns ”) required to be filed by any Tax Affiliate have been filed with the appropriate Governmental Authorities, all such Tax Returns are true and correct in all material respects, and all taxes, assessments and other governmental charges and impositions reflected therein or otherwise due and payable have been paid prior to the date on which any Liability may be added thereto for non-payment thereof except for those contested in good faith by appropriate proceedings diligently conducted and for which adequate reserves are maintained on the books of the appropriate Tax Affiliate in accordance with GAAP.  As of the Closing Date, no Tax Return is under audit or examination by any Governmental Authority, and no notice of any audit or examination or any assertion of any claim for Taxes has been given or made by any Governmental Authority.  Proper and accurate amounts have been withheld by each Tax Affiliate from their respective employees for all periods in full and complete compliance with the tax, social security and unemployment withholding provisions of applicable Requirements of Law and such withholdings have been timely paid to the respective Governmental Authorities.  No Tax Affiliate has participated in a “reportable transaction” within the meaning of Treasury Regulation Section 1.6011-4(b) or has been a member of an affiliated, combined or unitary group other than the group of which a Tax Affiliate is the common parent.

 

3.11         Financial Condition .

 

(a)            Each of (i) the audited consolidated balance sheet of the Borrower and its Subsidiaries dated December 31, 2013, and the related audited consolidated statements of income or operations, shareholders’ equity and cash flows for the Fiscal Year ended on that date and (ii) the unaudited interim consolidated balance sheet of the Borrower and its Subsidiaries dated March 31, 2014 and the related unaudited consolidated statements of income, shareholders’ equity and cash flows for the three (3) fiscal months then ended:

 

(x)            were prepared in accordance with GAAP consistently applied throughout the respective periods covered thereby, except as otherwise expressly noted therein, subject to, in the case of the unaudited interim financial statements, normal year-end adjustments and the lack of footnote disclosures; and

 

(y)            present fairly in all material respects the consolidated financial condition of the Borrower and its Subsidiaries as of the dates thereof and results of operations for the periods covered thereby.

 

(b)            [Reserved]

 

(c)            Since December 31, 2013, there has been no Material Adverse Effect.

 

(d)            The Credit Parties and their Subsidiaries have no Indebtedness other than Indebtedness permitted pursuant to Section 5.5 and have no Contingent Obligations other than Contingent Obligations permitted pursuant to Section 5.9 .

 

(e)            All financial performance projections delivered to Agent, including the financial performance projections delivered on or prior to the Closing Date represent the

 

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Borrower’s best good faith estimate of future financial performance and are based on assumptions believed by the Borrower to be fair and reasonable in light of current market conditions, it being acknowledged and agreed by Agent and Lenders that projections as to future events are not to be viewed as facts and that the actual results during the period or periods covered by such projections may differ from the projected results.

 

3.12         Environmental Matters .

 

(a)            Except as set forth in Schedule 3.12(a) , and except where any failures to comply would not reasonably be expected to result in, either individually or in the aggregate, Material Environmental Liabilities to the Credit Parties and their Subsidiaries, (i) the operations of each Credit Party and each Subsidiary of each Credit Party are and have been in compliance with all applicable Environmental Laws, including obtaining, maintaining and complying with all Permits required by any applicable Environmental Law, (ii) no Credit Party and no Subsidiary of any Credit Party is party to, and no Credit Party and no Subsidiary of any Credit Party and no Real Estate currently (or to the knowledge of any Credit Party previously) owned, leased, subleased, operated or otherwise occupied by or for any such Person is subject to or the subject of, any Contractual Obligation or any pending (or, to the knowledge of any Credit Party, threatened) order, action, investigation, suit, proceeding, audit, claim, demand, dispute or notice of violation or of potential liability or similar notice relating in any manner to any Environmental Laws, (iii) no Lien in favor of any Governmental Authority securing, in whole or in part, Environmental Liabilities has attached to any Property of any Credit Party or any Subsidiary of any Credit Party and, to the knowledge of any Credit Party, no facts, circumstances or conditions exist that could reasonably be expected to result in any such Lien attaching to any such Property, (iv) no Credit Party and no Subsidiary of any Credit Party has caused or suffered to occur a Release of Hazardous Materials at, to or from any Real Estate, (v) all Real Estate currently (or to the knowledge of any Credit Party previously) owned, leased, subleased, operated or otherwise occupied by or for any such Credit Party and each Subsidiary of each Credit Party is free of contamination by any Hazardous Materials, and (vi) no Credit Party and no Subsidiary of any Credit Party (x) is or has been engaged in, or has permitted any current or former tenant to engage in, operations in violation of any Environmental Law or (y) knows of any facts, circumstances or conditions reasonably constituting notice of a violation of any Environmental Law, including receipt of any information request or notice of potential responsibility under the Comprehensive Environmental Response, Compensation and Liability Act (42 U.S.C. §§ 9601 et. seq.) or similar Environmental Laws.  Each Credit Party has made available to Agent copies of all existing environmental reports, reviews and audits and all documents pertaining to actual or potential Environmental Liabilities, in each case to the extent such reports, reviews, audits and documents are in their possession, custody, control or otherwise available to the Credit Parties.

 

(b)            (i) Borrower and each applicable Credit Party is and has been in compliance in all material respects with the Headquarters Due Care Plan and Section 20107a of Part 201, Environmental Remediation, of the Natural Resources and Environmental Protection Act, 1994 PA 451, as amended, and any associated regulations and guidance, and (ii) Borrower and each applicable Credit Party has taken all steps and actions reasonably necessary to obtain and maintain the liability protection afforded or provided to prospective and new operators of contaminated property under Part 201 of the Natural Resources and Environmental Protection Act, 1994 PA 451, as amended, and any associated regulations and guidance.

 

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3.13         Regulated Entities .

 

None of any Credit Party, any Person controlling any Credit Party, or any Subsidiary of any Credit Party, is (a) an “investment company” within the meaning of the Investment Company Act of 1940 or (b) subject to regulation under the Federal Power Act, the Interstate Commerce Act, any state public utilities code, or any other federal or state statute, rule or regulation limiting its ability to incur Indebtedness, pledge its assets or perform its Obligations under the Loan Documents.

 

3.14         Solvency .

 

Both before and after giving effect to (a) the Loans made and Letters of Credit Issued on or prior to the date this representation and warranty is made or remade, (b) the disbursement of the proceeds of such Loans to or as directed by the Borrower, (c) the consummation of the Related Transactions and (d) the payment and accrual of all transaction costs in connection with the foregoing, both the Credit Parties taken as a whole and the Borrower individually are Solvent.

 

3.15         Labor Relations .

 

There are no strikes, work stoppages, slowdowns or lockouts existing, pending (or, to the knowledge of any Credit Party, threatened) against or involving any Credit Party or any Subsidiary of any Credit Party, except for those that would not, in the aggregate, reasonably be expected to have a Material Adverse Effect.  Except as set forth in Schedule 3.15 , as of the Closing Date, (a) there is no collective bargaining or similar agreement with any union, labor organization, works council or similar representative covering any employee of any Credit Party or any Subsidiary of any Credit Party, (b) no petition for certification or election of any such representative is existing or pending with respect to any employee of any Credit Party or any Subsidiary of any Credit Party and (c) no such representative has sought certification or recognition with respect to any employee of any Credit Party or any Subsidiary of any Credit Party.

 

3.16         Intellectual Property .

 

Schedule 3.16 sets forth a true and complete list of the following Intellectual Property each Credit Party owns, licenses or otherwise has the right to use:  (i) Intellectual Property that is registered or subject to applications for registration, (ii) Internet Domain Names and (iii) material Intellectual Property and material Software, separately identifying that owned and licensed to such Credit Party and including for each of the foregoing items (1) the owner, (2) the title, (3) the jurisdiction in which such item has been registered or otherwise arises or in which an application for registration has been filed, (4) as applicable, the registration or application number and registration or application date and (5) any IP Licenses or other rights (including franchises) granted by such Credit Party with respect thereto.  Each Credit Party and each Subsidiary of each Credit Party owns, or is licensed to use, all Intellectual Property necessary to conduct its business as currently conducted except for such Intellectual Property the failure of which to own or license would not reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect.  To the knowledge of each Credit Party, (a) the conduct and operations

 

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of the businesses of each Credit Party and each Subsidiary of each Credit Party does not infringe, misappropriate, dilute, violate or otherwise impair any Intellectual Property owned by any other Person and (b) no other Person has contested any right, title or interest of any Credit Party or any Subsidiary of any Credit Party in, or relating to, any Intellectual Property, other than, in each case, as cannot reasonably be expected to affect the Loan Documents and the transactions contemplated therein and would not, in the aggregate, reasonably be expected to have a Material Adverse Effect.

 

3.17         Brokers’ Fees; Transaction Fees .

 

Except for fees payable to Agent and Lenders, none of the Credit Parties or any of their respective Subsidiaries has any obligation to any Person in respect of any finder’s, broker’s or investment banker’s fee in connection with the transactions contemplated hereby.

 

3.18         Insurance .

 

Schedule 3.18 lists all insurance policies of any nature maintained, as of the Closing Date, for current occurrences by each Credit Party, including issuers, coverages and deductibles.  Each of the Credit Parties and each of their respective Subsidiaries and their respective Properties are insured with financially sound and reputable insurance companies which are not Affiliates of the Borrower, in such amounts, with such deductibles and covering such risks as are customarily carried by companies engaged in similar businesses of the same size and character as the business of the Credit Parties and, to the extent relevant, owning similar Properties in localities where such Person operates.

 

3.19         Ventures, Subsidiaries and Affiliates; Outstanding Stock .

 

Except as set forth in Schedule 3.19 , as of the Closing Date, no Credit Party and no Subsidiary of any Credit Party (a) has any Subsidiaries, or (b) is engaged in any joint venture or partnership with any other Person, or is an Affiliate of any other Person.  All issued and outstanding Stock and Stock Equivalents of each of the Credit Parties and each of their respective Subsidiaries are duly authorized and validly issued, fully paid, non-assessable, and free and clear of all Liens other than, with respect to the Stock and Stock Equivalents of the Borrower and Subsidiaries of the Borrower, those in favor of Agent, for the benefit of the Secured Parties.  All such securities were issued in compliance with all applicable state and federal laws concerning the issuance of securities.  All of the issued and outstanding Stock of each Credit Party and each Subsidiary of each Credit Party is owned by each of the Persons and in the amounts set forth in Schedule 3.19 , which the Credit Parties shall update upon notice to Agent promptly following the incorporation, organization or formation of any Subsidiary, promptly following the completion of any Permitted Acquisition and promptly following any Janus Series A Preferred Proceeds Distribution.  Except as set forth in Schedule 3.19 , there are no pre-emptive or other outstanding rights to purchase, options, warrants or similar rights or agreements pursuant to which any Credit Party may be required to issue, sell, repurchase or redeem any of its Stock or Stock Equivalents or any Stock or Stock Equivalents of its Subsidiaries.  Set forth in Schedule 3.19 is a true and complete organizational chart of the Borrower and all of its Subsidiaries, which the Credit Parties shall update upon notice to Agent

 

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promptly following the incorporation, organization or formation of any Subsidiary and promptly following the completion of any Permitted Acquisition.

 

3.20         Jurisdiction of Organization; Chief Executive Office .

 

Schedule 3.20 lists each Credit Party’s jurisdiction of organization, legal name and organizational identification number, if any, and the location of such Credit Party’s chief executive office or sole place of business, in each case as of the date hereof, and such Schedule 3.20 also lists all jurisdictions of organization and legal names of such Credit Party for the five years preceding the Closing Date.

 

3.21         Locations of Inventory, Equipment and Books and Records .

 

Each Credit Party’s inventory and equipment (other than inventory or equipment in transit) and books and records concerning the Collateral are kept at the locations listed in Schedule 3.21 (which Schedule 3.21 shall be promptly updated by the Credit Parties upon notice to Agent as permanent Collateral locations change).

 

3.22         Deposit Accounts and Other Accounts .

 

Schedule 3.22 lists all banks and other financial institutions at which any Credit Party maintains deposit or other accounts as of the Closing Date, and such Schedule correctly identifies the name, address and any other relevant contact information reasonably requested by Agent with respect to each depository, the name in which the account is held, a description of the purpose of the account, and the complete account number therefor.

 

3.23         Government Contracts .

 

Except as set forth in Schedule 3.23 , as of the Closing Date, no Credit Party is a party to any material contract or agreement with any Governmental Authority and no Credit Party’s Accounts are subject to the Federal Assignment of Claims Act (31 U.S.C. Section 3727) or any similar state or local law.

 

3.24         Customer and Trade Relations .

 

As of the Closing Date, there exists no actual or, to the knowledge of any Credit Party, threatened termination or cancellation of, or any material adverse modification or change in (a) the business relationship of any Credit Party with any customer or group of customers whose purchases during the preceding 12 calendar months caused them to be ranked among the ten largest customers of such Credit Party or (b) the business relationship of any Credit Party with any supplier essential to its operations.

 

3.25         Bonding .

 

Except as set forth in Schedule 3.25 , as of the Closing Date, no Credit Party is a party to or bound by any surety bond agreement, indemnification agreement therefor or bonding requirement with respect to products or services sold by it.

 

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3.26         Subordinated Indebtedness .

 

As of the Closing Date, the Borrower has delivered to Agent a complete and correct copy of the Subordinated Indebtedness Documents (including all schedules, exhibits, amendments, supplements, modifications, assignments and all other documents delivered pursuant thereto or in connection therewith). All Obligations, including the L/C Reimbursement Obligations, constitute Indebtedness entitled to the benefits of the subordination provisions contained in the Subordination Agreements.

 

3.27         Full Disclosure .

 

None of the representations or warranties made by any Credit Party or any of their Subsidiaries in the Loan Documents as of the date such representations and warranties are made or deemed made, and none of the statements contained in each exhibit, report, statement or certificate furnished by or on behalf of any Credit Party or any of their Subsidiaries in connection with the Loan Documents (including the offering and disclosure materials, if any, delivered by or on behalf of any Credit Party to Agent or the Lenders prior to the Closing Date), contains any untrue statement of a material fact or omits any material fact required to be stated therein or necessary to make the statements made therein, in light of the circumstances under which they are made, not misleading as of the time when made or delivered.

 

3.28         Foreign Assets Control Regulations and Anti-Money Laundering .

 

Each Credit Party and each Subsidiary of each Credit Party is and will remain in compliance in all material respects with all U.S. economic sanctions laws, Executive Orders and implementing regulations as promulgated by the U.S. Treasury Department’s Office of Foreign Assets Control (“ OFAC ”), and all applicable anti-money laundering and counter-terrorism financing provisions of the Bank Secrecy Act and all regulations issued pursuant to it.  No Credit Party and no Subsidiary or Affiliate of a Credit Party (i) is a Person designated by the U.S. government on the list of the Specially Designated Nationals and Blocked Persons (the “ SDN List ”) with which a U.S. Person cannot deal with or otherwise engage in business transactions, (ii) is a Person who is otherwise the target of U.S. economic sanctions laws such that a U.S. Person cannot deal or otherwise engage in business transactions with such Person or (iii) is controlled by (including without limitation by virtue of such person being a director or owning voting shares or interests), or acts, directly or indirectly, for or on behalf of, any person or entity on the SDN List or a foreign government that is the target of U.S. economic sanctions prohibitions such that the entry into, or performance under, this Agreement or any other Loan Document would be prohibited under U.S. law.

 

3.29         Patriot Act .

 

The Credit Parties, each of their Subsidiaries and each of their Affiliates are in compliance with (a) the Trading with the Enemy Act, and each of the foreign assets control regulations of the United States Treasury Department and any other enabling legislation or executive order relating thereto, (b) the Patriot Act and (c) other federal or state laws relating to “ know your customer ” and anti-money laundering rules and regulations.  No part of the proceeds of any Loan will be used directly or indirectly for any payments to any government official or

 

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employee, political party, official of a political party, candidate for political office, or anyone else acting in an official capacity, in order to obtain, retain or direct business or obtain any improper advantage, in violation of the United States Foreign Corrupt Practices Act of 1977.

 

3.30         Certain Other Representations and Warranties .

 

As of the Closing Date and any other date on which representations and warranties are otherwise remade or deemed remade thereunder, each of the representations and warranties contained in the Subordinated Indebtedness Documents made by each Credit Party is true and correct. Each of the Credit Parties agrees that, by this reference, such representations and warranties contained in the Subordinated Indebtedness Documents by a Credit Party, without limiting any of the representations and warranties otherwise contained herein or in any other Loan Document, hereby are incorporated herein, mutatis mutandis, for the benefit of the Secured Parties.

 

3.31         Regulatory Matters .

 

(a)            Schedule 3.31 sets forth, as of the Closing Date, a complete and correct list of all Registrations held by each Credit Party and its Subsidiaries.  Such listed Registrations are the only Registrations that are required for the Credit Parties and their Subsidiaries to conduct their respective businesses as presently conducted or as proposed to be conducted.  Each Credit Party and its Subsidiaries has, and it and its Products are in conformance with, all Registrations required to conduct its respective businesses as now or currently proposed to be conducted except where the failure to have such Registrations would not reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect.  To the knowledge of each Credit Party and its Subsidiaries, neither the FDA nor other Governmental Authority is considering limiting, suspending, or revoking such Registrations or changing the marketing classification or labeling or other significant parameter affecting the Products of the Credit Parties or any of their respective Subsidiaries.  To the knowledge of each Credit Party and its Subsidiaries, there is no false or misleading information or significant omission in any product application or other submission to the FDA or other Governmental Authority administering Public Health Laws.  The Credit Parties and their respective Subsidiaries have fulfilled and performed their obligations under each Registration, and, to the knowledge of each Credit Party and its Subsidiaries, no event has occurred or condition or state of facts exists which would constitute a breach or default, or would cause revocation or termination of any such Registration.  To the knowledge of each Credit Party and its Subsidiaries, no event has occurred or condition or state of facts exists which would present potential product liability related, in whole or in part, to Regulatory Matters.  To the knowledge of each Credit Party and its Subsidiaries, any third party that is a manufacturer or contractor for the Credit Parties or any of their respective Subsidiaries is in compliance with all Registrations required by the FDA or comparable Governmental Authority and all Public Health Laws insofar as they reasonably pertain to the Products of the Credit Parties and their respective Subsidiaries.

 

(b)            All Products designed, developed, investigated, manufactured, prepared, assembled, packaged, tested, labeled, distributed, sold or marketed by or on behalf of the Credit Parties or their respective Subsidiaries that are subject to Public Health Laws have been and are being designed, developed, investigated, manufactured, prepared, assembled, packaged, tested,

 

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labeled, distributed, sold and marketed in compliance with the Public Health Laws or any other applicable Requirement of Law, including, without limitation, clinical and non-clinical evaluation, product approval or clearance, premarketing notification, good manufacturing practices, labeling, advertising and promotion, record-keeping, establishment registration and device listing, reporting of recalls and adverse event reporting; provided , however, as to Products manufactured, packaged, labeled and tested by third parties as to which a Credit Party is solely dispensing, the above representations as to good manufacturing practices and reporting of recalls and adverse events are to the knowledge of each Credit Party and its Subsidiaries.

 

(c)            No Credit Party nor its Subsidiaries is subject to any obligation arising under an administrative or regulatory action, proceeding, investigation or inspection by or on behalf of a Governmental Authority, warning letter, notice of violation letter, consent decree, request for information or other notice, response or commitment made to or with a Governmental Authority with respect to Regulatory Matters, and, to the knowledge of each Credit Party and its Subsidiaries, no such obligation has been threatened.  There is no, and there is no act, omission, event, or circumstance of which any Credit Party or any of its Subsidiaries has knowledge that would reasonably be expected to give rise to or lead to, any civil, criminal or administrative action, suit, demand, claim, complaint, hearing, investigation, demand letter, warning letter, proceeding or request for information pending against any Credit Party or its Subsidiaries, and, to each Credit Party’s and its Subsidiary’s knowledge, no Credit Party nor its Subsidiaries has any liability (whether actual or contingent) for failure to comply with any Public Health Laws.  There has not been any violation of any Public Health Laws by any Credit Party or its Subsidiaries in its product development efforts, submissions, record keeping and reports to the FDA or any other Governmental Authority that could reasonably be expected to require or lead to investigation, corrective action or enforcement, regulatory or administrative action that would reasonably be expected, in the aggregate, have a Material Adverse Effect.  To the knowledge of each Credit Party and each of their respective Subsidiaries, there are no civil or criminal proceedings relating to any Credit Party or any of its Subsidiaries or any officer, director or employee of any Credit Party or Subsidiary of any Credit Party that involve a matter within or related to the FDA’s or any other Governmental Authority’s jurisdiction.

 

(d)            As of the Closing Date, no Credit Party nor its Subsidiaries is undergoing any inspection related to Regulatory Matters, or any other Governmental Authority investigation.

 

(e)            During the period of three calendar years immediately preceding the Closing Date, no Credit Party nor any Subsidiary of any Credit Party has knowledge that it has, nor has it received notice that it has, introduced into commercial distribution any Products manufactured by or on behalf of any Credit Party or any Subsidiary of a Credit Party or distributed any products on behalf of another manufacturer that were upon their shipment by any Credit Party or any of its Subsidiaries adulterated or misbranded in violation of 21 U.S.C. § 331.  No Credit Party nor any Subsidiary of any Credit Party has received any notice of communication from any Governmental Authority alleging material noncompliance with any Requirement of Law.  No Product has been seized, withdrawn, recalled, detained, or subject to a suspension (other than in the ordinary course of business) of research, manufacturing, distribution, or commercialization activity, and there are no facts or circumstances reasonably likely to cause (i) the seizure, denial, withdrawal, recall, detention, public health notification, safety alert or suspension of manufacturing or other activity relating to any Product; (ii) a change

 

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in the labeling of any Product suggesting a compliance issue or risk; or (iii) a termination, seizure or suspension of manufacturing, researching, distributing or marketing of any Product.  No proceedings in the United States or any other jurisdiction seeking the withdrawal, recall, revocation, suspension, import detention, or seizure of any Product are pending or threatened against any Credit Party or any of its Subsidiaries.

 

(f)             No Credit Party nor any Subsidiary of any Credit Party nor any of their respective officers, directors, employees, agents, or contractors (i) have been excluded or debarred from any federal healthcare program (including without limitation Medicare or Medicaid) or any other federal program or (ii) have received notice from the FDA or any other Governmental Authority with respect to debarment or disqualification of any Person that would reasonably be expected to have, in the aggregate, a Material Adverse Effect.   No Credit Party nor any Subsidiary of any Credit Party nor any of their respective officers, directors, employees, agents or contractors have been convicted of any crime or engaged in any conduct for which (x) debarment is mandated or permitted by 21 U.S.C. § 335a or (y) such Person could be excluded from participating in the federal health care programs under Section 1128 of the Social Security Act or any similar law.  No officer and to the knowledge of each Credit Party and its Subsidiaries, no employee or agent of any Credit Party or its Subsidiaries, has (A) made any untrue statement of material fact or fraudulent statement to the FDA or any other Governmental Authority; (B) failed to disclose a material fact required to be disclosed to the FDA or any other Governmental Authority; or (C) committed an act, made a statement, or failed to make a statement that would reasonably be expected to provide the basis for the FDA or any other Governmental Authority to invoke its policy respecting “Fraud, Untrue Statements of Material Facts, Bribery, and Illegal Gratuities,” as set forth in 56 Fed. Reg. 46191 (September 10, 1991).

 

(g)            No Credit Party nor any Subsidiary of any Credit Party has granted rights to design, develop, manufacture, produce, assemble, distribute, license, prepare, package, label, market or sell its Products to any other Person nor is any Credit Party or any of its Subsidiaries bound by any agreement that affects any Credit Party’s exclusive right to design, develop, manufacture, produce, assemble, distribute, license, prepare, package, label, market or sell its Products.

 

(h)            Except as set forth on Schedule 3.31 : (i) each Credit Party and its Subsidiaries and, to their knowledge, their respective contract manufacturers are, and have been for the past three calendar years, in compliance with, and each Product in current commercial distribution is designed, manufactured, processed, prepared, assembled, packaged, labeled, stored, installed, serviced and held in compliance with, the current Good Manufacturing Practice regulations set forth in 21 C.F.R. Parts 210 and 211, as applicable, (ii) each Credit Party and its Subsidiaries is in compliance with the written procedures, record-keeping and reporting requirements required by the FDA or any comparable Governmental Authority pertaining to the reporting of adverse events and recalls involving the Products, (iii) all Products are and have been labeled, promoted, and advertised in accordance with their Registration and approved labeling or within the scope of an exemption from obtaining such Registration, and (iv) each Credit Party and its Subsidiaries’ establishments are registered with the FDA, as applicable, and each Product is listed with the FDA under the applicable FDA registration and adverse event reporting regulations for pharmaceuticals.

 

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3.32         Healthcare Matters .

 

(a)            Compliance with Health Care Laws .  Each Credit Party and each of their respective Subsidiaries is, and at all times during the three calendar years immediately preceding the Closing Date has been, in material compliance with all Health Care Laws and requirements of Third Party Payor Programs applicable to it, its assets, business or operations.  No circumstance exists or event has occurred which could reasonably be expected to result in a material violation of any Health Care Law or any requirement of any Third Party Payor Program.

 

(b)            Health Care Permits .  Each Credit Party and each of their respective Subsidiaries holds, and at all times during the three calendar years immediately preceding the Closing Date has held, all Health Care Permits necessary for it to own, lease, sublease or operate its assets or to conduct its business or operations as presently conducted (including without limitation, to provide specialized pharmaceutical medication management programs and to participate in and obtain reimbursement under all Third Party Payor Programs in which such Persons’ participate).  All such Health Care Permits are, and at all times during the three calendar years immediately preceding the Closing Date have been, in full force and effect and there is and has been no default under, violation of, or other noncompliance with the terms and conditions of any such Health Care Permit.  Except as set forth on Schedule 3.31 as to required consents or approvals of Governmental Authorities under certain Health Care Permits of MedPro in connection with the MedPro Acquisition (where the failure to obtain such consents or approvals could not reasonably be expected to have, in the aggregate, a Material Adverse Effect), to the knowledge of each Credit Party and its Subsidiaries, no condition exists or event has occurred which, in itself or with the giving of notice or lapse of time or both, has resulted or would reasonably be expected to result in the suspension, revocation, termination, restriction, limitation, modification or non-renewal of any Health Care Permit.  No Governmental Authority has taken, or to the knowledge of any Credit Party intends to take, action to suspend, revoke, terminate, place on probation, restrict, limit, modify or not renew any Health Care Permit of any Credit Party or any Subsidiary of any Credit Party.   As of the Closing Date, Schedule 3.31 sets forth an accurate, complete and current list of all material Health Care Permits.

 

(c)            Third Party Payor Authorizations .   Each Credit Party and each of their respective Subsidiaries holds, and at all times during the three calendar years immediately preceding the Closing Date has held, in full force and effect, all Third Party Payor Authorizations necessary to participate in and be reimbursed by all Third Party Payor Programs in which any Credit Party or any Subsidiary of any Credit Party participates.  There is no investigation, audit, claim review, or other action pending, or to the knowledge of any Credit Party, threatened, which could result in a suspension, revocation, termination, restriction, limitation, modification or non-renewal of any Third Party Payor Authorization or result in any Credit Party’s or any of their Subsidiaries’ exclusion from any Third Party Payor Program.

 

(d)           Licensed Personnel .  The Licensed Personnel have complied and currently are in compliance with all applicable Health Care Laws, and hold and, at all times that such Persons have been Licensed Personnel of any Credit Party or any Subsidiary of any Credit Party, have held, all professional licenses and other Health Care Permits and all Third Party Payor Authorizations required in the performance of such Licensed Personnel’s duties for such Credit Party or such Subsidiary, and, each such Health Care Permit and Third Party Payor

 

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Authorization is in full force and effect and, to the knowledge of each Credit Party, no suspension, revocation, termination, impairment, modification or non-renewal of any such Permit or Third Party Payor Authorization is pending or threatened.

 

(e)            Accreditation .  Each Credit Party and each of their respective Subsidiaries has obtained and maintains accreditation in good standing and without limitation or impairment by all applicable accrediting organizations, to the extent prudent and customary in the industry in which it is engaged or required by law (including any foreign law or equivalent regulation), except where the failure to have or maintain such accreditation in good standing or imposition of limitation or impairment would not reasonably be expected to have, in the aggregate, a Material Adverse Effect.

 

(f)             Proceedings; Audits .  There are no pending (or, to the knowledge of any Credit Party, threatened) Proceedings against or affecting any Credit Party or any Subsidiary of any Credit Party or any Licensed Personnel relating to any actual or alleged non-compliance with any Health Care Law or requirement of any Third Party Payor Program.  To the knowledge of each Credit Party and its Subsidiaries, there are no facts, circumstances or conditions that would reasonably be expected to form the basis for any such Proceeding against or affecting any Credit Party or any Subsidiary of any Credit Party or any Licensed Personnel. There currently exist no restrictions, deficiencies, required plans of correction or other such remedial measures with respect to any Health Care Permit of any Credit Party or any Subsidiary of any Credit Party, or any of their participation in any Third Party Payor Program.  Without limiting the foregoing, no validation review, program integrity review, audit or other investigation related to any Credit Party or any Subsidiary of any Credit Party or their respective operations, or the consummation of the transactions contemplated in the Loan Documents or related to the Collateral (i) has been conducted by or on behalf of any Governmental Authority, or (ii) is scheduled, pending or, to the knowledge of any Credit Party, threatened.

 

(g)            Overpayments .  No Credit Party and no Subsidiary of any Credit Party (i) has retained an overpayment received from, or failed to refund any amount due to, any Third Party Payor in violation of any Health Care Law or contract; and (ii) except as set forth on Schedule 3.31 , has received written notice of, or has knowledge of, any overpayment or refunds due to any Third Party Payor.

 

(h)            Material Statements .  No Credit Party and no Subsidiary of any Credit Party, nor any officer, affiliate, employee or agent of any Credit Party or any Subsidiary of any Credit Party, has made an untrue statement of a material fact or fraudulent statement to any Governmental Authority, failed to disclose a material fact that must be disclosed to any Governmental Authority, or committed an act, made a statement or failed to make a statement that, at the time such statement, disclosure or failure to disclose occurred, would reasonably be expected to constitute a violation of any Health Care Law.

 

(i)             Prohibited Transactions .  No Credit Party and no Subsidiary of any Credit Party, nor any officer, affiliate, employee or agent of any Credit Party or any Subsidiary of any Credit Party, directly or indirectly, has (i) offered or paid or solicited or received any remuneration, in cash or in kind, or made any financial arrangements, in violation of any Health Care Law; (ii) given or agreed to give, or is aware that there has been made or that there is any

 

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agreement to make, any gift or gratuitous payment of any kind, nature or description (whether in money, property or services) in violation of any Health Care Law; (iii) made or agreed to make, or is aware that there has been made or that there is any agreement to make, any contribution, payment or gift of funds or property to, or for the private use of, any governmental official, employee or agent where either the contribution, payment or gift or the purpose of such contribution, payment or gift is or was illegal under the laws of any Governmental Authority having jurisdiction over such payment, contribution or gift; (iv) established or maintained any unrecorded fund or asset for any purpose or made any misleading, false or artificial entries on any of its books or records for any reason; or (v) made, or agreed to make, or is aware that there has been made or that there is any agreement to make, any payment to any person with the intention or understanding that any part of such payment would be in violation of any Health Care Law or used or was given for any purpose other than that described in the documents supporting such payment.  To the knowledge of each Credit Party, no person has filed or has threatened to file against any Credit Party or any of their Affiliates an action under any federal or state whistleblower statute, including without limitation, under the False Claims Act of 1863 (31 U.S.C. § 3729 et seq.).

 

(j)             Exclusion .  No Credit Party and no Subsidiary of any Credit Party, nor any owner, officer, director, partner, agent, managing employee or Person with a “direct or indirect ownership interest” (as that phrase is defined in 42 C.F.R. § 420.201) in any Credit Party or any Subsidiary of any Credit Party, nor any Licensed Personnel of any Credit Party or any Subsidiary of any Credit Party, has been (or, has been threatened to be) (i) excluded from any Third Party Payor Program pursuant to 42 U.S.C. § 1320a-7 and related regulations, (ii) “suspended” or “debarred” from selling products to the U.S. government or its agencies pursuant to the Federal Acquisition Regulation, relating to debarment and suspension applicable to federal government agencies generally (42 C.F.R. Subpart 9.4), or other applicable laws or regulations, (iii) debarred, disqualified, suspended or excluded from participation in any Third Party Payor Program or is listed on the General Services Administration list of excluded parties, nor is any such debarment, disqualification, suspension or exclusion threatened or pending, or (iv) made a party to any other action by any Governmental Authority that may prohibit it from selling products or providing services to any governmental or other purchaser pursuant to any federal, state or local laws or regulations.

 

(k)            Corporate Integrity Agreement .  No Credit Party and no Subsidiary of any Credit Party, nor any owner, officer, director, partner, agent, managing employee or Person with a “direct or indirect ownership interest” (as that phrase is defined in 42 C.F.R. §1001.1001) in any Credit Party or any Subsidiary of any Credit Party is a party to, or bound by, any order, individual integrity agreement, corporate integrity agreement, corporate compliance agreement, deferred prosecution agreement, or other formal or informal agreement with any Governmental Authority concerning compliance with Health Care Laws.

 

(l)             Reimbursement Coding .  To the extent any Credit Party or any Subsidiary of any Credit Party provides to its customers or any other Persons reimbursement coding or billing advice, all such advice is and, as applicable, has been, complete and accurate, and conforms and, as applicable, has conformed, to the applicable American Medical Association’s Current Procedural Terminology (CPT), the International Classification of Disease, Ninth

 

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Revision, Clinical Modification (ICD 9 CM), and other applicable coding systems, and the advice can be relied upon to create accurate claims for reimbursement by Third Party Payors.

 

(m)           Recoupments .  On each Borrowing Base Certificate given to Agent, Borrower has disclosed to Agent the amount of any material recoupments or offsets or set-offs of any Third Party Payor being sought, requested or claimed of which any Credit Party is aware, or, to the knowledge of any Credit Party, have been threatened against any Credit Party or any Subsidiary of any Credit Party.

 

ARTICLE IV.
AFFIRMATIVE COVENANTS

 

Each Credit Party covenants and agrees that, so long as any Lender shall have any Commitment hereunder, or any Loan or other Obligation (other than contingent indemnification Obligations to the extent no claim giving rise thereto has been asserted) shall remain unpaid or unsatisfied:

 

4.1           Financial Statements .

 

Each Credit Party shall maintain, and shall cause each of its Subsidiaries to maintain, a system of accounting established and administered in accordance with sound business practices to permit the preparation of financial statements in conformity with GAAP (provided that monthly financial statements shall not be required to have footnote disclosures and are subject to normal year-end adjustments).  The Borrower shall deliver to Agent and each Lender by Electronic Transmission and in detail reasonably satisfactory to Agent and the Required Lenders:

 

(a)            as soon as available, but not later than one hundred thirty five (135) days after the end of each Fiscal Year, a copy of the audited consolidated and consolidating balance sheets of the Borrower and each of its Subsidiaries as at the end of such year and the related consolidated and consolidating statements of income or operations, shareholders’ equity and cash flows for such Fiscal Year, setting forth in each case in comparative form the figures for the previous Fiscal Year, and accompanied by the report of any nationally recognized independent certified public accounting firm reasonably acceptable to Agent which report shall (i) contain an unqualified opinion, stating that such consolidated financial statements present fairly in all material respects the financial position for the periods indicated in conformity with GAAP applied on a basis consistent with prior years and (ii) not include any explanatory paragraph expressing substantial doubt as to going concern status; provided , however , that Agent acknowledges that, as of a Closing Date, BDO USA, LLP shall be an acceptable independent certified public accounting firm; and

 

(b)            as soon as available, but not later than thirty (30) days after the end of each fiscal month of each year, a copy of the unaudited consolidated and consolidating balance sheets of the Borrower and each of its Subsidiaries, and the related consolidated and consolidating statements of income and cash flows as of the end of such fiscal month and for the portion of the Fiscal Year then ended, all certified by an appropriate Responsible Officer of the Borrower as being complete and correct and fairly presenting, in all material respects, in

 

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accordance with GAAP, the financial position and the results of operations of the Borrower and its Subsidiaries, subject to normal year-end adjustments and absence of footnote disclosures.

 

4.2           Appraisals; Certificates; Other Information .

 

The Borrower shall furnish to Agent and each Lender by Electronic Transmission:

 

(a)            together with each delivery of financial statements pursuant to Sections 4.1(a)  and 4.1(b) , (i) a management discussion and analysis report, in reasonable detail, signed by the chief financial officer of the Borrower, describing the operations and financial condition of the Credit Parties and their Subsidiaries for the fiscal month and the portion of the Fiscal Year then ended (or for the Fiscal Year then ended in the case of annual financial statements), provided that, unless otherwise required by Agent or if an Event of Default has occurred and is continuing, such management discussion and analysis reports need only be delivered together with the delivery of financial statements for the third fiscal month of each fiscal quarter, and (ii) solely as it relates to the consolidating and consolidated statements of income, a report setting forth in comparative form the corresponding figures for the corresponding periods of the previous Fiscal Year and the corresponding figures from the most recent projections for the current Fiscal Year delivered pursuant to Section 4.2(k)  and discussing the reasons for any significant variations;

 

(b)            concurrently with the delivery of the financial statements referred to in Sections 4.1(a)  and 4.1(b)  above, a fully and properly completed Compliance Certificate in the form of Exhibit 4.2(b) , certified on behalf of the Borrower by a Responsible Officer of the Borrower;

 

(c)            promptly after the same are sent, copies of all financial statements and reports which any Credit Party sends to its shareholders or other equity holders, as applicable, generally and promptly after the same are filed, copies of all financial statements and regular, periodic or special reports which such Person may make to, or file with, the Securities and Exchange Commission or any successor or similar Governmental Authority;

 

(d)            as soon as available and in any event within fifteen (15) days after the end of each calendar month, and at such other times as Agent may reasonably require, a Borrowing Base Certificate, certified on behalf of the Borrower by a Responsible Officer of the Borrower, setting forth the Borrowing Base of the Borrower as at the end of the most-recently ended fiscal month or as at such other date as Agent may reasonably require;

 

(e)            concurrently with the delivery of each Borrowing Base Certificate on or after the Eligible Inventory Inclusion Date, a summary of Inventory by location and type with a supporting perpetual inventory report, in each case accompanied by such supporting detail and documentation as shall be requested by Agent in its reasonable discretion;

 

(f)             concurrently with the delivery of the Borrowing Base Certificate, a monthly trial balance showing Accounts by payor class outstanding aged from invoice date as follows:  1 to 30 days, 31 to 60 days, 61 to 90 days and 91 days or more, accompanied by such supporting detail and documentation as shall be requested by Agent in its reasonable discretion;

 

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(g)            concurrently with the delivery of the Borrowing Base Certificate, an aging of accounts payable accompanied by such supporting detail and documentation as shall be requested by Agent in its reasonable discretion;

 

(h)            on a monthly basis (together with a copy of all or any part of such delivery requested by any Lender in writing after the Closing Date), collateral reports, including all additions and reductions (cash and non-cash) with respect to Accounts of the Credit Parties by payor class in each case accompanied by such supporting detail and documentation as shall be requested by Agent in its reasonable discretion each of which shall be prepared by the Borrower as of the last day of the immediately preceding fiscal month; provided that, if as of any date of determination the average daily principal balance of Revolving Loans for the immediately preceding fiscal month exceeds 80% of the total Borrowing Base at such time (without regard to the Aggregate Revolving Loan Commitment then in effect), Agent may request such collateral reports on a more frequent basis as of a date specified by Agent in any such request;

 

(i)             to Agent, at the time of delivery of each of the monthly financial statements delivered pursuant to Section 4.1(b) ;

 

(i)             a reconciliation of the most recent Borrowing Base Certificate, general ledger and month-end accounts receivable aging of the Borrower to the Borrower’s general ledger and monthly financial statements delivered pursuant to Section 4.1(b) , in each case, accompanied by such supporting detail and documentation as shall be requested by Agent in its reasonable discretion;

 

(ii)            on or after the Eligible Inventory Inclusion Date, a reconciliation of the perpetual Inventory by location to the Borrower’s most recent Borrowing Base Certificate, general ledger and monthly Financial Statements delivered pursuant to Section 4.1(b) , in each case, accompanied by such supporting detail and documentation as shall be requested by Agent in its reasonable discretion; and

 

(iii)           a reconciliation of the accounts payable aging to the Borrower’s general ledger and monthly Financial Statements delivered pursuant to Section 4.1(b) , in each case, accompanied by such supporting detail and documentation as shall be requested by Agent in its reasonable discretion;

 

(iv)           a reconciliation of the outstanding Loans as set forth in the monthly loan account statement provided by Agent to the Borrower’s general ledger and monthly Financial Statements delivered pursuant to Section 4.1(b) , in each case, accompanied by such supporting detail and documentation as shall be requested by Agent in its reasonable discretion;

 

(j)             at the time of delivery of each of the monthly or annual financial statements delivered pursuant to Section 4.1 , (i) a listing of government contracts of the Borrower subject to the Federal Assignment of Claims Act of 1940 or any similar state or municipal law; and (ii) a list of any applications for the registration of any Patent, Trademark or Copyright filed by any Credit Party with the United States Patent and Trademark Office, the

 

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United States Copyright Office or any similar office or agency in each case entered into or filed in the prior fiscal month;

 

(k)            as soon as available and in any event no later than 45 days after the commencement of each Fiscal Year of the Borrower, projections of the Credit Parties (and their Subsidiaries’) consolidated and consolidating financial performance for such Fiscal Year and the next succeeding two (2) Fiscal Years on a year by year basis, and for such Fiscal Year on a month by month basis;

 

(l)             promptly upon receipt thereof, copies of any reports submitted by the Borrower’s certified public accountants in connection with each annual, interim or special audit or review of any type of the financial statements or internal control systems of any Credit Party made by such accountants, including any comment letters submitted by such accountants to management of any Credit Party in connection with their services;

 

(m)           upon Agent’s request from time to time after the Eligible Inventory Inclusion Date, the Credit Parties shall permit and enable Agent to obtain appraisals in form and substance and from appraisers reasonably satisfactory to Agent stating the then Net Orderly Liquidation Value, or such other value as determined by Agent, of all or any portion of the Inventory of any Credit Party or any Subsidiary of any Credit Party; provided , that notwithstanding any provision herein to the contrary, the Credit Parties shall only be obligated to reimburse Agent for the expenses of such appraisals occurring once per year or more frequently so long as an Event of Default has occurred and is continuing; and

 

(n)            promptly, such additional business, financial, corporate affairs, perfection certificates and other information as Agent may from time to time reasonably request.

 

4.3           Notices .

 

The Borrower shall notify promptly Agent and each Lender of each of the following (and in no event later than three (3) Business Days after a Responsible Officer becomes aware thereof):

 

(a)            the occurrence or existence of any Default or Event of Default, or any event or circumstance that foreseeably will become a Default or Event of Default;

 

(b)            any breach or non performance of, or any default under, any Contractual Obligation of any Credit Party or any Subsidiary of any Credit Party, or any violation of, or non-compliance with, any Requirement of Law, which would reasonably be expected to result, either individually or in the aggregate, in a Material Adverse Effect, including a description of such breach, non-performance, default, violation or non-compliance and the steps, if any, such Person has taken, is taking or proposes to take in respect thereof;

 

(c)            any dispute, litigation, investigation, proceeding or suspension which may exist at any time between any Credit Party or any Subsidiary of any Credit Party and any Governmental Authority which would reasonably be expected to result, either individually or in the aggregate, in Liabilities in excess of $500,000;

 

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(d)            the commencement of, or any material development in, any litigation or proceeding affecting any Credit Party or its Subsidiaries or any Property or Product of any Credit Party or its Subsidiaries (i) in which the amount of damages claimed is $1,000,000 or more, individually or in the aggregate, (ii) if adversely determined, would reasonably be expected to have a Material Adverse Effect, (iii) in which the relief sought is an injunction or other stay of the performance of this Agreement, any other Loan Document or any Related Agreement, (iv) alleges potential or actual violations of any Public Health Law or (v) alleges potential or actual violations of any Health Care Law by any Credit Party or any Subsidiary of any Credit Party or any of its Licensed Personnel;

 

(e)            (i) the receipt by any Credit Party of any notice of violation of or potential liability or similar notice under Environmental Law, (ii)(A) unpermitted Releases, (B) the existence of any condition that could reasonably be expected to result in violations of or Liabilities under, any Environmental Law or (C) the commencement of, or any material change to, any action, investigation, suit, proceeding, audit, claim, demand, dispute alleging a violation of or Liability under any Environmental Law which in the case of clauses (A) , (B)  and (C)  above, in the aggregate for all such clauses, would reasonably be expected to result in Material Environmental Liabilities, (iii) the receipt by any Credit Party of notification that any Property of any Credit Party is subject to any Lien in favor of any Governmental Authority securing, in whole or in part, Environmental Liabilities and (iv) any proposed acquisition or lease of Real Estate, if such acquisition or lease would have a reasonable likelihood of resulting in Material Environmental Liabilities;

 

(f)             (i) on or prior to any filing by any ERISA Affiliate of any notice of any reportable event under Section 4043 of ERISA, or intent to terminate any Title IV Plan, a copy of such notice (ii) promptly, and in any event within ten (10) days, after any officer of any ERISA Affiliate knows or has reason to know that a request for a minimum funding waiver under Section 412 of the Code has been filed with respect to any Title IV Plan or Multiemployer Plan, a notice describing such waiver request and any action that any ERISA Affiliate proposes to take with respect thereto, together with a copy of any notice filed with the PBGC or the IRS pertaining thereto, and (iii) promptly, and in any event within ten (10) days after any officer of any ERISA Affiliate knows or has reason to know that an ERISA Event will or has occurred, a notice describing such ERISA Event, and any action that any ERISA Affiliate proposes to take with respect thereto, together with a copy of any notices received from or filed with the PBGC, IRS, Multiemployer Plan or other Benefit Plan pertaining thereto;

 

(g)            any Material Adverse Effect subsequent to the date of the most recent audited financial statements delivered to Agent and Lenders pursuant to this Agreement;

 

(h)            any material change in accounting policies or financial reporting practices by any Credit Party or any Subsidiary of any Credit Party;

 

(i)             any labor controversy resulting in or threatening to result in any strike, work stoppage, boycott, shutdown or other labor disruption against or involving any Credit Party or any Subsidiary of any Credit Party if the same would reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect;

 

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(j)             the creation, establishment or acquisition of any Subsidiary or the issuance by or to any Credit Party of any Stock or Stock Equivalent (except for any such issuance by Borrower in connection with the conversion of Series A Preferred Stock into common stock);

 

(k)            (i) the creation, or filing with the IRS or any other Governmental Authority, of any Contractual Obligation or other document extending, or having the effect of extending, the period for assessment or collection of any income or franchise or other material taxes with respect to any Tax Affiliate and (ii) the creation of any Contractual Obligation of any Tax Affiliate, or the receipt of any request directed to any Tax Affiliate, to make any material adjustment under Section 481(a) of the Code, by reason of a change in accounting method or otherwise;

 

(l)             if the Accounts owing by any Account Debtor and its Affiliates (other than any Federal/State Healthcare Program Account Debtor) to the Borrower and its Subsidiaries exceed fifteen percent (15%) of all Accounts owing by all Account Debtors as of any date; provided , however, that Borrower’s Borrowing Base Certificate shall satisfy the notice requirement with respect to the information contained in this Section 4.3(l) ;

 

(m)           (i) any notice that the FDA or any other similar Governmental Authority is limiting, suspending or revoking any Registration, changing the market classification, distribution pathway or parameters, or labeling of the Products of the Credit Parties or their respective Subsidiaries, or considering any of the foregoing; (ii) any Credit Party or any of its Subsidiaries becoming subject to any administrative or regulatory action, inspection, Form FDA 483 observation, warning letter, notice of violation letter, or other notice, response or commitment made to or with the FDA or any comparable Governmental Authority, or any Product of any Credit Party or any of its Subsidiaries being seized, withdrawn, recalled, detained, or subject to a suspension of manufacturing, or the commencement of any proceedings in the United States or any other jurisdiction seeking the withdrawal, recall, suspension, import detention, or seizure of any Product are pending or threatened against the Credit Parties or their respective Subsidiaries; and (iii) any voluntary withdrawal or recall of any Product by any Credit Party or any of its Subsidiaries in an aggregate amount of $5,000,000 or which would, in the aggregate, have a Material Adverse Effect; and

 

(n)            (1) the voluntary disclosure by any Credit Party or any Subsidiary of any Credit Party to the Office of the Inspector General of the United States Department of Health and Human Services, any Third Party Payor Program (including to any intermediary, carrier or contractor of such Program), of an actual overpayment matter involving the submission of claims to a Third Party Payor in an amount greater than $500,000 or a potential overpayment matter involving the submission of claims to a Third Party Payor in an amount greater than $2,000,000; (2)  that any Credit Party or any Subsidiary of any Credit Party, an owner, officer, manager, employee or Person with a “direct or indirect ownership interest” (as that phrase is defined in 42 C.F.R. §420.201) in any Credit Party or any Subsidiary of any Credit Party:  (A) has had a civil monetary penalty assessed against him or her pursuant to 42 U.S.C. §1320a-7a or is the subject of a proceeding seeking to assess such penalty; (B) has been excluded from participation in a Federal Health Care Program (as that term is defined in 42 U.S.C. §1320a-7b) or is the subject of a proceeding seeking to assess such penalty; (C) has been convicted (as that term is defined in 42 C.F.R. §1001.2) of any of those offenses described in 42 U.S.C. §1320a-7b or 18 U.S.C. §§669,

 

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1035, 1347, 1518 or is the subject of a proceeding seeking to assess such penalty; or (D) has been involved or named in a U.S. Attorney complaint made or any other action taken pursuant to the False Claims Act under 31 U.S.C. §§3729-3731 or in any qui tam action brought pursuant to 31 U.S.C. §3729 et seq.; (3) receipt by any Credit Party or any Subsidiary of any Credit Party of any notice or communication from an accrediting organization that such Person is in danger of losing its accreditation due to a failure to comply with a plan of correction; (4) any validation review, program integrity review or material reimbursement audits related to any Credit Party or any Subsidiary of any Credit Party in connection with any Third Party Payor Program; (5) any claim to recover any alleged overpayments with respect to any receivables, or any notice of any fees of any Credit Party or any Subsidiary of any Credit Party being contested or disputed, in each case, in excess of $500,000; (6) notice of any material reduction in the level of reimbursement expected to be received with respect to receivables; (7) any allegations of material licensure violations or fraudulent acts or omissions involving any Credit Party or any Subsidiary of any Credit Party, or, to the knowledge of any Credit Party, any Licensed Personnel; (8) the pending or threatened imposition of any material fine or penalty by any Governmental Authority under any Health Care Law against any Credit Party or any Subsidiary of any Credit Party, or, to the knowledge of any Credit Party, any Licensed Personnel; (9) any changes in any Health Care Law (including the adoption of a new Health Care Law) known to any Credit Party or any Subsidiary or any Credit Party that would reasonably be expected to have, in the aggregate, a Material Adverse Effect;  (10) notice of any Credit Party’s or any of their Subsidiaries’ fees in excess of $500,000 being contested or disputed; (11) any pending or threatened revocation, suspension, termination, probation, restriction, limitation, denial, or non-renewal with respect to any Health Care Permit or Third Party Payor Authorization except for any such non-renewal at the election of a Credit Party or a Subsidiary of a Credit Party as would not reasonably be expected to have, in the aggregate, a Material Adverse Effect; and (12) notice of the occurrence of any reportable event as defined in any corporate integrity agreement, corporate compliance agreement or deferred prosecution agreement pursuant to which any Credit Party or any Subsidiary of any Credit Party has to make a submission to any Governmental Authority or other Person under the terms of such agreement, if any.

 

Each notice pursuant to this Section 4.3 shall be in electronic form accompanied by a statement by a Responsible Officer of the Borrower setting forth details of the occurrence referred to therein, and stating what action the Borrower or other Person proposes to take with respect thereto and at what time.  Each notice under Section 4.3(a)  shall describe with particularity any and all clauses or provisions of this Agreement or other Loan Document that have been breached or violated.

 

4.4           Preservation of Corporate Existence, Etc .

 

Each Credit Party shall, and shall cause each of its Subsidiaries to:

 

(a)            preserve and maintain in full force and effect its organizational existence and good standing under the laws of its jurisdiction of incorporation, organization or formation, as applicable, except as permitted by Section 5.3 ;

 

(b)            preserve and maintain in full force and effect all rights, privileges, qualifications, permits, licenses and franchises necessary in the normal conduct of its business

 

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except as permitted by Sections 5.2 and 5.3 and except as would not reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect;

 

(c)            use its commercially reasonable efforts, in the Ordinary Course of Business, to preserve its business organization and preserve the goodwill and business of the customers, suppliers and others having material business relations with it;

 

(d)            preserve or renew all of its registered trademarks, trade names and service marks, the non preservation of which would reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect; and

 

(e)            conduct its business and affairs without infringement of or interference with any Intellectual Property of any other Person in any material respect and shall comply in all material respects with the terms of its IP Licenses.

 

4.5           Maintenance of Property .

 

Each Credit Party shall maintain, and shall cause each of its Subsidiaries to maintain, and preserve all its Property which is used or useful in its business in good working order and condition, ordinary wear and tear excepted and shall make all necessary repairs thereto and renewals and replacements thereof except where the failure to do so would not reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect.

 

4.6           Insurance .

 

(a)            Each Credit Party shall, and shall cause each of its Subsidiaries to, (i) maintain or cause to be maintained in full force and effect all policies of insurance of any kind with respect to the Property and businesses of the Credit Parties and such Subsidiaries (including policies of life, fire, theft, product liability, public liability, Flood Insurance, property damage, other casualty, employee fidelity, workers’ compensation, business interruption and employee health and welfare insurance) with financially sound and reputable insurance companies or associations (in each case that are not Affiliates of the Borrower) of a nature and providing such coverage as is sufficient and as is customarily carried by businesses of the size and character of the business of the Credit Parties and (ii) cause all such insurance relating to any Property or business of any Credit Party to name Agent as additional insured or lenders loss payee, as agent for the Lenders, as appropriate.  All policies of insurance on real and personal property of the Credit Parties will contain an endorsement, in form and substance acceptable to Agent, showing loss payable to Agent (Form CP 1218 or equivalent and naming Agent as lenders loss payee as agent for the Lenders) and extra expense and business interruption endorsements.  Such endorsement, or an independent instrument furnished to Agent, will provide that the insurance companies will give Agent at least 30 days’ prior written notice before any such policy or policies of insurance shall be altered or canceled and that no act or default of the Credit Parties or any other Person shall affect the right of Agent to recover under such policy or policies of insurance in case of loss or damage.  Each Credit Party shall direct all present and future insurers under its “All Risk” policies of property insurance to pay all proceeds payable thereunder directly to Agent.  If any insurance proceeds are paid by check, draft or other instrument payable to any Credit Party and Agent jointly, Agent may endorse such Credit Party’s name thereon and

 

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do such other things as Agent may deem advisable to reduce the same to cash.  Agent reserves the right at any time, upon review of each Credit Party’s risk profile, to require additional forms and limits of insurance.  Notwithstanding the requirement in clause (i)  above, Federal Flood Insurance shall not be required for (x) Real Estate not located in a Special Flood Hazard Area, or (y) Real Estate located in a Special Flood Hazard Area in a community that does not participate in the National Flood Insurance Program.

 

(b)            Unless the Credit Parties provide Agent with evidence of the insurance coverage required by this Agreement (including, without limitation, Flood Insurance), Agent may, after ten (10) days’ prior notice to the Borrower (and an opportunity for the Credit Parties to cure during such period) or at any time if an Event of Default exists, purchase insurance (including, without limitation, Flood Insurance) at the Credit Parties’ expense to protect Agent’s and Lenders’ interests in the Credit Parties’ and their Subsidiaries’ properties.  This insurance may, but need not, protect the Credit Parties’ and their Subsidiaries’ interests.  The coverage that Agent purchases may not pay any claim that any Credit Party or any Subsidiary of any Credit Party makes or any claim that is made against such Credit Party or any Subsidiary in connection with said Property.  The Borrower may later cancel any insurance purchased by Agent, but only after providing Agent with evidence that there has been obtained insurance as required by this Agreement.  If Agent purchases insurance, the Credit Parties will be responsible for the costs of that insurance, including interest and any other charges Agent may impose in connection with the placement of insurance, until the effective date of the cancellation or expiration of the insurance. The costs of the insurance shall be added to the Obligations.  The costs of the insurance may be more than the cost of insurance the Borrower may be able to obtain on its own.

 

(c)            The Credit Parties appoint Agent as their attorney-in-fact to settle or adjust all property damage claims under its casualty insurance policies; provided , that such power of attorney shall only be exercised so long as an Event of Default has occurred and is continuing or if the casualty claim exceeds $1,000,000.  Agent shall have no duty to exercise such power of attorney, but may do so at its discretion.

 

4.7           Payment of Obligations .

 

Each Credit Party shall, and shall cause each of its Subsidiaries to, pay, discharge and perform as the same shall become due and payable or required to be performed, all their respective obligations and liabilities, including:

 

(a)            all tax liabilities, assessments and governmental charges or levies upon it or its Property, unless (i) the same are being contested in good faith by appropriate proceedings diligently prosecuted which stay the filing or enforcement of any Lien and for which adequate reserves in accordance with GAAP are being maintained by such Person; and (ii) the aggregate Liabilities secured by such Lien do not exceed $250,000.

 

(b)            all lawful claims which, if unpaid, would by law become a Lien upon its Property unless the same are being contested in good faith by appropriate proceedings diligently prosecuted which stay the imposition or enforcement of any Lien and for which adequate reserves in accordance with GAAP are being maintained by such Person;

 

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(c)            all Indebtedness, as and when due and payable, but subject to any subordination provisions contained herein, in any other Loan Documents and/or in any instrument or agreement evidencing such Indebtedness;

 

(d)            the performance of all obligations under any Contractual Obligation to such Credit Party or any of its Subsidiaries is bound, or to which it or any of its Property is subject, including the Related Agreements, except where the failure to perform would not reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect; and

 

(e)            payments to the extent necessary to avoid the imposition of a Lien with respect to, or the involuntary termination of any underfunded Benefit Plan.

 

4.8           Compliance with Laws .

 

Each Credit Party shall, and shall cause each of its Subsidiaries to, comply with all Requirements of Law of any Governmental Authority having jurisdiction over it or its business, except where the failure to comply would not reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect.

 

4.9           Inspection of Property and Books and Records .

 

Each Credit Party shall maintain and shall cause each of its Subsidiaries to maintain proper books of record and account, in which full, true and correct entries in conformity with GAAP consistently applied shall be made of all financial transactions and matters involving the assets and business of such Person.  Each Credit Party shall, and shall cause each of its Subsidiaries to, with respect to each owned, leased, or controlled property, during normal business hours and upon reasonable advance notice (unless an Event of Default shall have occurred and be continuing, in which event no notice shall be required and Agent shall have access at any and all times during the continuance thereof):  (a) provide access to such property to Agent and any of its Related Persons, as frequently as Agent determines to be reasonably appropriate; and (b) permit Agent and any of its Related Persons to conduct field examinations, audit, inspect and make extracts and copies (or take originals if reasonably necessary) from all of such Credit Party’s books and records, and evaluate and make physical verifications of the Inventory and other Collateral in any manner and through any medium that Agent considers advisable, in each instance, at the Credit Parties’ expense; provided that, in addition to reimbursement of Agent for expenses of field examinations, audit and inspections prior to the Closing Date, a take-down field examination following the Closing Date and in connection with any Permitted Acquisition, the Credit Parties shall only be obligated to reimburse Agent for the expenses for two such field examinations, audits and inspections per year, or more frequently if either (i) an Event of Default has occurred and is continuing or (ii) the average daily Availability in any fiscal month reaches or falls below $20,000,000.  Any Lender may accompany Agent or its Related Persons in connection with any inspection at such Lender’s expense.

 

4.10         Use of Proceeds .

 

The Borrower shall use the proceeds of the Loans solely for working capital, capital expenditures and other general corporate purposes not in contravention of any Requirement of

 

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Law and not in violation of this Agreement, including for Permitted Acquisitions and Restricted Payments to the extent permitted to be made under Section 5.11.

 

4.11         Cash Management Systems .

 

(a)            Each Credit Party shall enter into, and cause each depository, securities intermediary or commodities intermediary to enter into, Control Agreements providing for “full” cash dominion with respect to each of its deposit, securities, commodity or similar accounts maintained by such Person (other than any payroll account so long as such payroll account is a zero balance account, any withholding tax account, any fiduciary account, any Segregated Governmental Account and other exceptions explicitly set forth in clauses (b), (c) and (d) of this Section 4.11) as of or after the Closing Date.  For purposes of computing interest and fees any payments made to Agent through such accounts shall be deemed received on the Business Day following the Business Day on which immediately available funds are received by Agent prior to 1:00 p.m. (New York time) with respect to such payment, and any payment which is received by Agent through such accounts later than 1:00 p.m. (New York time) on any Business Day or at any time on a day that is not a Business Day shall be deemed to have been received on the second succeeding Business Day.  In addition, at Agent’s request, Credit Parties will enter into Control Agreements providing for springing cash dominion over disbursement accounts as of the Closing Date, except as set forth in the preceding sentence.  At any time the aggregate amount of outstanding Obligations exceeds $5,000,000 or a Default or Event of Default exists, the Credit Parties shall not maintain cash on deposit in disbursement accounts in excess of outstanding checks and wire transfers payable from such accounts and amounts necessary to meet minimum balance requirements.  The Credit Parties shall establish deposit accounts at Comerica Bank subject to Control Agreements providing for “full” cash dominion (collectively, the “Controlled Collateral Account”) and direct all Account Debtors to remit all payments directly to such Controlled Collateral Account (except that, in those of Governmental Payors making payments under Medicare or Medicaid, the Credit Parties shall establish, and direct such Governmental Payors to remit all payments to, a Segregated Governmental Account at Comerica Bank).  Notwithstanding the foregoing, the Credit Parties may instruct Account Debtors to make payment to an alternate address for electronic deposit capture (“EDC Payments”), which such EDC Payments shall be immediately deposited by the Credit Parties in the Controlled Collateral Account; provided that, in the event the aggregate amount of EDC Payments in any three calendar month period ending on or after the Closing Date exceeds 40% of the aggregate Account collections in such period, or at any time a Default or Event of Default has occurred and is continuing, the Credit Parties shall, promptly upon Agent’s request, establish lockboxes subject to Control Agreements at Comerica Bank and direct all such Account Debtors to make payment to such lockboxes or to the Controlled Collateral Account.

 

(b)            AHF shall be permitted to retain amounts in its existing deposit accounts at TD Bank sufficient to meet necessary minimum balance requirements as well as pay checks and wire transfers payable from such accounts and outstanding against such accounts.  In the event that such TD Bank account(s) contain, in the aggregate, $2,000,000 or more at any one time, then AHF shall transfer such excess amount to the deposit account(s) at Comerica Bank subject to a Control Agreement within three (3) Business Days thereafter.  AHF shall not make any disbursements out of such deposit accounts at TD Bank after December 31, 2014 (other than payment checks and wire transfers payable from such accounts and outstanding against such

 

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accounts as of such date).  AHF shall close all accounts with TD Bank by March 31, 2015, except with respect to any such account which is subject to a Control Agreement by such date.

 

(c)            MedPro shall be permitted to retain amounts in its existing deposit accounts at First Citizens Bank sufficient to meet necessary minimum balance requirements as well as pay checks and wire transfers payable from such accounts and outstanding against such accounts.  In the event that such First Citizens Bank account(s) contain, in the aggregate, $4,000,000 or more at any one time, then MedPro shall transfer such excess amount to the deposit account(s) at Comerica Bank subject to a Control Agreement within three (3) Business Days thereafter.  MedPro shall not make any disbursements out of such deposit accounts at First Citizens Bank after the 270th day following the MedPro Acquisition Closing Date (other than payment checks and wire transfers payable from such accounts and outstanding against such accounts as of such date).  MedPro shall close all accounts with First Citizens Bank within 455 days of the MedPro Acquisition Closing Date, except with respect to any such account which is subject to a Control Agreement by such date.

 

(d)            Envoy shall be permitted to maintain a zero balance account at Comerica for receipt of collections and for disbursements in the ordinary course of its business so long as amounts in such account are transferred to an account(s) at Comerica Bank subject to a Control Agreement on the date of receipt (and Envoy shall at all times maintain standing instructions to transfer such amounts to such account(s)).

 

(e)            In addition, in order to segregate and to facilitate perfection of Agent’s security interest in funds received from Governmental Payors making payments under Medicare or Medicaid, if any, the Credit Parties agree that the Credit Parties shall (a) segregate collections made from Governmental Payors making payments under Medicare or Medicaid, from collections made from all other Account Debtors and customers of the applicable Credit Parties, including, without limitation, by (i) notifying all payors (other than Governmental Payors making payments under Medicare or Medicaid) then instructed to make payments to such Credit Parties’ deposit accounts to make payments to a deposit account subject to a Control Agreement, and (ii) notifying all Governmental Payors making payments under Medicare or Medicaid to make payments to a Segregated Governmental Account, and (b) enter into, and cause each applicable depository to enter into, a “sweep” agreement (a “ Sweep Agreement ”) with respect to each Segregated Governmental Account pursuant to which such depository will agree to sweep amounts deposited therein on daily basis to a deposit account of the Credit Parties subject to a Control Agreement in favor of Agent as and when funds clear and become available in accordance with such depository’s customary procedures, each with such financial institution and each in form and substance reasonably acceptable to Agent.  No Credit Party may change any sweep instruction set forth in such Sweep Agreement without the prior written consent of Agent.

 

(f)             To the extent any Person, whether a Governmental Payor or otherwise, remits payments to an incorrect deposit account or otherwise makes payments not in accordance with the provisions of this Section 4.11 or an applicable Credit Party’s payment direction, such Credit Party shall contact such Person and use its commercially reasonable efforts to redirect payment from such Person in accordance with the terms hereof. Agent agrees and confirms that Credit Parties will have sole dominion and “control” (within the meaning of Section 9-104 of the

 

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UCC and the common law) over each Segregated Governmental Account and all funds therein and Agent disclaims any right of any nature whatsoever to control or otherwise direct or make any claim against the funds held in any Segregated Governmental Account from time to time.  In addition, promptly following the Closing Date and thereafter, to the extent any Person, whether a Governmental Payor or otherwise, remits payments that constitute EDC Payments, such Credit Party shall contact such Person and use its commercially reasonable efforts to direct payment from such Person to the Controlled Collateral Account or the Segregated Government Account.

 

4.12         Landlord Agreements .

 

Each Credit Party shall use commercially reasonable efforts to obtain a landlord agreement or bailee or mortgagee waivers, as applicable, from the lessor of each leased Property, bailee in possession of any Collateral or mortgagee of any owned Property with respect to each location where any Collateral is stored or located, in each case for locations where the Inventory at such location or in possession of said third party has an aggregate book value of $100,000 or more or where books and records of a Credit Party are located, which agreement shall be reasonably satisfactory in form and substance to Agent; provided , that, except as to locations at which books and records are located, each Credit Party shall not be required to use such commercially reasonable efforts until the Inventory Inclusion Date.

 

4.13         Further Assurances .

 

(a)            Each Credit Party shall ensure that all written information, exhibits and reports furnished to Agent or the Lenders do not and will not contain any untrue statement of a material fact and do not and will not omit to state any material fact or any fact necessary to make the statements contained therein not misleading in light of the circumstances in which made, and will promptly disclose to Agent and the Lenders and correct any defect or error that may be discovered therein or in any Loan Document or in the execution, acknowledgement or recordation thereof.

 

(b)            Promptly upon request by Agent, the Credit Parties shall (and, subject to the limitations hereinafter set forth, shall cause each of their Subsidiaries to) take such additional actions and execute such documents as Agent may reasonably require from time to time in order (i) to carry out more effectively the purposes of this Agreement or any other Loan Document, (ii) to subject to the Liens created by any of the Collateral Documents any of the Properties, rights or interests covered by any of the Collateral Documents, (iii) to perfect and maintain the validity, effectiveness and priority of any of the Collateral Documents and the Liens intended to be created thereby, and (iv) to better assure, convey, grant, assign, transfer, preserve, protect and confirm to the Secured Parties the rights granted or now or hereafter intended to be granted to the Secured Parties under any Loan Document.  Without limiting the generality of the foregoing and except as otherwise approved in writing by Required Lenders, the Credit Parties shall cause each of their Domestic Subsidiaries (other than Domestic Subsidiaries owned indirectly through a Foreign Subsidiary) and, to the extent no 956 Impact exists, Foreign Subsidiaries, and Domestic Subsidiaries owned indirectly through a Foreign Subsidiary, to guaranty the Obligations and to cause each such Subsidiary to grant to Agent, for the benefit of the Secured Parties, a security interest in, subject to the limitations hereinafter set forth, all of such Subsidiary’s Property to secure such guaranty.  Furthermore and except as otherwise approved in writing by Required

 

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Lenders, each Credit Party shall, and shall cause each of its Domestic Subsidiaries (other than Domestic Subsidiaries owned indirectly through a Foreign Subsidiary) to, pledge all of the Stock and Stock Equivalents of each of its Domestic Subsidiaries (other than Domestic Subsidiaries owned indirectly through a Foreign Subsidiary) and First Tier Foreign Subsidiaries (provided that with respect to any First Tier Foreign Subsidiary, if a 956 Impact exists such pledge shall be limited to sixty-five percent (65%) of such Foreign Subsidiary s outstanding voting Stock and Stock Equivalents and one hundred percent (100%) of such Foreign Subsidiary s outstanding non-voting Stock and Stock Equivalents) and to the extent no 956 Impact exists, each of its Foreign Subsidiaries to pledge all of the Stock and Stock Equivalent of each of its Subsidiaries, in each instance, to Agent, for the benefit of the Secured Parties, to secure the Obligations.  In connection with each pledge of Stock and Stock Equivalents, the Credit Parties shall deliver, or cause to be delivered, to Agent, irrevocable proxies and stock powers and/or assignments, as applicable, duly executed in blank.  A 956 Impact will be deemed to exist to the extent the issuance of a guaranty by, grant of a Lien by, or pledge of greater than two-thirds of the voting Stock and Stock Equivalents of, a Foreign Subsidiary, would result in material incremental income tax liability as a result of the application of Section 956 of the Code, taking into account actual anticipated repatriation of funds, foreign tax credits and other relevant factors.  Notwithstanding the foregoing, upon its formation and for so long as the Primrose Health Joint Venture is not a Wholly Owned Subsidiary of the Borrower, the Primrose Health Joint Venture shall not be required to guaranty the Obligations and shall not be required to grant to Agent, for the benefit of the Secured Parties, a security interest in its Property, but the Credit Parties shall be required to pledge all of the Stock and Stock Equivalents of the Primrose Health Joint Venture owned by any Credit Party (and the organizational documents of the Primrose Health Joint Venture shall expressly permit such pledge and the exercise of remedies by Agent in respect thereof on terms acceptable to Agent in its sole discretion).

 

(c)            In the event any Credit Party or any Domestic Subsidiary (other than Domestic Subsidiaries owned indirectly through a Foreign Subsidiary) or, to the extent no 956 Impact exists, any Foreign Subsidiary, or any Domestic Subsidiary owned indirectly through a Foreign Subsidiary, of any Credit Party acquires any Real Estate with a fair market value in excess of $1,000,000, simultaneously with such acquisition, such Person shall execute and/or deliver, or cause to be executed and/or delivered, to Agent, (w) within forty-five (45) days of receipt of notice from Agent that Real Estate is located in a Special Flood Hazard Area, Federal Flood Insurance as required by Section 4.6(a) , (x) a fully executed Mortgage, in form and substance reasonably satisfactory to Agent together with an A.L.T.A. lender’s title insurance policy issued by a title insurer reasonably satisfactory to Agent, in form and substance and in an amount reasonably satisfactory to Agent insuring that the Mortgage is a valid and enforceable first priority Lien on the respective Property, free and clear of all defects, encumbrances and Liens other than Permitted Liens, (y) then current A.L.T.A. surveys, certified to Agent by a licensed surveyor sufficient to allow the issuer of the lender’s title insurance policy to issue such policy without a survey exception and (z) an environmental site assessment prepared by a qualified firm reasonably acceptable to Agent, in form and substance satisfactory to Agent.  In addition to the obligations set forth in Sections 4.6(a)  and 4.13(b)(w) , within forty-five days after written notice from Agent to Credit Parties that any Real Estate is located in a Special Flood Hazard Area, Credit Parties shall satisfy the Federal Flood Insurance requirements of Section 4.6(a) .

 

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(d)            If the Borrower (or a direct or indirect holding company of the Borrower) has not consummated a Qualified IPO on or before December 31, 2015, then the Borrower shall cause the Permitted Holders to pledge on or before such date the Stock and Stock Equivalents of the Borrower owned legally or beneficially by the Permitted Holders to Agent, for the benefit of the Secured Parties, to secure the Obligations.  In addition, if in connection with a Qualified IPO (or otherwise), any parent company of the Borrower is organized, then the Borrower shall cause such parent company promptly to pledge the Stock and Stock Equivalents of the Borrower owned by such parent company to Agent, for the benefit of the Secured Parties, to secure the Obligations.  In connection with the foregoing pledged, the Permitted Holders or the parent company, as the case may be shall deliver, or cause to be delivered, to Agent, irrevocable proxies and stock powers and/or assignments, as applicable, duly executed in blank.

 

4.14         Environmental Matters .

 

(a)            Each Credit Party shall, and shall cause each of its Subsidiaries to, comply with, and maintain its Real Estate, whether owned, leased, subleased or otherwise operated or occupied, in compliance with, all applicable Environmental Laws (including by implementing any Remedial Action necessary to achieve such compliance) or that is required by orders and directives of any Governmental Authority except where the failure to comply would not reasonably be expected to, individually or in the aggregate, result in a Material Environmental Liability.  Without limiting the foregoing, if an Event of Default is continuing or if Agent at any time has a reasonable basis to believe that there exist violations of Environmental Laws by any Credit Party or any Subsidiary of any Credit Party or that there exist any Environmental Liabilities, then each Credit Party shall, promptly upon receipt of request from Agent, cause the performance of, and allow Agent and its Related Persons access to such Real Estate for the purpose of conducting, such environmental audits and assessments, including subsurface sampling of soil and groundwater, and cause the preparation of such reports, in each case as Agent may from time to time reasonably request.  Such audits, assessments and reports, to the extent not conducted by Agent or any of its Related Persons, shall be conducted and prepared by reputable environmental consulting firms reasonably acceptable to Agent and shall be in form and substance reasonably acceptable to Agent.

 

(b)            Borrower and each applicable Credit Party will comply in all material respects with the Headquarters Due Care Plan and Section 20107a of Part 201 of the Natural Resources and Environmental Protection Act, 1994 PA 451, as amended, and any associated regulations and guidance.

 

4.15         Post-Closing Obligations

 

As a material inducement to Agent and Lenders entering into and performing their respective obligations under this Agreement, Borrower hereby agrees to satisfy the following conditions:

 

(a)            Consummation of MedPro Acquisition . Within five Business Days of the Closing Date, the MedPro Acquisition shall be consummated in accordance with the terms of the MedPro Acquisition Agreement and applicable law and the MedPro Acquisition shall be in full force and effect; and

 

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(b)            Other Post-Closing Items :  Borrower shall complete each item set forth on Schedule 4.15 hereto on or prior to the date indicated with respect thereto on Schedule 4.15.

 

ARTICLE V.
NEGATIVE COVENANTS

 

Each Credit Party covenants and agrees that, so long as any Lender shall have any Commitment hereunder, or any Loan or other Obligation (other than contingent indemnification Obligations to the extent no claim giving rise thereto has been asserted) shall remain unpaid or unsatisfied:

 

5.1           Limitation on Liens .

 

No Credit Party shall, and no Credit Party shall suffer or permit any of its Subsidiaries to, directly or indirectly, make, create, incur, assume or suffer to exist any Lien upon or with respect to any part of its Property, whether now owned or hereafter acquired, other than the following (“ Permitted Liens ”):

 

(a)            any Lien existing on the Property of a Credit Party or a Subsidiary of a Credit Party on the Closing Date and set forth in Schedule 5.1 securing Indebtedness outstanding on such date and permitted by Section 5.5(c) , including replacement Liens on the Property currently subject to such Liens securing Indebtedness permitted by Section 5.5(c) ;

 

(b)            any Lien created under any Loan Document;

 

(c)            Liens for taxes, fees, assessments or other governmental charges (i) which are not past due or remain payable without penalty, or (ii) the non payment of which is permitted by Section 4. 7;

 

(d)            carriers’, warehousemen’s, mechanics’, landlords’, materialmen’s, repairmen’s or other similar Liens arising in the Ordinary Course of Business which are not past due or remain payable without penalty or which are being contested in good faith and by appropriate proceedings diligently prosecuted, which proceedings have the effect of preventing the forfeiture or sale of the Property subject thereto and for which adequate reserves in accordance with GAAP are being maintained;

 

(e)            Liens (other than any Lien imposed by ERISA) consisting of pledges or deposits required in the Ordinary Course of Business in connection with workers’ compensation, unemployment insurance and other social security legislation or to secure the performance of tenders, statutory obligations, surety, stay, customs and appeals bonds, bids, leases, governmental contract, trade contracts, performance and return of money bonds and other similar obligations (exclusive of obligations for the payment of borrowed money) or to secure liability to insurance carriers;

 

(f)             Liens consisting of judgment or judicial attachment liens (other than for payment of taxes, assessments or other governmental charges), provided that the enforcement of such Liens is effectively stayed and all such Liens secure claims in the aggregate at any time outstanding for the Credit Parties and their Subsidiaries not exceeding $500,000;

 

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(g)            easements, rights of way, zoning and other restrictions, minor defects or other irregularities in title, and other similar encumbrances incurred in the Ordinary Course of Business which, either individually or in the aggregate, are not substantial in amount, and which do not in any case materially detract from the value of the Property subject thereto or interfere in any material respect with the ordinary conduct of the businesses of any Credit Party or any Subsidiary of any Credit Party;

 

(h)            Liens on any Property acquired or held by any Credit Party or any Subsidiary of any Credit Party securing Indebtedness incurred or assumed for the purpose of financing (or refinancing) all or any part of the cost of acquiring such Property and permitted under Section 5.5(d) ; provided that (i) any such Lien attaches to such Property concurrently with or within twenty (20) days after the acquisition thereof, (ii) such Lien attaches solely to the Property so acquired in such transaction and the proceeds thereof, and (iii) the principal amount of the debt secured thereby does not exceed 100% of the cost of such Property;

 

(i)             Liens securing Capital Lease Obligations permitted under Section 5.5(d) ;

 

(j)             any interest or title of a lessor or sublessor under any lease permitted by this Agreement;

 

(k)            Liens arising from the filing of precautionary uniform commercial code financing statements with respect to any lease permitted by this Agreement;

 

(l)             non-exclusive licenses and sublicenses granted by a Credit Party and leases or subleases (by a Credit Party as lessor or sublessor) to third parties in the Ordinary Course of Business not interfering with the business of the Credit Parties or any of their Subsidiaries;

 

(m)           Liens in favor of collecting banks arising by operation of law under Section 4-210 of the Uniform Commercial Code or, with respect to collecting banks located in the State of New York, under 4-208 of the Uniform Commercial Code;

 

(n)            Liens (including the right of set-off) in favor of a bank or other depository institution arising as a matter of law encumbering deposits;

 

(o)            Liens in favor of customs and revenue authorities arising as a matter of law which secure payment of customs duties in connection with the importation of goods in the Ordinary Course of Business;

 

(p)            Liens on redeemed Stock of the Borrower arising under the Redemption Documents; and

 

(q)            Liens in favor of AmerisourceBergen on the AmeriSourceBergen Inventory Collateral.

 

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5.2           Disposition of Assets .

 

No Credit Party shall, and no Credit Party shall suffer or permit any of its Subsidiaries to, directly or indirectly, sell, assign, lease, convey, transfer or otherwise dispose of (whether in one or a series of transactions) any Property (including the Stock of any Subsidiary of any Credit Party, whether in a public or a private offering or otherwise, and accounts and notes receivable, with or without recourse) or enter into any agreement to do any of the foregoing, except:

 

(a)            dispositions to any Person other than an Affiliate of a Credit Party of (i) inventory, or (ii) worn out or surplus equipment having a fair market value not exceeding $750,000 in the aggregate in any Fiscal Year, in each case in the Ordinary Course of Business;

 

(b)            dispositions (other than of (i) the Stock of any Subsidiary of any Credit Party or (ii) any Accounts of any Credit Party) not otherwise permitted hereunder which are made for fair market value; provided , that (i) at the time of any disposition, no Event of Default shall exist or shall result from such disposition, (ii) not less than 75% of the aggregate sales price from such disposition shall be paid in cash, (iii) the aggregate fair market value of all assets so sold by the Credit Parties and their Subsidiaries, together, shall not exceed in any Fiscal Year $500,000 and (iv) after giving effect to such disposition, the Credit Parties are in compliance on a pro forma basis with the covenant set forth in Article VI , recomputed for the most recent fiscal month for which financial statements have been delivered;

 

(c)            (i) dispositions of Cash Equivalents in the Ordinary Course of Business made to a Person that is not an Affiliate of any Credit Party and (ii) conversions of Cash Equivalents into cash or other Cash Equivalents;

 

(d)            transactions permitted under Section 5.1(l) ; and

 

(e)            the Borrower may sell its Investment in Ageology, LLC to the Permitted Holders so long as (i) no Default or Event of Default shall then exist or would exist after giving effect thereto, (ii) 100% of the purchase price is paid in cash at the closing of such sale, (iii) all proceeds of the sale are applied to repay the Loans, and (iv) the purchase price is equal to the greater of (x) the purchase price paid by the Borrower for such Investment (including any additional investments made pursuant to Section 5.4(h)) and (y) fair market value for such Investment as reasonably determined by the Board of Directors of the Borrower.

 

5.3           Consolidations and Mergers .

 

No Credit Party shall, and no Credit Party shall suffer or permit any of its Subsidiaries to, (a) merge, consolidate with or into, or convey, transfer, lease or otherwise dispose of (whether in one transaction or in a series of transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any Person, except upon not less than five (5) Business Days prior written notice to Agent, (a) any Subsidiary of the Borrower may merge with, or dissolve or liquidate into, the Borrower or a Wholly-Owned Subsidiary of the Borrower which is a Domestic Subsidiary, provided that the Borrower or such Wholly-Owned Subsidiary which is a Domestic Subsidiary shall be the continuing or surviving entity and all actions required to maintain perfected Liens on the Stock of the surviving entity and other Collateral in favor of Agent shall have been completed and (b) any Foreign Subsidiary may merge with or

 

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dissolve or liquidate into another Foreign Subsidiary provided if a First Tier Foreign Subsidiary is a constituent entity in such merger, dissolution or liquidation, such First Tier Foreign Subsidiary shall be the continuing or surviving entity.

 

5.4           Acquisitions; Loans and Investments .

 

No Credit Party shall, and no Credit Party shall suffer or permit any of its Subsidiaries to, (i) purchase or acquire, or make any commitment to purchase or acquire any Stock or Stock Equivalents, or any obligations or other securities of, or any interest in, any Person, including the establishment or creation of a Subsidiary, or (ii) make or commit to make any Acquisitions, or any other acquisition of all or substantially all of the assets of another Person, or of any business or division of any Person, including without limitation, by way of merger, consolidation or other combination or (iii) make or purchase, or commit to make or purchase, any advance, loan, extension of credit or capital contribution to or any other investment in, any Person including the Borrower, any Affiliate of the Borrower or any Subsidiary of the Borrower (the items described in clauses (i) , (ii)  and (iii)  above are referred to as “ Investments ”), except for:

 

(a)            Investments in cash and Cash Equivalents;

 

(b)            Investments consisting of (i) extensions of credit or capital contributions by any Credit Party to or in any other then existing Credit Party, (ii) extensions of credit or capital contributions by the Borrower or any other Credit Party to or in any then existing Foreign Subsidiaries of a Borrower not to exceed $500,000 in the aggregate at any time outstanding for all such extensions of credit and capital contributions; provided , that (A) if any Credit Party executes and delivers to the Borrower a note (collectively, the “ Intercompany Notes ”) to evidence any Investments described in the foregoing clauses (i)  and (ii) , that Intercompany Note shall be pledged and delivered to Agent pursuant to the Guaranty and Security Agreement as additional collateral security for the Obligations; (B) the Borrower shall accurately record all intercompany transactions on its books and records; and (C) at the time any such intercompany loan or advance is made by the Borrower to any other Credit Party and after giving effect thereto, the Borrower shall be Solvent; (iii) extensions of credit or capital contributions by a Foreign Subsidiary of a Borrower to or in another then existing Foreign Subsidiary of a Borrower;

 

(c)            Investments received as the non-cash portion of consideration received in connection with transactions permitted pursuant to Section 5.2(b) ;

 

(d)            the Borrower’s Investment of no more than $5,000,000 in the Primrose Health Joint Venture;

 

(e)            Investments acquired in connection with the settlement of delinquent Accounts in the Ordinary Course of Business or in connection with the bankruptcy or reorganization of suppliers or customers;

 

(f)             Investments existing on the Closing Date and set forth in Schedule 5.4 ;

 

(g)            loans or advances to employees permitted under Section 5.6 ;

 

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(h)            additional Investments by the Borrower in Ageology, LLC in an aggregate amount of up to $2,500,000 so long as at the time of making any such Investment no Default or Event of Default shall then exist or would exist after giving effect thereto; provided that, if applicable, such amount shall be reduced by an amount equal to the original cost to the Borrower of that portion of the Investment sold by the Borrower pursuant to Section 5.2(f); and

 

(i)             Permitted Acquisitions.

 

5.5           Limitation on Indebtedness .

 

No Credit Party shall, and no Credit Party shall suffer or permit any of its Subsidiaries to, create, incur, assume, permit to exist, or otherwise become or remain directly or indirectly liable with respect to, any Indebtedness, except:

 

(a)            the Obligations;

 

(b)            Indebtedness consisting of Contingent Obligations described in clause (j)  of the definition of Indebtedness and permitted pursuant to Section 5.9 ;

 

(c)            Indebtedness existing on the Closing Date and set forth in Schedule 5.5 including Permitted Refinancings thereof;

 

(d)            (i) Indebtedness to ASD Healthcare, Inc. not to exceed $7,000,000 in the aggregate at any time outstanding secured solely by Liens permitted by Section 5.1(h)  and (ii) other Indebtedness not to exceed $6,000,000 in the aggregate at any time outstanding, consisting of Capital Lease Obligations or secured solely by Liens permitted by Section 5.1(h)  and Permitted Refinancings thereof;

 

(e)            unsecured intercompany Indebtedness permitted pursuant to Section 5.4(b) ;

 

(f)             Subordinated Indebtedness not to exceed $40,000,000 in the aggregate at any time outstanding evidenced by the Subordinated Indebtedness Documents;

 

(g)            the AmerisourceBergen Indebtedness;

 

(h)            the AHF Earnout in an aggregate amount not to exceed $2,000,000;

 

(i)             the MedPro Earnout in an aggregate amount not to exceed $11,500,000; and

 

(j)             other unsecured Indebtedness owing to Persons that are not Affiliates of the Credit Parties not exceeding $1,000,000 in the aggregate at any time outstanding.

 

5.6           Employee Loans and Transactions with Affiliates .

 

No Credit Party shall, and no Credit Party shall suffer or permit any of its Subsidiaries to, enter into any transaction with any Affiliate of the Borrower or of any such Subsidiary, except:

 

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(a)            as expressly permitted by this Agreement;

 

(b)            in the Ordinary Course of Business and pursuant to the reasonable requirements of the business of such Credit Party or such Subsidiary upon fair and reasonable terms no less favorable to such Credit Party or such Subsidiary than would be obtained in a comparable arm’s length transaction with a Person not an Affiliate of the Borrower or such Subsidiary and which are disclosed in writing to Agent; and

 

(c)            loans or advances to employees of Credit Parties not to exceed $500,000 in the aggregate outstanding at any time.

 

All such transactions under clause (b) above existing as of the Closing Date are described in Schedule 5.6 .

 

5.7           Compensation .

 

No Credit Party shall, and no Credit Party shall permit any of its Subsidiaries to, pay any management, consulting or similar fees to any Affiliate of any Credit Party or to any officer, director or employee of any Credit Party or any Affiliate of any Credit Party except:

 

(a)            payment of reasonable compensation to officers and employees for actual services rendered to the Credit Parties and their Subsidiaries in the Ordinary Course of Business; and

 

(b)            payment of directors’ fees and reimbursement of actual out-of-pocket expenses incurred in connection with attending board of director meetings not to exceed in the aggregate, with respect to all such items, $500,000 in any Fiscal Year of the Borrower.

 

5.8           Margin Stock; Use of Proceeds .

 

No Credit Party shall, and no Credit Party shall suffer or permit any of its Subsidiaries to, use any portion of the Loan proceeds, directly or indirectly, to purchase or carry Margin Stock or repay or otherwise refinance Indebtedness of any Credit Party or others incurred to purchase or carry Margin Stock, or otherwise in any manner which is in contravention of any Requirement of Law or in violation of this Agreement.  In no event shall any Credit Party use any portion of the Loan proceeds to prepay any portion of the Subordinated Indebtedness.

 

5.9           Contingent Obligations .

 

No Credit Party shall, and no Credit Party shall suffer or permit any of its Subsidiaries to, create, incur, assume or suffer to exist any Contingent Obligations except in respect of the Obligations and except:

 

(a)            endorsements for collection or deposit in the Ordinary Course of Business;

 

(b)            Rate Contracts entered into in the Ordinary Course of Business for bona fide hedging purposes and not for speculation with Agent’s prior written consent;

 

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(c)            Contingent Obligations of the Credit Parties and their Subsidiaries existing as of the Closing Date and listed in Schedule 5.9 , including extension and renewals thereof which do not increase the amount of such Contingent Obligations or impose materially more restrictive or adverse terms on the Credit Parties or their Subsidiaries as compared to the terms of the Contingent Obligation being renewed or extended;

 

(d)            Contingent Obligations arising under indemnity agreements to title insurers to cause such title insurers to issue to Agent title insurance policies;

 

(e)            Contingent Obligations arising with respect to customary indemnification obligations in favor of (i) sellers in connection with Acquisitions permitted hereunder and (ii) purchasers in connection with dispositions permitted under Section 5.2(b) ;

 

(f)             Contingent Obligations arising under Letters of Credit;

 

(g)            Contingent Obligations arising under guaranties made in the Ordinary Course of Business of obligations of any Credit Party, which obligations are otherwise permitted hereunder; provided that if such obligation is subordinated to the Obligations, such guaranty shall be subordinated to the same extent; and

 

(h)            other Contingent Obligations not exceeding $250,000 in the aggregate at any time outstanding.

 

5.10         Compliance with ERISA .

 

No ERISA Affiliate shall cause or suffer to exist (a) any event that could result in the imposition of a Lien on any asset of a Credit Party or a Subsidiary of a Credit Party with respect to any Title IV Plan or Multiemployer Plan or (b) any other ERISA Event, that would, in the aggregate, result in Liabilities in excess of $250,000.  No Credit Party shall cause or suffer to exist any event that could result in the imposition of a Lien with respect to any Benefit Plan.

 

5.11         Restricted Payments .

 

No Credit Party shall, and no Credit Party shall suffer or permit any of its Subsidiaries to, (i) declare or make any dividend payment or other distribution of assets, properties, cash, rights, obligations or securities on account of any Stock or Stock Equivalent, (ii) purchase, redeem or otherwise acquire for value any Stock or Stock Equivalent now or hereafter outstanding or (iii) make any payment or prepayment of principal of, premium, if any, interest, fees, redemption, exchange, purchase, retirement, defeasance, sinking fund or similar payment with respect to, Subordinated Indebtedness (the items described in clauses (i) , (ii)  and (iii)  above are referred to as “ Restricted Payments ”); except that any Wholly-Owned Subsidiary of the Borrower may declare and pay dividends to the Borrower or any Wholly-Owned Subsidiary of the Borrower, and except that:

 

(a)            the Borrower may make Restricted Payments provided all of the following conditions are satisfied:

 

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(i)             no Default or Event of Default has occurred and is continuing or would arise as a result of such Restricted Payment;

 

(ii)            after giving effect to such Restricted Payment, the Credit Parties are in compliance on a pro forma basis with the covenant set forth in Article VI , recomputed for the most recent fiscal month for which financial statements have been delivered;

 

(iii)           the aggregate Restricted Payments permitted in any Fiscal Year of the Borrower shall not exceed the lesser of (x) fifty percent (50%) of Excess Cash Flow for the immediately preceding Fiscal Year and (y) $15,000,000 ;

 

(iv)           for the most recent fiscal month for which financial statements have been delivered, average daily Availability was not less than $20,000,000; and

 

(v)            after giving effect to such Restricted Payment, Availability is not less than $20,000,000;

 

provided , however , that no later than five (5) Business Days prior to making any Restricted Payment, the Borrower shall have delivered to Agent a certificate duly executed and completed by a financial officer of the Borrower stating the amount of the Restricted Payment and containing a schedule, in reasonable detail, setting forth the calculation demonstrating compliance with this Section 5.11(b) .

 

(b)            the Credit Parties may pay, as and when due and payable, regularly scheduled payments of principal and interest at the non-default rate on the Subordinated Indebtedness evidenced by the Subordinated Indebtedness Documents, to the extent permitted under the Subordination Agreement; provided , that no Default or Event of Default has occurred and is continuing or would arise as a result of such payment;

 

(c)            the Borrower may make one or more Restricted Payments constituting the Janus Series A Preferred Proceeds Distributions, on or before March 31, 2015; provided, that (w) no more than $29,000,000 in the aggregate of such Restricted Payments may be made after April 30, 2014, (x) no Default or Event of Default has occurred and is continuing or would arise as a result of such Restricted Payment, (y) after giving effect to such Restricted Payment, Availability is not less than $15,000,000, and (z) on the Business Day prior to each such Restricted Payment, the Borrower shall deliver to the Agent a certificate certifying that the conditions set forth in this Section 5.11(f) shall have been satisfied after giving effect to such Restricted Payment, setting forth the amount of the Restricted Payment to be made on such next Business Day, the aggregate amount of Janus Series A Preferred Proceeds Distributions made since the Seventh Amendment Effective Date after giving effect to such Restricted Payment and attaching an updated Schedule 3.19;

 

(d)            the Series A Preferred Stock may be converted into common stock of the Borrower; and

 

(e)            the Borrower may make a special distribution (i) to those Persons who were shareholders of the Borrower during 2013 in an amount sufficient to pay the federal income taxes owed by them in respect of the federal taxable income of the Borrower allocable to them

 

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for 2013 (less any such amounts previously paid) and (ii) if the Borrower does not elect to revoke its election to be an S corporation as of the beginning of the Borrower’s current tax year under Section 1362(d)(1)(D)(i) of the Code, then to those Persons who were shareholders of the Company during 2014 prior to January 23, 2014, in an amount sufficient to pay the federal income taxes owed by them in respect of the federal taxable income of the Borrower allocable to them for the period from January 1, 2014 through January 23, 2014, taking into account any election under Section 1362(e)(3) of the Code to close the books of the Borrower as of January 23, 2014 (any such special distribution pursuant to this sentence, a “ Special Tax Distribution ”).

 

5.12         Change in Business .

 

No Credit Party shall, and no Credit Party shall permit any of its Subsidiaries to, engage in any line of business different from those lines of business carried on by it on the Closing Date.

 

5.13         Change in Structure .

 

Except as expressly permitted under Section 5.3 , no Credit Party shall, and no Credit Party shall permit any of its Subsidiaries to, make any material changes in its equity capital structure, issue any Stock or Stock Equivalents or amend any of its Organization Documents in any material respect and, in each case, in any respect adverse to Agent or Lenders.  For the avoidance of doubt, this Section 5.13 does not restrict the Borrower from issuing “phantom stock options” to its executives or other employees.  Notwithstanding the foregoing, (i) the Borrower may complete a Qualified IPO and the Borrower may issue its common stock after a Qualified IPO, (ii) in connection with a Qualified IPO, upon at least 30 days prior written notice, the Borrower may form a parent company on terms and documentation acceptable to Agent and Required Lenders, and (ii) the Series A Preferred Stock may be converted into common stock of the Borrower.

 

5.14         Changes in Accounting, Name or Jurisdiction of Organization .

 

No Credit Party shall, and no Credit Party shall suffer or permit any of its Subsidiaries to, (i) make any significant change in accounting treatment or reporting practices, except as required by GAAP, (ii) change the Fiscal Year or method for determining Fiscal Quarters of any Credit Party or of any consolidated Subsidiary of any Credit Party, (iii) change its name as it appears in official filings in its jurisdiction of organization or (iv) change its jurisdiction of organization, in the case of clauses (iii)  and (iv) , without at least twenty (20) days’ prior written notice to Agent and the acknowledgement of Agent that all actions required by Agent, including those to continue the perfection of its Liens, have been completed.

 

5.15         Amendments to Related Agreements, Material Agreements and Subordinated Indebtedness .

 

(a)            No Credit Party shall, and no Credit Party shall permit any of its Subsidiaries to, amend, supplement, waive or otherwise modify any provision of, any Related Agreement (other than the Subordinated Indebtedness Documents), any Material Agreement in a manner adverse to Agent or Lenders or which would reasonably be expected to have a Material Adverse Effect.

 

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(b)            No Credit Party shall, and no Credit Party shall permit any of its Subsidiaries directly or indirectly to, change or amend the terms of any Subordinated Indebtedness Documents except to the extent permitted by the Subordination Agreements.

 

5.16         No Negative Pledges .

 

(a)            No Credit Party shall, and no Credit Party shall permit any of its Subsidiaries to, directly or indirectly, create or otherwise cause or suffer to exist or become effective any consensual restriction or encumbrance of any kind on the ability of any Credit Party or Subsidiary to pay dividends or make any other distribution on any of such Credit Party’s or Subsidiary’s Stock or Stock Equivalents or to pay fees, including management fees, or make other payments and distributions to the Borrower or any other Credit Party.  No Credit Party shall, and no Credit Party shall permit any of its Subsidiaries to, directly or indirectly, enter into, assume or become subject to any Contractual Obligation prohibiting or otherwise restricting the existence of any Lien upon any of its assets in favor of Agent, whether now owned or hereafter acquired except in connection with any document or instrument governing Liens permitted pursuant to Sections 5.1(h)  and 5.1(i)  provided that any such restriction contained therein relates only to the asset or assets subject to such permitted Liens.

 

(b)            No Credit Party shall issue any Stock or Stock Equivalents (i) if such issuance would result in an Event of Default under Section 7.1(k)  and (ii) unless, prior to a Qualified IPO, such Stock and Stock Equivalents are pledged to Agent, for the benefit of the Secured Parties, as security for the Obligations, on substantially the same terms and conditions as the Stock and Stock Equivalents of the Credit Parties owned by the Permitted Holders are pledged to Agent as of the Closing Date; provided , however , the Borrower may issue options to its employees so long as the condition in Section 5.16(b)(i)  is satisfied.

 

5.17         OFAC; Patriot Act .

 

No Credit Party shall, and no Credit Party shall permit any of its Subsidiaries to fail to comply with the laws, regulations and executive orders referred to in Sections 3.28 and 3.29 .

 

5.18         Sale-Leasebacks .

 

No Credit Party shall, and no Credit Party shall permit any of its Subsidiaries to, engage in a sale leaseback, synthetic lease or similar transaction involving any of its assets.

 

5.19         Hazardous Materials .

 

No Credit Party shall, and no Credit Party shall permit any of its Subsidiaries to, cause or suffer to exist any Release of any Hazardous Material at, to or from any Real Estate that would violate any Environmental Law, form the basis for any Environmental Liabilities or otherwise adversely affect the value or marketability of any Real Estate (whether or not owned by any Credit Party or any Subsidiary of any Credit Party).

 

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5.20                         Prepayments of Other Indebtedness .

 

No Credit Party shall, directly or indirectly, voluntarily purchase, redeem, defease or prepay any principal of, premium, if any, interest or other amount payable in respect of any Indebtedness prior to its scheduled maturity, other than (a) the Obligations, (b) Indebtedness secured by a Permitted Lien if the asset securing such Indebtedness has been sold or otherwise disposed of in a transaction permitted hereunder, (c) a Permitted Refinancing of Indebtedness permitted under Section 5.5(c) , (d)  or (h) , (d) prepayments of other Indebtedness (excluding Subordinated Indebtedness) so long as the amounts prepaid do not exceed $1,000,000 in the aggregate, and (e) prepayment of intercompany Indebtedness to Credit Parties.

 

ARTICLE VI.
FINANCIAL COVENANT

 

Each Credit Party covenants and agrees that, so long as any Lender shall have any Commitment hereunder, or any Loan or other Obligation (other than contingent indemnification Obligations to the extent no claim giving rise thereto has been asserted) shall remain unpaid or unsatisfied:

 

6.1                                Fixed Charge Coverage Ratio .

 

If average daily Availability for any fiscal month reaches or falls below $20,000,000, the Credit Parties shall not permit the Fixed Charge Coverage Ratio to be less than 1.10x for the trailing 12 month period ending on the last day of such fiscal month.  The “Fixed Charge Coverage Ratio” shall be calculated in the manner set forth in Exhibit 4.2(b) .

 

ARTICLE VII.
EVENTS OF DEFAULT

 

7.1                                Events of Default .

 

Any of the following shall constitute an “ Event of Default ”:

 

(a)                                  Non-Payment .  Any Credit Party fails (i) to pay when and as required to be paid herein, any amount of principal of, or interest on, any Loan, including after maturity of the Loans, or to pay any L/C Reimbursement Obligation or (ii) to pay within three (3) Business Days after the same shall become due, any fee or any other amount payable hereunder or pursuant to any other Loan Document;

 

(b)                                  Representation or Warranty .  (i) Any representation, warranty or certification by or on behalf of any Credit Party or any of its Subsidiaries made or deemed made herein, in any other Loan Document, or which is contained in any certificate, document or financial or other statement by any such Person, or their respective Responsible Officers, furnished at any time under this Agreement, or in or under any other Loan Document, shall prove to have been incorrect in any material respect (without duplication of other materiality qualifiers contained therein) on or as of the date made or deemed made or (ii) any information contained in any Borrowing Base Certificate is untrue or incorrect in any respect (other than (A) inadvertent, immaterial errors not exceeding $250,000 in the aggregate in any Borrowing Base Certificate,

 

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(B) errors understating the Borrowing Base and (C) errors occurring when Availability continues to exceed $20,000,000 after giving effect to the correction of such errors) ;

 

(c)                                   Specific Defaults .  Any Credit Party fails to perform or observe any term, covenant or agreement contained in any of Section 4.2(a) , 4.2(b) , 4.2(d) , 4.3(a)  or 9.10(d) , Section 4.1 , 4.6 , 4.9 , 4.10 , 4.11 or 4.15 or Article V or VI ;

 

(d)                                  Other Defaults .  Any Credit Party or Subsidiary of any Credit Party fails to perform or observe any other term, covenant or agreement contained in this Agreement or any other Loan Document, and such default shall continue unremedied for a period of fifteen (15) Business Day after the earlier to occur of (i) the date upon which a Responsible Officer of any Credit Party becomes aware of such default and (ii) the date upon which written notice thereof is given to the Borrower by Agent or Required Lenders;

 

(e)                                   Cross Default .  Any Credit Party or any Subsidiary of any Credit Party (i) fails to make any payment in respect of any Indebtedness (other than the Obligations) or Contingent Obligation (other than the Obligations) having an aggregate principal amount (including undrawn committed or available amounts and including amounts owing to all creditors under any combined or syndicated credit arrangement) of more than $2,000,000 when due (whether by scheduled maturity, required prepayment, acceleration, demand, or otherwise) and such failure continues after the applicable grace or notice period, if any, specified in the document relating thereto on the date of such failure; or (ii) fails to perform or observe any other condition or covenant, or any other event shall occur or condition exist, under any agreement or instrument relating to any such Indebtedness or Contingent Obligation (other than Contingent Obligations owing by one Credit Party with respect to the obligations of another Credit Party permitted hereunder or earnouts permitted hereunder), if the effect of such failure, event or condition is to cause, or to permit the holder or holders of such Indebtedness or beneficiary or beneficiaries of such Indebtedness (or a trustee or agent on behalf of such holder or holders or beneficiary or beneficiaries) to cause such Indebtedness to be declared to be due and payable prior to its stated maturity (without regard to any subordination terms with respect thereto), or such Contingent Obligation to become payable or cash collateral in respect thereof to be demanded;

 

(f)                                    Insolvency; Voluntary Proceedings .  The Borrower, individually, ceases or fails, or the Credit Parties and their Subsidiaries on a consolidated basis, cease or fail, to be Solvent, or any Credit Party or any Subsidiary of any Credit Party:  (i) generally fails to pay, or admits in writing its inability to pay, its debts as they become due, subject to applicable grace periods, if any, whether at stated maturity or otherwise; (ii) except as expressly permitted under Section 5.3 , voluntarily ceases to conduct its business in the ordinary course; (iii) commences any Insolvency Proceeding with respect to itself; or (iv) takes any action to effectuate or authorize any of the foregoing;

 

(g)                                   Involuntary Proceedings .  (i) Any involuntary Insolvency Proceeding is commenced or filed against any Credit Party or any Subsidiary of any Credit Party, or any writ, judgment, warrant of attachment, execution or similar process, is issued or levied against any such Person’s Properties with a value in excess of $500,000 individually or $1,000,000 in the aggregate and any such proceeding or petition shall not be dismissed, or such writ, judgment,

 

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warrant of attachment, execution or similar process shall not be released, vacated or fully bonded within sixty (60) days after commencement, filing or levy; (ii) any Credit Party or Subsidiary of any Credit Party admits the material allegations of a petition against it in any Insolvency Proceeding, or an order for relief (or similar order under non-U.S. law) is ordered in any Insolvency Proceeding; or (iii) any Credit Party or any Subsidiary of any Credit Party acquiesces in the appointment of a receiver, trustee, custodian, conservator, liquidator, mortgagee in possession (or agent therefor), or other similar Person for itself or a substantial portion of its Property or business;

 

(h)                                  Monetary Judgments .  One or more judgments, non-interlocutory orders, decrees or arbitration awards shall be entered against any one or more of the Credit Parties or any of their respective Subsidiaries involving in the aggregate a liability of $500,000 or more (excluding amounts covered by insurance to the extent the relevant independent third party insurer has not denied coverage therefor), and the same shall remain unsatisfied, unvacated and unstayed pending appeal for a period of thirty (30) days after the entry thereof;

 

(i)                                      Non Monetary Judgments .  One or more non-monetary judgments, orders or decrees shall be rendered against any one or more of the Credit Parties or any of their respective Subsidiaries which has or would reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect, and there shall be any period of fifteen (15) consecutive Business Days during which a stay of enforcement of such judgment or order, by reason of a pending appeal or otherwise, shall not be in effect;

 

(j)                                     Collateral .  Any material provision of any Loan Document shall for any reason cease to be valid and binding on or enforceable against any Credit Party or any Subsidiary of any Credit Party party thereto or any Credit Party or any Subsidiary of any Credit Party shall so state in writing or bring an action to limit its obligations or liabilities thereunder; or any Collateral Document shall for any reason (other than pursuant to the terms thereof) cease to create a valid security interest in the Collateral purported to be covered thereby or such security interest shall for any reason cease to be a perfected and first priority security interest subject only to Permitted Liens;

 

(k)                                  Change of Control .  There occurs any Change of Control.

 

(l)                                      Invalidity of Subordination Provisions .  The subordination provisions of the Subordination Agreement or the AmerisourceBergen Intercreditor Agreement or any agreement or instrument governing any Subordinated Indebtedness shall for any reason be revoked or invalidated, or otherwise cease to be in full force and effect, or any Person shall contest in any manner the validity or enforceability thereof or deny that it has any further liability or obligation thereunder, or the Obligations, for any reason shall not have the priority contemplated by this Agreement or such subordination provisions;

 

(m)                              Material Agreements .  Any default or breach by any Borrower occurs and is continuing under any Material Agreement or any Material Agreement is terminated for any reason;

 

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(n)                                  Damage; Casualty .  Any event occurs, whether or not insured or insurable, as a result of which revenue-producing activities cease or are substantially curtailed at facilities of the Credit Parties generating more than 25% of the Borrower’s consolidated revenue for the Fiscal Year preceding such event and such cessation or curtailment continues for more than thirty (30) days;

 

(o)                                  FDA .  (i) the FDA or any other Governmental Authority initiates enforcement action against any Credit Party or any of its Subsidiaries, or any suppliers that causes such Credit Party or Subsidiary to recall, withdraw, remove or discontinue marketing any of its Products which would reasonably be expected, in the aggregate, to have a Material Adverse Effect; (ii) the FDA or any other Governmental Authority issues a warning letter to any Credit Party or any of its Subsidiaries with respect to any Regulatory Matter which would reasonably be expected, in the aggregate, to have a Material Adverse Effect; (iii) any Credit Party or any of its Subsidiaries conducts a mandated or voluntary recall which could reasonably be expected to result in aggregate liability and expense to the Credit Parties and their Subsidiaries of $500,000 or more; or (iv) any Credit Party or any of its Subsidiaries enters into a settlement agreement with the FDA or any other Governmental Authority that results in aggregate liability as to any single or related series of transactions, incidents or conditions, of $500,000 or more, or that would reasonably be expected to have a Material Adverse Effect; or

 

(p)                                  Health Care .  There shall occur any revocation, suspension, termination, recession, non-renewal or forfeiture or any similar final administrative action with respect to one or more Health Care Permits, Third Party Payor Programs or Third Party Payor Authorizations, in each case of any Credit Party or any Subsidiary of any Credit Party which, in the aggregate, would not reasonably be expected to have a Material Adverse Effect.

 

7.2                                Remedies .

 

Upon the occurrence and during the continuance of any Event of Default, Agent may, and shall at the request of the Required Lenders:

 

(a)                                  declare all or any portion of the Commitment of each Lender to make Loans or of the L/C Issuer to Issue Letters of Credit to be suspended or terminated, whereupon such Commitments shall forthwith be suspended or terminated;

 

(b)                                  declare all or any portion of the unpaid principal amount of all outstanding Loans, all interest accrued and unpaid thereon, and all other amounts owing or payable hereunder or under any other Loan Document to be immediately due and payable; without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by each Credit Party; and/or

 

(c)                                   exercise on behalf of itself and the Lenders all rights and remedies available to it and the Lenders under the Loan Documents or applicable law;

 

provided , however , that upon the occurrence of any event specified in Section 7.1(f)  or 7.1(g)  (in the case of Section 7.1(g)(i)  upon the expiration of the sixty (60) day period mentioned therein), the obligation of each Lender to make Loans and the obligation of the L/C Issuer to Issue Letters of Credit shall automatically terminate and the unpaid principal amount of all outstanding Loans

 

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and all interest and other amounts as aforesaid shall automatically become due and payable without further act of Agent, any Lender or the L/C Issuer.

 

7.3                                Rights Not Exclusive .

 

The rights provided for in this Agreement and the other Loan Documents are cumulative and are not exclusive of any other rights, powers, privileges or remedies provided by law or in equity, or under any other instrument, document or agreement now existing or hereafter arising.

 

7.4                                Cash Collateral for Letters of Credit .

 

If an Event of Default has occurred and is continuing, this Agreement (or the Revolving Loan Commitment) shall be terminated for any reason or if otherwise required by the terms hereof, Agent may, and upon request of Required Lenders, shall, demand (which demand shall be deemed to have been delivered automatically upon any acceleration of the Loans and other obligations hereunder pursuant to Section 7.2 ), and the Borrower shall thereupon deliver to Agent, to be held for the benefit of the L/C Issuer, Agent and the Lenders entitled thereto, an amount of cash equal to 105% of the amount of L/C Reimbursement Obligations as additional collateral security for Obligations.  Agent may at any time apply any or all of such cash and cash collateral to the payment of any or all of the Credit Parties’ Obligations.  The remaining balance of the cash collateral will be returned to the Borrower when all Letters of Credit have been terminated or discharged, all Commitments have been terminated and all Obligations have been paid in full in cash.

 

ARTICLE VIII.
THE AGENT

 

8.1                                Appointment and Duties .

 

(a)                                  Appointment of Agent .  Each Lender and each L/C Issuer hereby appoints GE Capital (together with any successor Agent pursuant to Section 8.9 ) as Agent hereunder and authorizes Agent to (i) execute and deliver the Loan Documents and accept delivery thereof on its behalf from any Credit Party, (ii) take such action on its behalf and to exercise all rights, powers and remedies and perform the duties as are expressly delegated to Agent under such Loan Documents and (iii) exercise such powers as are incidental thereto.

 

(b)                                  Duties as Collateral and Disbursing Agent .  Without limiting the generality of Section8.1(a) , Agent shall have the sole and exclusive right and authority (to the exclusion of the Lenders and L/C Issuers), and is hereby authorized, to (i) act as the disbursing and collecting agent for the Lenders and the L/C Issuers with respect to all payments and collections arising in connection with the Loan Documents (including in any proceeding described in Section 7.1(g)  or any other bankruptcy, insolvency or similar proceeding), and each Person making any payment in connection with any Loan Document to any Secured Party is hereby authorized to make such payment to Agent, (ii) file and prove claims and file other documents necessary or desirable to allow the claims of the Secured Parties with respect to any Obligation in any proceeding described in Section 7.1(f) or (g)  or any other bankruptcy, insolvency or similar proceeding (but not to vote, consent or otherwise act on behalf of such Person), (iii) act as collateral agent for each Secured Party for purposes of the perfection of all

 

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Liens created by such agreements and all other purposes stated therein, (iv) manage, supervise and otherwise deal with the Collateral, (v) take such other action as is necessary or desirable to maintain the perfection and priority of the Liens created or purported to be created by the Loan Documents, (vi) except as may be otherwise specified in any Loan Document, exercise all remedies given to Agent and the other Secured Parties with respect to the Collateral, whether under the Loan Documents, applicable Requirements of Law or otherwise and (vii) execute any amendment, consent or waiver under the Loan Documents on behalf of any Lender that has consented in writing to such amendment, consent or waiver; provided , however , that Agent hereby appoints, authorizes and directs each Lender and L/C Issuer to act as collateral sub-agent for Agent, the Lenders and the L/C Issuers for purposes of the perfection of Liens with respect to any deposit account maintained by a Credit Party with, and cash and Cash Equivalents held by, such Lender or L/C Issuer, and may further authorize and direct the Lenders and the L/C Issuers to take further actions as collateral sub-agents for purposes of enforcing such Liens or otherwise to transfer the Collateral subject thereto to Agent, and each Lender and L/C Issuer hereby agrees to take such further actions to the extent, and only to the extent, so authorized and directed.

 

(c)                                   Limited Duties .  Under the Loan Documents, Agent (i) is acting solely on behalf of the Secured Parties (except to the limited extent provided in Section 1.4(b)  with respect to the Register), with duties that are entirely administrative in nature, notwithstanding the use of the defined term “Agent”, the terms “agent”, “Agent” and “collateral agent” and similar terms in any Loan Document to refer to Agent, which terms are used for title purposes only, (ii) is not assuming any obligation under any Loan Document other than as expressly set forth therein or any role as agent, fiduciary or trustee of or for any Lender, L/C Issuer or any other Person and (iii) shall have no implied functions, responsibilities, duties, obligations or other liabilities under any Loan Document, and each Secured Party, by accepting the benefits of the Loan Documents, hereby waives and agrees not to assert any claim against Agent based on the roles, duties and legal relationships expressly disclaimed in clauses (i)  through (iii)  above.

 

8.2                                Binding Effect .

 

Each Secured Party, by accepting the benefits of the Loan Documents, agrees that (i) any action taken by Agent or the Required Lenders (or, if expressly required hereby, a greater proportion of the Lenders) in accordance with the provisions of the Loan Documents, (ii) any action taken by Agent in reliance upon the instructions of Required Lenders (or, where so required, such greater proportion) and (iii) the exercise by Agent or the Required Lenders (or, where so required, such greater proportion) of the powers set forth herein or therein, together with such other powers as are incidental thereto, shall be authorized and binding upon all of the Secured Parties.

 

8.3                                Use of Discretion .

 

(a)                                  Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated hereby or by the other Loan Documents that Agent is required to exercise as directed in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be expressly provided for herein or in the other Loan Documents); provided , that Agent shall not be required

 

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to take any action that, in its opinion or the opinion of its counsel, may expose Agent to liability or that is contrary to any Loan Document or applicable Requirement of Law; and

 

(b)                                  Agent shall not, except as expressly set forth herein and in the other Loan Documents, have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to any Credit Party or its Affiliates that is communicated to or obtained by Agent or any of its Affiliates in any capacity; and

 

(c)                                   Notwithstanding anything to the contrary contained herein or in any other Loan Document, the authority to enforce rights and remedies hereunder and under the other Loan Documents against the Credit Parties or any of them shall be vested exclusively in, and all actions and proceedings at law in connection with such enforcement shall be instituted and maintained exclusively by, Agent in accordance with the Loan Documents for the benefit of all the Lenders and the L/C Issuer; provided that the foregoing shall not prohibit (i) Agent from exercising on its own behalf the rights and remedies that inure to its benefit (solely in its capacity as Agent) hereunder and under the other Loan Documents, (ii) each of the L/C Issuer and the Swingline Lender from exercising the rights and remedies that inure to its benefit (solely in its capacity as L/C Issuer or Swingline Lender, as the case may be) hereunder and under the other Loan Documents, (iii) any Lender from exercising setoff rights in accordance with Section 9.11 or (iv) any Lender from filing proofs of claim or appearing and filing pleadings on its own behalf during the pendency of a proceeding relative to any Credit Party under any bankruptcy or other debtor relief law; and provided further that if at any time there is no Person acting as Agent hereunder and under the other Loan Documents, then (A) the Required Lenders shall have the rights otherwise ascribed to Agent pursuant to Section 7.2 and (B) in addition to the matters set forth in clauses (ii) , (iii)  and (iv)  of the preceding proviso and subject to Section 9.11 , any Lender may, with the consent of the Required Lenders, enforce any rights and remedies available to it and as authorized by the Required Lenders.

 

8.4                                Delegation of Rights and Duties .

 

Agent may, upon any term or condition it specifies, delegate or exercise any of its rights, powers and remedies under, and delegate or perform any of its duties or any other action with respect to, any Loan Document by or through any trustee, co-agent, employee, attorney-in-fact and any other Person (including any Secured Party).  Any such Person shall benefit from this Article VIII to the extent provided by Agent.

 

8.5                                Reliance and Liability .

 

(a)                                  Agent may, without incurring any liability hereunder, (i) treat the payee of any Note as its holder until such Note has been assigned in accordance with Section 9.9 , (ii) rely on the Register to the extent set forth in Section 1.4 , (iii) consult with any of its Related Persons and, whether or not selected by it, any other advisors, accountants and other experts (including advisors to, and accountants and experts engaged by, any Credit Party) and (iv) rely and act upon any document and information (including those transmitted by Electronic Transmission) and any telephone message or conversation, in each case believed by it to be genuine and transmitted, signed or otherwise authenticated by the appropriate parties.

 

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(b)                                  None of Agent and its Related Persons shall be liable for any action taken or omitted to be taken by any of them under or in connection with any Loan Document, and each Secured Party, the Borrower and each other Credit Party hereby waive and shall not assert (and the Borrower shall cause each other Credit Party to waive and agree not to assert) any right, claim or cause of action based thereon, except to the extent of liabilities resulting primarily from the gross negligence or willful misconduct of Agent or, as the case may be, such Related Person (each as determined in a final, non-appealable judgment by a court of competent jurisdiction) in connection with the duties expressly set forth herein.  Without limiting the foregoing, Agent:

 

(i)                                      shall not be responsible or otherwise incur liability for any action or omission taken in reliance upon the instructions of the Required Lenders or for the actions or omissions of any of its Related Persons selected with reasonable care (other than employees, officers and directors of Agent, when acting on behalf of Agent);

 

(ii)                                   shall not be responsible to any Lender, L/C Issuer or other Person for the due execution, legality, validity, enforceability, effectiveness, genuineness, sufficiency or value of, or the attachment, perfection or priority of any Lien created or purported to be created under or in connection with, any Loan Document;

 

(iii)                                makes no warranty or representation, and shall not be responsible, to any Lender, L/C Issuer or other Person for any statement, document, information, representation or warranty made or furnished by or on behalf of any Credit Party or any Related Person of any Credit Party in connection with any Loan Document or any transaction contemplated therein or any other document or information with respect to any Credit Party, whether or not transmitted or (except for documents expressly required under any Loan Document to be transmitted to the Lenders) omitted to be transmitted by Agent, including as to completeness, accuracy, scope or adequacy thereof, or for the scope, nature or results of any due diligence performed by Agent in connection with the Loan Documents; and

 

(iv)                               shall not have any duty to ascertain or to inquire as to the performance or observance of any provision of any Loan Document, whether any condition set forth in any Loan Document is satisfied or waived, as to the financial condition of any Credit Party or as to the existence or continuation or possible occurrence or continuation of any Default or Event of Default and shall not be deemed to have notice or knowledge of such occurrence or continuation unless it has received a notice from the Borrower, any Lender or L/C Issuer describing such Default or Event of Default clearly labeled “notice of default” (in which case Agent shall promptly give notice of such receipt to all Lenders);

 

and, for each of the items set forth in Section 8.5(b)(i)  through (iv) , each Lender, L/C Issuer and the Borrower hereby waives and agrees not to assert (and the Borrower shall cause each other Credit Party to waive and agree not to assert) any right, claim or cause of action it might have against Agent based thereon.

 

(c)                                   Each Lender and L/C Issuer (i) acknowledges that it has performed and will continue to perform its own diligence and has made and will continue to make its own independent investigation of the operations, financial conditions and affairs of the Credit Parties and (ii) agrees that is shall not rely on any audit or other report provided by Agent or its Related

 

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Persons (an “ Agent Report ”).  Each Lender and L/C Issuer further acknowledges that any Agent Report (i) is provided to the Lenders and L/C Issuers solely as a courtesy, without consideration, and based upon the understanding that such Lender or L/C Issuer will not rely on such Agent Report, (ii) was prepared by Agent or its Related Persons based upon information provided by the Credit Parties solely for Agent’s own internal use, (iii) may not be complete and may not reflect all information and findings obtained by Agent or its Related Persons regarding the operations and condition of the Credit Parties.  Neither Agent nor any of its Related Persons makes any representations or warranties of any kind with respect to (i) any existing or proposed financing, (ii) the accuracy or completeness of the information contained in any Agent Report or in any related documentation, (iii) the scope or adequacy of Agent’s and its Related Persons’ due diligence, or the presence or absence of any errors or omissions contained in any Agent Report or in any related documentation, and (iv) any work performed by Agent or Agent’s Related Persons in connection with or using any Agent Report or any related documentation.

 

(d)                                  Neither Agent nor any of its Related Persons shall have any duties or obligations in connection with or as a result of any Lender or L/C Issuer receiving a copy of any Agent Report. Without limiting the generality of the forgoing, neither Agent nor any of its Related Persons shall have any responsibility for the accuracy or completeness of any Agent Report, or the appropriateness of any Agent Report for any Lender’s or L/C Issuer’s purposes, and shall have no duty or responsibility to correct or update any Agent Report or disclose to any Lender or L/C Issuer any other information not embodied in any Agent Report, including any supplemental information obtained after the date of any Agent Report.  Each Lender and L/C Issuer releases, and agrees that it will not assert, any claim against Agent or its Related Persons that in any way relates to any Agent Report or arises out of any Lender or L/C Issuer having access to any Agent Report or any discussion of its contents, and agrees to indemnify and hold harmless Agent and its Related Persons from all claims, liabilities and expenses relating to a breach by any Lender or L/C Issuer arising out of such Lender’s or L/C Issuer’s access to any Agent Report or any discussion of its contents.

 

8.6                                Agent Individually .

 

Agent and its Affiliates may make loans and other extensions of credit to, acquire Stock and Stock Equivalents of, engage in any kind of business with, any Credit Party or Affiliate thereof as though it were not acting as Agent and may receive separate fees and other payments therefor.  To the extent Agent or any of its Affiliates makes any Loan or otherwise becomes a Lender hereunder, it shall have and may exercise the same rights and powers hereunder and shall be subject to the same obligations and liabilities as any other Lender and the terms “Lender”, “Required Lender” and any similar terms shall, except where otherwise expressly provided in any Loan Document, include, without limitation, Agent or such Affiliate, as the case may be, in its individual capacity as Lender or as one of the Required Lenders respectively.

 

8.7                                Lender Credit Decision .

 

(a)                                  Each Lender and each L/C Issuer acknowledges that it shall, independently and without reliance upon Agent, any Lender or L/C Issuer or any of their Related Persons or upon any document (including any offering and disclosure materials in connection with the syndication of the Loans) solely or in part because such document was transmitted by

 

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Agent or any of its Related Persons, conduct its own independent investigation of the financial condition and affairs of each Credit Party and make and continue to make its own credit decisions in connection with entering into, and taking or not taking any action under, any Loan Document or with respect to any transaction contemplated in any Loan Document, in each case based on such documents and information as it shall deem appropriate.  Except for documents expressly required by any Loan Document to be transmitted by Agent to the Lenders or L/C Issuers, Agent shall not have any duty or responsibility to provide any Lender or L/C Issuer with any credit or other information concerning the business, prospects, operations, Property, financial and other condition or creditworthiness of any Credit Party or any Affiliate of any Credit Party that may come in to the possession of Agent or any of its Related Persons.

 

(b)                                  If any Lender or L/C Issuer has elected to abstain from receiving MNPI concerning the Credit Parties or their Affiliates, such Lender or L/C Issuer acknowledges that, notwithstanding such election, Agent and/or the Credit Parties will, from time to time, make available syndicate-information (which may contain MNPI) as required by the terms of, or in the course of administering the Loans to the credit contact(s) identified for receipt of such information on the Lender’s administrative questionnaire who are able to receive and use all syndicate-level information (which may contain MNPI) in accordance with such Lender’s compliance policies and contractual obligations and applicable law, including federal and state securities laws; provided , that if such contact is not so identified in such questionnaire, the relevant Lender or L/C Issuer hereby agrees to promptly (and in any event within one (1) Business Day) provide such a contact to Agent and the Credit Parties upon request therefor by Agent or the Credit Parties. Notwithstanding such Lender’s or L/C Issuer’s election to abstain from receiving MNPI, such Lender or L/C Issuer acknowledges that if such Lender or L/C Issuer chooses to communicate with Agent, it assumes the risk of receiving MNPI concerning the Credit Parties or their Affiliates.

 

8.8                                Expenses; Indemnities; Withholding .

 

(a)                                  Each Lender agrees to reimburse Agent and each of its Related Persons (to the extent not reimbursed by any Credit Party) promptly upon demand, severally and ratably, for any costs and expenses (including fees, charges and disbursements of financial, legal and other advisors and Other Taxes paid in the name of, or on behalf of, any Credit Party) that may be incurred by Agent or any of its Related Persons in connection with the preparation, syndication, execution, delivery, administration, modification, consent, waiver or enforcement of, or the taking of any other action (whether through negotiations, through any work-out, bankruptcy, restructuring or other legal or other proceeding (including, without limitation, preparation for and/or response to any subpoena or request for document production relating thereto) or otherwise) in respect of, or legal advice with respect to its rights or responsibilities under, any Loan Document.

 

(b)                                  Each Lender further agrees to indemnify Agent and each of its Related Persons (to the extent not reimbursed by any Credit Party), severally and ratably, from and against Liabilities (including, to the extent not indemnified pursuant to Section 8.8(c) , taxes, interests and penalties imposed for not properly withholding or backup withholding on payments made to or for the account of any Lender) that may be imposed on, incurred by or asserted against Agent or any of its Related Persons in any matter relating to or arising out of, in

 

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connection with or as a result of any Loan Document, any Related Document or any other act, event or transaction related, contemplated in or attendant to any such document, or, in each case, any action taken or omitted to be taken by Agent or any of its Related Persons under or with respect to any of the foregoing; provided , however , that no Lender shall be liable to Agent or any of its Related Persons to the extent such liability has resulted primarily from the gross negligence or willful misconduct of Agent or, as the case may be, such Related Person, as determined by a court of competent jurisdiction in a final non-appealable judgment or order.

 

(c)                                   To the extent required by any applicable law, Agent may withhold from any payment to any Lender under a Loan Document an amount equal to any applicable withholding tax.  If the IRS or any other Governmental Authority asserts a claim that Agent did not properly withhold tax from amounts paid to or for the account of any Lender (because the appropriate certification form was not delivered, was not properly executed, or fails to establish an exemption from, or reduction of, withholding tax with respect to a particular type of payment, or because such Lender failed to notify Agent or any other Person of a change in circumstances which rendered the exemption from, or reduction of, withholding tax ineffective, or for any other reason), or Agent reasonably determines that it was required to withhold taxes from a prior payment but failed to do so, such Lender shall promptly indemnify Agent fully for all amounts paid, directly or indirectly, by such Agent as tax or otherwise, including penalties and interest, and together with all expenses incurred by Agent, including legal expenses, allocated internal costs and out-of-pocket expenses.  Agent may offset against any payment to any Lender under a Loan Document, any applicable withholding tax that was required to be withheld from any prior payment to such Lender but which was not so withheld, as well as any other amounts for which Agent is entitled to indemnification from such Lender under this Section 8.8(c) .

 

8.9                                Resignation of Agent or L/C Issuer .

 

(a)                                  Agent may resign at any time by delivering notice of such resignation to the Lenders and the Borrower, effective on the date set forth in such notice or, if no such date is set forth therein, upon the date such notice shall be effective in accordance with the terms of this Section 8.9 .  If Agent delivers any such notice, the Required Lenders shall have the right to appoint a successor Agent.  If, within 30 days after the retiring Agent having given notice of resignation, no successor Agent has been appointed by the Required Lenders that has accepted such appointment, then the retiring Agent may, on behalf of the Lenders, appoint a successor Agent from among the Lenders.  Each appointment under this Section 8.9(a)  shall be subject to the prior consent of the Borrower, which may not be unreasonably withheld but shall not be required during the continuance of an Event of Default.

 

(b)                                  Effective immediately upon its resignation, (i) the retiring Agent shall be discharged from its duties and obligations under the Loan Documents, (ii) the Lenders shall assume and perform all of the duties of Agent until a successor Agent shall have accepted a valid appointment hereunder, (iii) the retiring Agent and its Related Persons shall no longer have the benefit of any provision of any Loan Document other than with respect to any actions taken or omitted to be taken while such retiring Agent was, or because such Agent had been, validly acting as Agent under the Loan Documents and (iv) subject to its rights under Section 8.3 , the retiring Agent shall take such action as may be reasonably necessary to assign to the successor Agent its rights as Agent under the Loan Documents.  Effective immediately upon its acceptance

 

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of a valid appointment as Agent, a successor Agent shall succeed to, and become vested with, all the rights, powers, privileges and duties of the retiring Agent under the Loan Documents.

 

(c)                                   Any L/C Issuer may refuse to Issue a Letter of Credit in its sole discretion.

 

8.10                         Release of Collateral or Guarantors .

 

Each Lender and L/C Issuer hereby consents to the release and hereby directs Agent to release (or, in the case of Section 8.10(b)(ii) , release or subordinate) the following:

 

(a)                                  any Subsidiary of the Borrower from its guaranty of any Obligation if all of the Stock and Stock Equivalents of such Subsidiary owned by any Credit Party are sold or transferred in a transaction permitted under the Loan Documents (including pursuant to a waiver or consent);

 

(b)                                  any Lien held by Agent for the benefit of the Secured Parties against (i) any Collateral that is sold, transferred, conveyed or otherwise disposed of by a Credit Party in a transaction permitted by the Loan Documents (including pursuant to a waiver or consent), (ii) any Property subject to a Lien permitted hereunder in reliance upon Section 5.1(h)  or 5.1(i)  and (iii) all of the Collateral and all Credit Parties, upon (A) termination of the Revolving Loan Commitments, (B) payment and satisfaction in full of all Loans, all L/C Reimbursement Obligations and all other Obligations under the Loan Documents and all Obligations arising under Secured Rate Contracts, that Agent has theretofore been notified in writing by the holder of such Obligation are then due and payable, (C) deposit of cash collateral with respect to all contingent Obligations (or, as an alternative to cash collateral in the case of any Letter of Credit Obligation, receipt by Agent of a back-up letter of credit), in amounts and on terms and conditions and with parties satisfactory to Agent and each Indemnitee that is, or may be, owed such Obligations (excluding contingent Obligations (other than L/C Reimbursement Obligations) as to which no claim has been asserted) and (D) to the extent requested by Agent, receipt by Agent and the Secured Parties of liability releases from the Credit Parties each in form and substance acceptable to Agent; and

 

(c)                                   on the Closing Date, any Lien held by Agent for the benefit of the Secured Parties against any Stock or Stock Equivalents owned legally or beneficially by the Permitted Holders.

 

Each Lender and L/C Issuer hereby directs Agent, and Agent hereby agrees, upon receipt of at least five (5) Business Days’ advance notice from the Borrower, to execute and deliver or file such documents and to perform other actions reasonably necessary to release the guaranties and Liens when and as directed in this Section 8.10 .

 

8.11                         Additional Secured Parties .

 

The benefit of the provisions of the Loan Documents directly relating to the Collateral or any Lien granted thereunder shall extend to and be available to any Secured Party that is not a Lender or L/C Issuer party hereto as long as, by accepting such benefits, such Secured Party agrees, as among Agent and all other Secured Parties, that such Secured Party is bound by (and, if requested by Agent, shall confirm such agreement in a writing in form and substance

 

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acceptable to Agent) this Article VIII and Sections 9.3 , 9.9 , 9.10 , 9.11 , 9.17 , 9.24 and 10.1 (and, solely with respect to L/C Issuers, Section 1.1(c) ) and the decisions and actions of Agent and the Required Lenders (or, where expressly required by the terms of this Agreement, a greater proportion of the Lenders or other parties hereto as required herein) to the same extent a Lender is bound; provided , however , that, notwithstanding the foregoing, (a) such Secured Party shall be bound by Section 8.8 only to the extent of Liabilities, costs and expenses with respect to or otherwise relating to the Collateral held for the benefit of such Secured Party, in which case the obligations of such Secured Party thereunder shall not be limited by any concept of pro rata share or similar concept, (b) each of Agent, the Lenders and the L/C Issuers party hereto shall be entitled to act at its sole discretion, without regard to the interest of such Secured Party, regardless of whether any Obligation to such Secured Party thereafter remains outstanding, is deprived of the benefit of the Collateral, becomes unsecured or is otherwise affected or put in jeopardy thereby, and without any duty or liability to such Secured Party or any such Obligation and (c) except as otherwise set forth herein, such Secured Party shall not have any right to be notified of, consent to, direct, require or be heard with respect to, any action taken or omitted in respect of the Collateral or under any Loan Document.

 

8.12                         Information Regarding Bank Products and Secured Rate Contracts .  Each Lender agrees that, upon the reasonable request of the Agent, it shall from time to time provide the Agent with updated information regarding the maximum dollar amount of obligations under Bank Products or obligations under Secured Rate Contracts in order to facilitate the Agent’s administration of the credit facilities hereunder.

 

ARTICLE IX.
MISCELLANEOUS

 

9.1                                Amendments and Waivers .

 

(a)                                  No amendment or waiver of any provision of this Agreement or any other Loan Document, and no consent with respect to any departure by any Credit Party therefrom, shall be effective unless the same shall be in writing and signed by Agent, the Required Lenders (or by Agent with the consent of the Required Lenders), and the Borrower, and then such waiver shall be effective only in the specific instance and for the specific purpose for which given; provided , however , that no such waiver, amendment, or consent shall, unless in writing and signed by all the Lenders directly affected thereby (or by Agent with the consent of all the Lenders directly affected thereby), in addition to Agent and the Required Lenders (or by Agent with the consent of the Required Lenders) and the Borrower, do any of the following:

 

(i)                                      increase or extend the Commitment of any Lender (or reinstate any Commitment terminated pursuant to Section 7.2(a) );

 

(ii)                                   postpone or delay any date fixed for, or reduce or waive, any scheduled installment of principal or any payment of interest, fees or other amounts (other than principal) due to the Lenders (or any of them) or L/C Issuer hereunder or under any other Loan Document;

 

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(iii)                                reduce the principal of, or the rate of interest specified herein or the amount of interest payable in cash specified herein on any Loan, or of any fees or other amounts payable hereunder or under any other Loan Document, including L/C Reimbursement Obligations;

 

(iv)                               amend or modify Section 1.10(c) ;

 

(v)                                  change the percentage of the Commitments or of the aggregate unpaid principal amount of the Loans which shall be required for the Lenders or any of them to take any action hereunder;

 

(vi)                               amend this Section 9.1 or, subject to Section 9.1(e)  below, the definition of Required Lenders or any provision providing for consent or other action by all Lenders; or

 

(vii)                            discharge any Credit Party from its respective payment Obligations under the Loan Documents, or release all or substantially all of the Collateral, except as otherwise may be provided in this Agreement or the other Loan Documents;

 

it being agreed that all Lenders shall be deemed to be directly affected by an amendment or waiver of the type described in Sections 9.1(a)(iv) , (v) , (vi)  and (vii) .

 

(b)                                  No amendment, waiver or consent shall, unless in writing and signed by Agent, the Swingline Lender or the L/C Issuer, as the case may be, in addition to the Required Lenders or all Lenders directly affected thereby, as the case may be (or by Agent with the consent of the Required Lenders or all the Lenders directly affected thereby, as the case may be), affect the rights or duties of Agent, the Swingline Lender or the L/C Issuer, as applicable, under this Agreement or any other Loan Document. No amendment, modification or waiver of this Agreement or any Loan Document altering the ratable treatment of Obligations arising under Secured Rate Contracts resulting in such Obligations being junior in right of payment to principal on the Loans or resulting in Obligations owing to any Secured Swap Provider becoming unsecured (other than releases of Liens permitted in accordance with the terms hereof), in each case in a manner adverse to any Secured Swap Provider, shall be effective without the written consent of such Secured Swap Provider or, in the case of a Secured Rate Contract provided or arranged by GE Capital or an Affiliate of GE Capital, GE Capital.

 

(c)                                   No amendment or waiver shall, unless signed by the Required Lenders (or by Agent with the consent of the Required Lenders):  (i) amend or waive compliance with the conditions precedent to the obligations of Lenders to make any Revolving Loan (or of L/C Issuer to Issue any Letter of Credit) in Section 2.2 ; (ii) waive any Default or Event of Default for the purpose of satisfying the conditions precedent to the obligations of Lenders to make any Revolving Loan (or of any L/C Issuer to Issue any Letter of Credit) in Section 2.2 ; (iii) amend or waive this Section 9.1(c)  or the definitions of the terms used in this Section 9.1(c)  insofar as the definitions affect the substance of this Section 9.1(c) ; or (iv) amend or modify the definitions of Eligible Accounts, Eligible Inventory or Borrowing Base, including any increase in the percentage advance rates in the definition of Borrowing Base, in a manner which would increase the availability of credit under the Revolving Loan.  No amendment or waiver shall, unless

 

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signed by Agent and all Lenders (or by Agent with the consent of all Lenders) in addition to the Required Lenders (or by Agent with the consent of the Required Lenders), change the definition of (x) the term Required Lenders, (y) the percentage of Lenders which shall be required for Lenders to take any action hereunder or (z) any specific right of Required Lenders to grant or withhold consent or take or omit to take any action hereunder.

 

(d)                                  Notwithstanding anything set forth herein to the contrary, a Non-Funding Lender shall not have any voting or consent rights under or with respect to any Loan Document or constitute a “Lender” (or be, or have its Loans and Commitments, included in the determination of “Required Lenders” or “Lenders directly affected” pursuant to this Section 9.1 ) for any voting or consent rights under or with respect to any Loan Document, except that a Non-Funding Lender shall be treated as an “affected Lender” for purposes of Section 9.1(a)(i)  and 9.1(a)(iii)  solely with respect to an increase in such Non-Funding Lender’s Commitments, a reduction of the principal amount owed to such Non-Funding Lender or, unless such Non-Funding Lender is treated the same as the other Lenders holding Loans of the same type, a reduction in the interest rates applicable to the Loans held by such Non-Funding Lender.  Moreover, for the purposes of determining Required Lenders, the Loans and Commitments held by Non-Funding Lenders shall be excluded from the total Loans and Commitments outstanding.

 

(e)                                   Subject to the provisions of Section 9.1(a) , notwithstanding anything set forth herein to the contrary, this Agreement may be amended with the written consent of Agent, the Borrower and the Required Lenders to (i) add one or more additional credit facilities to this Agreement and to permit the extensions of credit from time to time outstanding thereunder and the outstanding principal and accrued interest and fees in respect thereof to share ratably in the benefits of this Agreement and the other Loan Documents with the Revolving Loans and the accrued interest and fees in respect thereof and (ii) include appropriately the Lenders holding such credit facilities in any determination of the Required Lenders.

 

(f)                                    Notwithstanding anything to the contrary contained in this Section 9.1 , (i) the Borrower may amend Schedules 3.19 and 3.21 upon notice to Agent, (ii) Agent may amend Schedule 1.1(b)  to reflect Sales entered into pursuant to Section 9.9 , and (iii) Agent and the Borrower may amend or modify this Agreement and any other Loan Document to (1) cure any ambiguity, omission, defect or inconsistency therein, or (2) grant a new Lien for the benefit of the Secured Parties, extend an existing Lien over additional Property for the benefit of the Secured Parties or join additional Persons as Credit Parties; provided that no Accounts or Inventory of such Person shall be included as Eligible Accounts or Eligible Inventory until a field examination (and, if required by Agent, an Inventory appraisal) with respect thereto has been completed to the satisfaction of Agent, including the establishment of Reserves required in Agent’s Permitted Discretion.

 

9.2                                Notices .

 

(a)                                  Addresses .  All notices and other communications required or expressly authorized to be made by this Agreement shall be given in writing, unless otherwise expressly specified herein, and (i) addressed to the address set forth on the applicable signature page hereto (in the case of such notices and other communications to Agent, including a mandatory e-mail notice to the e-mail address on the applicable signature page hereto), (ii) posted to Syndtrak

 

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Online® the extent such system is available and set up by or at the direction of Agent prior to posting) in an appropriate location by uploading such notice, demand, request, direction or other communication to www.SyndTrak.com or using such other means of posting to Syndtrak Online® as may be available and reasonably acceptable to Agent prior to such posting, (iii) posted to any other E-System approved by or set up by or at the direction of Agent or (iv) addressed to such other address as shall be notified in writing (A) in the case of the Borrower, Agent and the Swingline Lender, to the other parties hereto and (B) in the case of all other parties, to the Borrower and Agent.  Transmissions made by electronic mail or E-Fax to Agent shall be effective only (x) for notices where such transmission is specifically authorized by this Agreement, (y) if such transmission is delivered in compliance with procedures of Agent applicable at the time and previously communicated to Borrower, and (z) if receipt of such transmission is acknowledged by Agent.

 

(b)                                  Effectiveness .  (i)  All communications described in Section 9.2(a)  and all other notices, demands, requests and other communications made in connection with this Agreement shall be effective and be deemed to have been received (i) if delivered by hand, upon personal delivery, (ii) if delivered by overnight courier service, one (1) Business Day after delivery to such courier service, (iii) if delivered by mail, three (3) Business Days after deposit in the mail, (iv) if delivered by facsimile (other than to post to an E-System pursuant to Section 9.2(a)(ii)  or (a)(iii) ), upon sender’s receipt of confirmation of proper transmission, and (v) if delivered by posting to any E-System, on the later of the Business Day of such posting and the Business Day access to such posting is given to the recipient thereof in accordance with the standard procedures applicable to such E-System; provided , however , that no communications to Agent pursuant to Article I shall be effective until received by Agent.

 

(ii)                                   The posting, completion and/or submission by any Credit Party of any communication pursuant to an E System shall constitute a representation and warranty by the Credit Parties that any representation, warranty, certification or other similar statement required by the Loan Documents to be provided , given or made by a Credit Party in connection with any such communication is true, correct and complete except as expressly noted in such communication or E-System.

 

(c)                                   Each Lender shall notify Agent in writing of any changes in the address to which notices to such Lender should be directed, of addresses of its Lending Office, of payment instructions in respect of all payments to be made to it hereunder and of such other administrative information as Agent shall reasonably request.

 

9.3                                Electronic Transmissions .

 

(a)                                  Authorization .  Subject to the provisions of Section 9.2(a) , each of Agent, Lenders, each Credit Party and each of their Related Persons, is authorized (but not required) to transmit, post or otherwise make or communicate, in its sole discretion, Electronic Transmissions in connection with any Loan Document and the transactions contemplated therein.  Each Credit Party and each Secured Party hereto acknowledges and agrees that the use of Electronic Transmissions is not necessarily secure and that there are risks associated with such use, including risks of interception, disclosure and abuse and each indicates it assumes and accepts such risks by hereby authorizing the transmission of Electronic Transmissions.

 

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(b)                                  Signatures .  Subject to the provisions of Section 9.2(a) , (i)(A) no posting to any E-System shall be denied legal effect merely because it is made electronically, (B) each E Signature on any such posting shall be deemed sufficient to satisfy any requirement for a “signature” and (C) each such posting shall be deemed sufficient to satisfy any requirement for a “writing”, in each case including pursuant to any Loan Document, any applicable provision of any UCC, the federal Uniform Electronic Transactions Act, the Electronic Signatures in Global and National Commerce Act and any substantive or procedural Requirement of Law governing such subject matter, (ii) each such posting that is not readily capable of bearing either a signature or a reproduction of a signature may be signed, and shall be deemed signed, by attaching to, or logically associating with such posting, an E-Signature, upon which Agent, each Secured Party and each Credit Party may rely and assume the authenticity thereof, (iii) each such posting containing a signature, a reproduction of a signature or an E-Signature shall, for all intents and purposes, have the same effect and weight as a signed paper original and (iv) each party hereto or beneficiary hereto agrees not to contest the validity or enforceability of any posting on any E-System or E-Signature on any such posting under the provisions of any applicable Requirement of Law requiring certain documents to be in writing or signed; provided , however , that nothing herein shall limit such party’s or beneficiary’s right to contest whether any posting to any E-System or E-Signature has been altered after transmission.

 

(c)                                   Separate Agreements .  All uses of an E-System shall be governed by and subject to, in addition to Section 9.2 and this Section 9.3 , the separate terms, conditions and privacy policy posted or referenced in such E-System (or such terms, conditions and privacy policy as may be updated from time to time, including on such E System) and related Contractual Obligations executed by Agent and Credit Parties in connection with the use of such E-System.

 

(d)                                  LIMITATION OF LIABILITY .  ALL E-SYSTEMS AND ELECTRONIC TRANSMISSIONS SHALL BE PROVIDED “AS IS” AND “AS AVAILABLE”.  NONE OF AGENT, ANY LENDER OR ANY OF THEIR RELATED PERSONS WARRANTS THE ACCURACY, ADEQUACY OR COMPLETENESS OF ANY E-SYSTEMS OR ELECTRONIC TRANSMISSION AND DISCLAIMS ALL LIABILITY FOR ERRORS OR OMISSIONS THEREIN.  NO WARRANTY OF ANY KIND IS MADE BY AGENT, ANY LENDER OR ANY OF THEIR RELATED PERSONS IN CONNECTION WITH ANY E SYSTEMS OR ELECTRONIC COMMUNICATION, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD-PARTY RIGHTS OR FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS.  Each of the Borrower, each other Credit Party executing this Agreement and each Secured Party agrees that Agent has no responsibility for maintaining or providing any equipment, software, services or any testing required in connection with any Electronic Transmission or otherwise required for any E-System.

 

9.4                                No Waiver; Cumulative Remedies .

 

No failure to exercise and no delay in exercising, on the part of Agent or any Lender, any right, remedy, power or privilege hereunder, shall operate as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.  No

 

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course of dealing between any Credit Party, any Affiliate of any Credit Party, Agent or any Lender shall be effective to amend, modify or discharge any provision of this Agreement or any of the other Loan Documents.

 

9.5                                Costs and Expenses .

 

Any action taken by any Credit Party under or with respect to any Loan Document, even if required under any Loan Document or at the request of Agent or Required Lenders, shall be at the expense of such Credit Party, and neither Agent nor any other Secured Party shall be required under any Loan Document to reimburse any Credit Party or any Subsidiary of any Credit Party therefor except as expressly provided therein.  In addition, the Borrower agrees to pay or reimburse upon demand (a) Agent for all costs and expenses incurred by it or any of its Related Persons, in connection with the investigation, development, preparation, negotiation, syndication, execution, interpretation or administration of, any modification of any term of or termination of, any Loan Document, any commitment or proposal letter therefor, any other document prepared in connection therewith or the consummation and administration of any transaction contemplated therein, in each case including Attorney Costs of Agent, the cost of environmental audits, Collateral audits and appraisals, background checks and similar expenses, (b) Agent for all costs and expenses incurred by it or any of its Related Persons in connection with internal audit reviews, field examinations and Collateral examinations, including Agent’s internal field examination group (which shall be reimbursed, in addition to the out-of-pocket costs and expenses of such examiners, at the per diem rate per individual charged by Agent for its examiners), (c) each of Agent, its Related Persons, and L/C Issuer for all costs and expenses incurred in connection with (i) any refinancing or restructuring of the credit arrangements provided hereunder in the nature of a “work-out”, (ii) the enforcement or preservation of any right or remedy under any Loan Document, any Obligation, with respect to the Collateral or any other related right or remedy or (iii) the commencement, defense, conduct of, intervention in, or the taking of any other action (including, without limitation, preparation for and/or response to any subpoena or request for document production relating thereto) with respect to, any proceeding (including any bankruptcy or insolvency proceeding) related to any Credit Party, any Subsidiary of any Credit Party, Loan Document, Obligation or Related Transaction, including Attorney Costs and (d) fees and disbursements of Attorney Costs of one law firm for each Lender (other than Agent) incurred in connection with any of the matters referred to in clause (c)  above.

 

9.6                                Indemnity .

 

(a)                                  Each Credit Party agrees to indemnify, hold harmless and defend Agent, each Lender, each L/C Issuer and each of their respective Related Persons (each such Person being an “ Indemnitee ”) from and against all Liabilities (including brokerage commissions, fees and other compensation) that may be imposed on, incurred by or asserted against any such Indemnitee in any matter relating to or arising out of, in connection with or as a result of (i) any Loan Document, any Related Agreement, any Obligation (or the repayment thereof), any Letter of Credit, the use or intended use of the proceeds of any Loan or the use of any Letter of Credit or any securities filing of, or with respect to, any Credit Party, (ii) any commitment letter, proposal letter or term sheet with any Person or any Contractual Obligation, arrangement or understanding with any broker, finder or consultant, in each case entered into by or on behalf of

 

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any Credit Party or any Affiliate of any of them in connection with any of the foregoing and any Contractual Obligation entered into in connection with any E-Systems or other Electronic Transmissions, (iii) any actual or prospective investigation, litigation or other proceeding, whether or not brought by any such Indemnitee or any of its Related Persons, any holders of securities or creditors (and including attorneys’ fees in any case), whether or not any such Indemnitee, Related Person, holder or creditor is a party thereto, and whether or not based on any securities or commercial law or regulation or any other Requirement of Law or theory thereof, including common law, equity, contract, tort or otherwise or (iv) any other act, event or transaction related, contemplated in or attendant to any of the foregoing (collectively, the “ Indemnified Matters ”); provided , however , that no Credit Party shall have any liability under this Section 9.6 to any Indemnitee with respect to any Indemnified Matter, and no Indemnitee shall have any liability with respect to any Indemnified Matter other than (to the extent otherwise liable), to the extent such liability has resulted primarily from the gross negligence or willful misconduct of such Indemnitee, as determined by a court of competent jurisdiction in a final non-appealable judgment or order.  Furthermore, each of the Borrower and each other Credit Party executing this Agreement waives and agrees not to assert against any Indemnitee, and shall cause each other Credit Party to waive and not assert against any Indemnitee, any right of contribution with respect to any Liabilities that may be imposed on, incurred by or asserted against any Related Person.

 

(b)                                  Without limiting the foregoing, “Indemnified Matters” includes all Environmental Liabilities, including those arising from, or otherwise involving, any Property of any Credit Party or any Related Person of any Credit Party or any actual, alleged or prospective damage to Property or natural resources or harm or injury alleged to have resulted from any Release of Hazardous Materials on, upon or into such Property or natural resource or any Property on or contiguous to any Real Estate of any Credit Party or any Related Person of any Credit Party, whether or not, with respect to any such Environmental Liabilities, any Indemnitee is a mortgagee pursuant to any leasehold mortgage, a mortgagee in possession, the successor-in-interest to any Credit Party or any Related Person of any Credit Party or the owner, lessee or operator of any Property of any Related Person through any foreclosure action, in each case except to the extent such Environmental Liabilities (i) are incurred solely following foreclosure by Agent or following Agent or any Lender having become the successor-in-interest to any Credit Party or any Related Person of any Credit Party and (ii) are attributable solely to acts of such Indemnitee.

 

9.7                                Marshaling; Payments Set Aside .

 

No Secured Party shall be under any obligation to marshal any Property in favor of any Credit Party or any other Person or against or in payment of any Obligation.  To the extent that any Secured Party receives a payment from the Borrower, from any other Credit Party, from the proceeds of the Collateral, from the exercise of its rights of setoff, any enforcement action or otherwise, and such payment is subsequently, in whole or in part, invalidated, declared to be fraudulent or preferential, set aside or required to be repaid to a trustee, receiver or any other party, then to the extent of such recovery, the obligation or part thereof originally intended to be satisfied, and all Liens, rights and remedies therefor, shall be revived and continued in full force and effect as if such payment had not occurred.

 

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9.8                                Successors and Assigns .

 

The provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns; provided that any assignment by any Lender shall be subject to the provisions of Section 9.9 , and provided further that the Borrower may not assign or transfer any of its rights or obligations under this Agreement without the prior written consent of Agent and each Lender.

 

9.9                                Assignments and Participations; Binding Effect .

 

(a)                                  Binding Effect .  This Agreement shall become effective when it shall have been executed by the Borrower, the other Credit Parties signatory hereto and Agent and when Agent shall have been notified by each Lender that such Lender has executed it.  Thereafter, it shall be binding upon and inure to the benefit of, but only to the benefit of, the Borrower, the other Credit Parties hereto (in each case except for Article VIII ), Agent, each Lender and each L/C Issuer receiving the benefits of the Loan Documents and, to the extent provided in Section 8.11 , each other Secured Party and, in each case, their respective successors and permitted assigns.  Except as expressly provided in any Loan Document (including in Section 8.9 ), none of the Borrower, any other Credit Party, any L/C Issuer or Agent shall have the right to assign any rights or obligations hereunder or any interest herein.

 

(b)                                  Right to Assign .  Each Lender may sell, transfer, negotiate or assign (a “ Sale ”) all or a portion of its rights and obligations hereunder (including all or a portion of its Commitments and its rights and obligations with respect to Loans and Letters of Credit) to (i) any existing Lender (other than a Non-Funding Lender or Impacted Lender), (ii) any Affiliate or Approved Fund of any existing Lender (other than a Non-Funding Lender or Impacted Lender) or (iii) any other Person acceptable (which acceptance shall not be unreasonably withheld or delayed) to Agent and, with respect to Sales of Revolving Loan Commitments, each L/C Issuer that is a Lender and, as long as no Event of Default is continuing, the Borrower (which acceptances shall be deemed to have been given unless an objection is delivered to Agent within five (5) Business Days after notice of a proposed sale is delivered to the Borrower); provided , however , that (v) such Sales must be ratable among the obligations owing to and owed by such Lender with respect to the Revolving Loans, (w) for each Loan, the aggregate outstanding principal amount (determined as of the effective date of the applicable Assignment) of the Loans, Commitments and Letter of Credit Obligations subject to any such Sale shall be in a minimum amount of $1,000,000, unless such Sale is made to an existing Lender or an Affiliate or Approved Fund of any existing Lender, is of the assignor’s (together with its Affiliates and Approved Funds) entire interest in such facility or is made with the prior consent of the Borrower (to the extent required) and Agent, (x) such Sales shall be effective only upon the acknowledgement in writing of such Sale by Agent, (y) interest accrued prior to and through the date of any such Sale may not be assigned, and (z) such Sales by Lenders who are Non-Funding Lenders due to clause (a)  of the definition of Non-Funding Lender shall be subject to Agent’s prior written consent in all instances, unless in connection with such Sale, such Non-Funding Lender cures, or causes the cure of, its Non-Funding Lender status as contemplated in Section 1.11(e)(v) .  Agent’s refusal to accept a Sale to a Credit Party, an Affiliate of a Credit Party, a holder of Subordinated Indebtedness or an Affiliate of such a holder, or to any Person that would be a Non-Funding Lender or an Impacted Lender, or the imposition of conditions or limitations

 

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(including limitations on voting) upon Sales to such Persons, shall not be deemed to be unreasonable.

 

(c)                                   Procedure .  The parties to each Sale made in reliance on Section 9.9(b)  (other than those described in Section 9.9(e)  or (f) ) shall execute and deliver to Agent an Assignment via an electronic settlement system designated by Agent (or, if previously agreed with Agent, via a manual execution and delivery of the Assignment) evidencing such Sale, together with any existing Note subject to such Sale (or any affidavit of loss therefor acceptable to Agent), any tax forms required to be delivered pursuant to Section 10.1 and payment of an assignment fee in the amount of $3,500 to Agent, unless waived or reduced by Agent; provided , that (i) if a Sale by a Lender is made to an Affiliate or an Approved Fund of such assigning Lender, then no assignment fee shall be due in connection with such Sale, and (ii) if a Sale by a Lender is made to an assignee that is not an Affiliate or Approved Fund of such assignor Lender, and concurrently to one or more Affiliates or Approved Funds of such Assignee, then only one assignment fee of $3,500 shall be due in connection with such Sale (unless waived or reduced by Agent).  Upon receipt of all the foregoing, and conditioned upon such receipt and, if such Assignment is made in accordance with clause (iii)  of Section 9.9(b) , upon Agent (and the Borrower, if applicable) consenting to such Assignment, from and after the effective date specified in such Assignment, Agent shall record or cause to be recorded in the Register the information contained in such Assignment.

 

(d)                                  Effectiveness .  Subject to the recording of an Assignment by Agent in the Register pursuant to Section 1.4(b) , (i) the assignee thereunder shall become a party hereto and, to the extent that rights and obligations under the Loan Documents have been assigned to such assignee pursuant to such Assignment, shall have the rights and obligations of a Lender, (ii) any applicable Note shall be transferred to such assignee through such entry and (iii) the assignor thereunder shall, to the extent that rights and obligations under this Agreement have been assigned by it pursuant to such Assignment, relinquish its rights (except for those surviving the termination of the Commitments and the payment in full of the Obligations) and be released from its obligations under the Loan Documents, other than those relating to events or circumstances occurring prior to such assignment (and, in the case of an Assignment covering all or the remaining portion of an assigning Lender’s rights and obligations under the Loan Documents, such Lender shall cease to be a party hereto).

 

(e)                                   Grant of Security Interests .  In addition to the other rights provided in this Section 9.9 , each Lender may grant a security interest in, or otherwise assign as collateral, any of its rights under this Agreement, whether now owned or hereafter acquired (including rights to payments of principal or interest on the Loans), to (A) any federal reserve bank (pursuant to Regulation A of the Federal Reserve Board), without notice to Agent or (B) any holder of, or trustee for the benefit of the holders of, such Lender’s Indebtedness or equity securities, by notice to Agent; provided , however , that no such holder or trustee, whether because of such grant or assignment or any foreclosure thereon (unless such foreclosure is made through an assignment in accordance with Section 9.9(b) ), shall be entitled to any rights of such Lender hereunder and no such Lender shall be relieved of any of its obligations hereunder.

 

(f)                                    Participants and SPVs .  In addition to the other rights provided in this Section 9.9 , each Lender may, (x) with notice to Agent, grant to an SPV the option to make all or

 

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any part of any Loan that such Lender would otherwise be required to make hereunder (and the exercise of such option by such SPV and the making of Loans pursuant thereto shall satisfy the obligation of such Lender to make such Loans hereunder) and such SPV may assign to such Lender the right to receive payment with respect to any Obligation and (y) without notice to or consent from Agent or the Borrower, sell participations to one or more Persons in or to all or a portion of its rights and obligations under the Loan Documents (including all its rights and obligations with respect to the Revolving Loans and Letters of Credit); provided , however , that, whether as a result of any term of any Loan Document or of such grant or participation, (i) no such SPV or participant shall have a commitment, or be deemed to have made an offer to commit, to make Loans hereunder, and, except as provided in the applicable option agreement, none shall be liable for any obligation of such Lender hereunder, (ii) such Lender’s rights and obligations, and the rights and obligations of the Credit Parties and the Secured Parties towards such Lender, under any Loan Document shall remain unchanged and each other party hereto shall continue to deal solely with such Lender, which shall remain the holder of the Obligations in the Register, except that (A) each such participant and SPV shall be entitled to the benefit of Article X , but, with respect to Section 10.1 , only to the extent such participant or SPV delivers the tax forms such Lender is required to collect pursuant to Section 10.1(f)  and then only to the extent of any amount to which such Lender would be entitled in the absence of any such grant or participation and (B) each such SPV may receive other payments that would otherwise be made to such Lender with respect to Loans funded by such SPV to the extent provided in the applicable option agreement and set forth in a notice provided to Agent by such SPV and such Lender, provided , however , that in no case (including pursuant to clause (A)  or (B)  above) shall an SPV or participant have the right to enforce any of the terms of any Loan Document, and (iii) the consent of such SPV or participant shall not be required (either directly, as a restraint on such Lender’s ability to consent hereunder or otherwise) for any amendments, waivers or consents with respect to any Loan Document or to exercise or refrain from exercising any powers or rights such Lender may have under or in respect of the Loan Documents (including the right to enforce or direct enforcement of the Obligations), except for those described in clauses (ii)  and (iii)  of Section 9.1(a)  with respect to amounts, or dates fixed for payment of amounts, to which such participant or SPV would otherwise be entitled and, in the case of participants, except for those described in Section 9.1(a)(vi) .  No party hereto shall institute (and the Borrower shall cause each other Credit Party not to institute) against any SPV grantee of an option pursuant to this Section 9.9(f)  any bankruptcy, reorganization, insolvency, liquidation or similar proceeding, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper of such SPV; provided , however , that each Lender having designated an SPV as such agrees to indemnify each Indemnitee against any Liability that may be incurred by, or asserted against, such Indemnitee as a result of failing to institute such proceeding (including a failure to be reimbursed by such SPV for any such Liability).  The agreement in the preceding sentence shall survive the termination of the Commitments and the payment in full of the Obligations.

 

9.10                         Non-Public Information; Confidentiality .

 

(a)                                  Non-Public Information .  Each of Agent, each Lender and L/C Issuer acknowledges and agrees that it may receive material non-public information (“ MNPI ”) hereunder concerning the Credit Parties and their Affiliates and agrees to use such information in

 

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compliance with all relevant policies, procedures and applicable Requirements of Laws (including United States federal and state security laws and regulations).

 

(b)                                  Confidential Information .  Each of Agent, each Lender and each L/C Issuer and Agent agrees to use all reasonable efforts to maintain, in accordance with its customary practices, the confidentiality of information obtained by it pursuant to any Loan Document and designated in writing by any Credit Party as confidential, except that such information may be disclosed (i) with the Borrower’s consent, (ii) to Related Persons of such Lender, L/C Issuer or Agent, as the case may be, or to any Person that any L/C Issuer causes to Issue Letters of Credit hereunder, that are advised of the confidential nature of such information and are instructed to keep such information confidential in accordance with the terms hereof, (iii) to the extent such information presently is or hereafter becomes (A) publicly available other than as a result of a breach of this Section 9.10 or (B) available to such Lender, L/C Issuer or Agent or any of their Related Persons, as the case may be, from a source (other than any Credit Party) not known by them to be subject to disclosure restrictions, (iv) to the extent disclosure is required by applicable Requirements of Law or other legal process or requested or demanded by any Governmental Authority, (v) to the extent necessary or customary for inclusion in league table measurements, (vi) (A) to the National Association of Insurance Commissioners or any similar organization, any examiner or any nationally recognized rating agency or (B) otherwise to the extent consisting of general portfolio information that does not identify Credit Parties, (vii) to current or prospective assignees, SPVs (including the investors or prospective investors therein) or participants, direct or contractual counterparties to any Secured Rate Contracts and to their respective Related Persons, in each case to the extent such assignees, investors, participants, counterparties or Related Persons agree to be bound by provisions substantially similar to the provisions of this Section 9.10 (and such Person may disclose information to their respective Related Persons in accordance with clause (ii)  above), (viii) to any other party hereto, and (ix) in connection with the exercise or enforcement of any right or remedy under any Loan Document, in connection with any litigation or other proceeding to which such Lender, L/C Issuer or Agent or any of their Related Persons is a party or bound, or to the extent necessary to respond to public statements or disclosures by Credit Parties or their Related Persons referring to a Lender, L/C Issuer or Agent or any of their Related Persons.  In the event of any conflict between the terms of this Section 9.10 and those of any other Contractual Obligation entered into with any Credit Party (whether or not a Loan Document), the terms of this Section 9.10 shall govern.

 

(c)                                   Tombstones .  Each Credit Party consents to the publication by Agent or any Lender of any press releases, tombstones, advertising or other promotional materials (including, without limitation, via any Electronic Transmission) relating to the financing transactions contemplated by this Agreement using such Credit Party’s name, product photographs, logo or trademark.

 

(d)                                  Press Release and Related Matters .  No Credit Party shall, and no Credit Party shall permit any of its Affiliates to, issue any press release or other public disclosure (other than any document filed with any Governmental Authority relating to a public offering of securities of any Credit Party) using the name, logo or otherwise referring to GE Capital or of any of its Affiliates, the Loan Documents or any transaction contemplated herein or therein to which GE Capital or any of its affiliates is party without the prior written consent of GE Capital

 

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or such Affiliate except to the extent required to do so under applicable Requirements of Law and then, only after consulting with GE Capital.

 

(e)                                   Distribution of Materials to Lenders and L/C Issuers .  The Credit Parties acknowledge and agree that the Loan Documents and all reports, notices, communications and other information or materials provided or delivered by, or on behalf of, the Credit Parties hereunder (collectively, the “ Borrower Materials ”) may be disseminated by, or on behalf of, Agent, and made available, to the Lenders and the L/C Issuers by posting such Borrower Materials on an E-System. The Credit Parties authorize Agent to download copies of their logos from its website and post copies thereof on an E-System.

 

(f)                                    Material Non-Public Information .  The Credit Parties hereby agree that if either they, any parent company or any Subsidiary of the Credit Parties has publicly traded equity or debt securities in the U.S., they shall (and shall cause such parent company or Subsidiary, as the case may be, to) (i) identify in writing, and (ii) to the extent reasonably practicable, clearly and conspicuously mark such Borrower Materials that contain only information that is publicly available or that is not material for purposes of U.S. federal and state securities laws as “PUBLIC”. The Credit Parties agree that by identifying such Borrower Materials as “PUBLIC” or publicly filing such Borrower Materials with the Securities and Exchange Commission, then Agent, the Lenders and the L/C Issuers shall be entitled to treat such Borrower Materials as not containing any MNPI for purposes of U.S. federal and state securities laws. The Credit Parties further represent, warrant, acknowledge and agree that the following documents and materials shall be deemed to be PUBLIC, whether or not so marked, and do not contain any MNPI:  (A) the Loan Documents, including the schedules and exhibits attached thereto, and (B) administrative materials of a customary nature prepared by the Credit Parties or Agent (including, Notices of Borrowing, Notices of Conversion/Continuation, L/C Requests, Swingline requests and any similar requests or notices posted on or through an E-System). Before distribution of any Borrower Materials, the Credit Parties agree to execute and deliver to Agent a letter authorizing distribution of the evaluation materials to prospective Lenders and their employees willing to receive MNPI, and a separate letter authorizing distribution of evaluation materials that do not contain MNPI and represent that no MNPI is contained therein.

 

9.11                         Set-off; Sharing of Payments .

 

(a)                                  Right of Setoff .  Each of Agent, each Lender, each L/C Issuer and each Affiliate (including each branch office thereof) of any of them is hereby authorized, without notice or demand (each of which is hereby waived by each Credit Party), at any time and from time to time during the continuance of any Event of Default and to the fullest extent permitted by applicable Requirements of Law, to set off and apply any and all deposits (whether general or special, time or demand, provisional or final) at any time held and other Indebtedness, claims or other obligations at any time owing by Agent, such Lender, such L/C Issuer or any of their respective Affiliates to or for the credit or the account of the Borrower or any other Credit Party against any Obligation of any Credit Party now or hereafter existing, whether or not any demand was made under any Loan Document with respect to such Obligation and even though such Obligation may be unmatured.  No Lender or L/C Issuer shall exercise any such right of setoff without the prior consent of Agent or Required Lenders. Each of Agent, each Lender and each

 

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L/C Issuer agrees promptly to notify the Borrower and Agent after any such setoff and application made by such Lender or its Affiliates; provided , however , that the failure to give such notice shall not affect the validity of such setoff and application.  The rights under this Section 9.11 are in addition to any other rights and remedies (including other rights of setoff) that Agent, the Lenders, the L/C Issuer, their Affiliates and the other Secured Parties, may have.

 

(b)                                  Sharing of Payments, Etc .  If any Lender, directly or through an Affiliate or branch office thereof, obtains any payment of any Obligation of any Credit Party (whether voluntary, involuntary or through the exercise of any right of setoff or the receipt of any Collateral or “proceeds” (as defined under the applicable UCC) of Collateral) other than pursuant to Section 9.9 or Article X and such payment exceeds the amount such Lender would have been entitled to receive if all payments had gone to, and been distributed by, Agent in accordance with the provisions of the Loan Documents, such Lender shall purchase for cash from other Lenders such participations in their Obligations as necessary for such Lender to share such excess payment with such Lenders to ensure such payment is applied as though it had been received by Agent and applied in accordance with this Agreement (or, if such application would then be at the discretion of the Borrower, applied to repay the Obligations in accordance herewith); provided , however , that (i) if such payment is rescinded or otherwise recovered from such Lender or L/C Issuer in whole or in part, such purchase shall be rescinded and the purchase price therefor shall be returned to such Lender or L/C Issuer without interest and (ii) such Lender shall, to the fullest extent permitted by applicable Requirements of Law, be able to exercise all its rights of payment (including the right of setoff) with respect to such participation as fully as if such Lender were the direct creditor of the applicable Credit Party in the amount of such participation.  If a Non-Funding Lender receives any such payment as described in the previous sentence, such Lender shall turn over such payments to Agent in an amount that would satisfy the cash collateral requirements set forth in Section 1.11(e) .

 

9.12                         Counterparts; Facsimile Signature .

 

This Agreement may be executed in any number of counterparts and by different parties in separate counterparts, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute one and the same agreement.  Signature pages may be detached from multiple separate counterparts and attached to a single counterpart.  Delivery of an executed signature page of this Agreement by facsimile transmission or Electronic Transmission shall be as effective as delivery of a manually executed counterpart hereof.

 

9.13                         Severability .

 

The illegality or unenforceability of any provision of this Agreement or any instrument or agreement required hereunder shall not in any way affect or impair the legality or enforceability of the remaining provisions of this Agreement or any instrument or agreement required hereunder.

 

9.14                         Captions .

 

The captions and headings of this Agreement are for convenience of reference only and shall not affect the interpretation of this Agreement.

 

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9.15                         Independence of Provisions .

 

The parties hereto acknowledge that this Agreement and the other Loan Documents may use several different limitations, tests or measurements to regulate the same or similar matters, and that such limitations, tests and measurements are cumulative and must each be performed, except as expressly stated to the contrary in this Agreement.

 

9.16                         Interpretation .

 

This Agreement is the result of negotiations among and has been reviewed by counsel to Credit Parties, Agent, each Lender and other parties hereto, and is the product of all parties hereto.  Accordingly, this Agreement and the other Loan Documents shall not be construed against the Lenders or Agent merely because of Agent’s or Lenders’ involvement in the preparation of such documents and agreements.  Without limiting the generality of the foregoing, each of the parties hereto has had the advice of counsel with respect to Sections 9.18 and 9.19 .

 

9.17                         No Third Parties Benefited .

 

This Agreement is made and entered into for the sole protection and legal benefit of the Borrower, the Lenders, the L/C Issuers party hereto, Agent and, subject to the provisions of Section 8.11 , each other Secured Party, and their permitted successors and assigns, and no other Person shall be a direct or indirect legal beneficiary of, or have any direct or indirect cause of action or claim in connection with, this Agreement or any of the other Loan Documents.  Neither Agent nor any Lender shall have any obligation to any Person not a party to this Agreement or the other Loan Documents.

 

9.18                         Governing Law and Jurisdiction .

 

(a)                                  Governing Law .  The laws of the State of New York shall govern all matters arising out of, in connection with or relating to this Agreement, including, without limitation, its validity, interpretation, construction, performance and enforcement (including, without limitation, any claims sounding in contract or tort law arising out of the subject matter hereof and any determinations with respect to post-judgment interest).

 

(b)                                  Submission to Jurisdiction .  Any legal action or proceeding with respect to any Loan Document shall be brought exclusively in the courts of the State of New York located in the City of New York, Borough of Manhattan, or of the United States of America for the Southern District of New York and, by execution and delivery of this Agreement, the Borrower and each other Credit Party executing this Agreement hereby accepts for itself and in respect of its Property, generally and unconditionally, the jurisdiction of the aforesaid courts; provided that nothing in this Agreement shall limit the right of Agent to commence any proceeding in the federal or state courts of any other jurisdiction to the extent Agent determines that such action is necessary or appropriate to exercise its rights or remedies under the Loan Documents.  The parties hereto (and, to the extent set forth in any other Loan Document, each other Credit Party) hereby irrevocably waive any objection, including any objection to the laying of venue or based on the grounds of forum non conveniens, that any of them may now or hereafter have to the bringing of any such action or proceeding in such jurisdictions.

 

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(c)                                   Service of Process .  Each Credit Party hereby irrevocably waives personal service of any and all legal process, summons, notices and other documents and other service of process of any kind and consents to such service in any suit, action or proceeding brought in the United States of America with respect to or otherwise arising out of or in connection with any Loan Document by any means permitted by applicable Requirements of Law, including by the mailing thereof (by registered or certified mail, postage prepaid) to the address of the Borrower specified herein (and shall be effective when such mailing shall be effective, as provided therein).  Each Credit Party agrees that a final judgment in any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law.  Nothing contained in this Section 9.18 shall affect the right of Agent or any Lender to serve process in any other manner permitted by applicable Requirements of Law.

 

9.19                         WAIVER OF JURY TRIAL .

 

THE PARTIES HERETO, TO THE EXTENT PERMITTED BY LAW, WAIVE ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, SUIT, OR PROCEEDING ARISING OUT OF, IN CONNECTION WITH OR RELATING TO, THIS AGREEMENT, THE OTHER LOAN DOCUMENTS AND ANY OTHER TRANSACTION CONTEMPLATED HEREBY AND THEREBY.  THIS WAIVER APPLIES TO ANY ACTION, SUIT OR PROCEEDING WHETHER SOUNDING IN TORT, CONTRACT OR OTHERWISE.

 

9.20                         ENTIRE AGREEMENT; RELEASE; SURVIVAL .

 

(a)                                  THE LOAN DOCUMENTS EMBODY THE ENTIRE AGREEMENT OF THE PARTIES AND SUPERSEDE ALL PRIOR AGREEMENTS AND UNDERSTANDINGS RELATING TO THE SUBJECT MATTER THEREOF AND ANY PRIOR LETTER OF INTEREST, COMMITMENT LETTER, CONFIDENTIALITY AND SIMILAR AGREEMENTS INVOLVING ANY CREDIT PARTY AND ANY LENDER OR ANY L/C ISSUER OR ANY OF THEIR RESPECTIVE AFFILIATES RELATING TO A FINANCING OF SUBSTANTIALLY SIMILAR FORM, PURPOSE OR EFFECT OTHER THAN THE FEE LETTER.  IN THE EVENT OF ANY CONFLICT BETWEEN THE TERMS OF THIS AGREEMENT AND ANY OTHER LOAN DOCUMENT, THE TERMS OF THIS AGREEMENT SHALL GOVERN (UNLESS OTHERWISE EXPRESSLY STATED IN SUCH OTHER LOAN DOCUMENT OR SUCH TERMS OF SUCH OTHER LOAN DOCUMENTS ARE NECESSARY TO COMPLY WITH APPLICABLE REQUIREMENTS OF LAW, IN WHICH CASE SUCH TERMS SHALL GOVERN TO THE EXTENT NECESSARY TO COMPLY THEREWITH).

 

(b)                                  Execution of this Agreement by the Credit Parties constitutes a full, complete and irrevocable release of any and all claims which each Credit Party may have at law or in equity in respect of all prior discussions and understandings, oral or written, relating to the subject matter of this Agreement and the other Loan Documents.  In no event shall any Indemnitee be liable on any theory of liability for any special, indirect, consequential or punitive damages (including any loss of profits, business or anticipated savings).  Each of the Borrower and each other Credit Party signatory hereto hereby waives, releases and agrees (and shall cause each other Credit Party to waive, release and agree) not to sue upon any such claim for any

 

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special, indirect, consequential or punitive damages, whether or not accrued and whether or not known or suspected to exist in its favor.

 

(c)                                   (i) Any indemnification or other protection provided to any Indemnitee pursuant to this Section 9.20 , Sections 9.5 (Costs and Expenses) and 9.6 (Indemnity) and Article VIII (Agent) and Article X (Taxes, Yield Protection and Illegality) and (ii) the provisions of Section 8.1 of the Guaranty and Security Agreement, in each case, shall (x) survive the termination of the Commitments and the payment in full of all other Obligations and (y) with respect to clause (i)  above, inure to the benefit of any Person that at any time held a right thereunder (as an Indemnitee or otherwise) and, thereafter, its successors and permitted assigns.

 

9.21                         Patriot Act .

 

Each Lender that is subject to the Patriot Act hereby notifies the Credit Parties that pursuant to the requirements of the Patriot Act, it is required to obtain, verify and record information that identifies each Credit Party, which information includes the name and address of each Credit Party and other information that will allow such Lender to identify each Credit Party in accordance with the Patriot Act.

 

9.22                         Replacement of Lender .

 

Within forty-five days after:  (i) receipt by the Borrower of written notice and demand from any Lender that is not Agent or an Affiliate of Agent (an “ Affected Lender ”) for payment of additional costs as provided in Sections 10.1 , 10.3 and/or 10.6 ; or (ii) any failure by any Lender (other than Agent or an Affiliate of Agent) to consent to a requested amendment, waiver or modification to any Loan Document in which Required Lenders have already consented to such amendment, waiver or modification but the consent of each Lender (or each Lender directly affected thereby, as applicable) is required with respect thereto, the Borrower may, at its option, notify Agent and such Affected Lender (or such non-consenting Lender) of the Borrower’s intention to obtain, at the Borrower’s expense, a replacement Lender (“ Replacement Lender ”) for such Affected Lender (or such non-consenting Lender), which Replacement Lender shall be reasonably satisfactory to Agent.  In the event the Borrower obtains a Replacement Lender within forty-five (45) days following notice of its intention to do so, the Affected Lender (or such non-consenting Lender) shall sell and assign its Loans and Commitments to such Replacement Lender, at par, provided that the Borrower has reimbursed such Affected Lender for its increased costs for which it is entitled to reimbursement under this Agreement through the date of such sale and assignment.  In the event that a replaced Lender does not execute an Assignment pursuant to Section 9.9 within five (5) Business Days after receipt by such replaced Lender of notice of replacement pursuant to this Section 9.22 and presentation to such replaced Lender of an Assignment evidencing an assignment pursuant to this Section 9.22 , the Borrower shall be entitled (but not obligated) to execute such an Assignment on behalf of such replaced Lender, and any such Assignment so executed by the Borrower, the Replacement Lender and Agent, shall be effective for purposes of this Section 9.22 and Section 9.9 .  Notwithstanding the foregoing, with respect to a Lender that is a Non-Funding Lender or an Impacted Lender, Agent may, but shall not be obligated to, obtain a Replacement Lender and execute an Assignment on behalf of such Non-Funding Lender or Impacted Lender at any time with three (3) Business Days’ prior notice to such Lender (unless notice is not practicable under the circumstances) and

 

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cause such Lender’s Loans and Commitments to be sold and assigned, in whole or in part, at par.  Upon any such assignment and payment and compliance with the other provisions of Section 9.9 , such replaced Lender shall no longer constitute a “Lender” for purposes hereof; provided , any rights of such replaced Lender to indemnification hereunder shall survive.

 

9.23                         Joint and Several .

 

The obligations of the Credit Parties hereunder and under the other Loan Documents are joint and several.

 

9.24                         Creditor-Debtor Relationship .

 

The relationship between Agent, each Lender and the L/C Issuer, on the one hand, and the Credit Parties, on the other hand, is solely that of creditor and debtor.  No Secured Party has any fiduciary relationship or duty to any Credit Party arising out of or in connection with, and there is no agency, tenancy or joint venture relationship between the Secured Parties and the Credit Parties by virtue of, any Loan Document or any transaction contemplated therein.

 

9.25                         Actions in Concert .

 

Notwithstanding anything contained herein to the contrary, each Lender hereby agrees with each other Lender that no Lender shall take any action to protect or enforce its rights against any Credit Party arising out of this Agreement or any other Loan Document (including exercising any rights of setoff) without first obtaining the prior written consent of Agent or Required Lenders, it being the intent of Lenders that any such action to protect or enforce rights under this Agreement and the other Loan Documents shall be taken in concert and at the direction or with the consent of Agent or Required Lenders.

 

9.26                         Keepwell .

 

Each Qualified ECP Guarantor hereby jointly and severally absolutely, unconditionally and irrevocably undertakes to provide such funds or other support as may be needed from time to time by each other Credit Party to honor all of its obligations under the Guaranty and Security Agreement in respect of Swap Obligations under any Secured Rate Contract (provided, however, that each Qualified ECP Guarantor shall only be liable under this Section 9.26 for the maximum amount of such liability that can be hereby incurred without rendering its obligations under this Section 9.26, or otherwise under the Guaranty and Security Agreement, voidable under applicable Requirements of Law relating to fraudulent conveyance or fraudulent transfer, and not for any greater amount). The obligations of each Qualified ECP Guarantor under this Section 9.26 shall remain in full force and effect until the guarantees in respect of Swap Obligations under each Secured Rate Contract have been discharged, or otherwise released or terminated in accordance with the terms of this Agreement. Each Qualified ECP Guarantor intends that this Section 9.26 constitute, and this Section 9.26 shall be deemed to constitute, a “keepwell, support, or other agreement” for the benefit of each other Credit Party for all purposes of Section 1a(18)(A)(v)(II) of the Commodity Exchange Act.

 

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ARTICLE X.
TAXES, YIELD PROTECTION AND ILLEGALITY

 

10.1                         Taxes .

 

(a)                                  Except as otherwise provided in this Section 10.1 , each payment by any Credit Party under any Loan Document shall be made free and clear of all present or future taxes, levies, imposts, deductions, charges or withholdings imposed by any Governmental Authority and all liabilities with respect thereto (and without deduction for any of them) (collectively, but excluding Excluded Taxes, the “ Taxes ”).

 

(b)                                  If any Taxes shall be required by any Requirement of Law to be deducted from or in respect of any amount payable under any Loan Document to any Secured Party (i) such amount shall be increased as necessary to ensure that, after all required deductions for Taxes are made (including deductions applicable to any increases to any amount under this Section 10.1 ), such Secured Party receives the amount it would have received had no such deductions been made, (ii) the relevant Credit Party shall make such deductions, (iii) the relevant Credit Party shall timely pay the full amount deducted to the relevant taxing authority or other authority in accordance with applicable Requirements of Law and (iv) within 30 days after such payment is made, the relevant Credit Party shall deliver to Agent an original or certified copy of a receipt evidencing such payment or other evidence of payment reasonably satisfactory to Agent.

 

(c)                                   In addition, the Borrower agrees to pay, and authorize Agent to pay in their name, any stamp, documentary, excise or property tax, charges or similar levies imposed by any applicable Requirement of Law or Governmental Authority and all Liabilities with respect thereto (including by reason of any delay in payment thereof), in each case arising from the execution, delivery or registration of, or otherwise with respect to, any Loan Document or any transaction contemplated therein (collectively, “ Other Taxes ”).  The Swingline Lender may, without any need for notice, demand or consent from the Borrower, by making funds available to Agent in the amount equal to any such payment, make a Swing Loan to the Borrower in such amount, the proceeds of which shall be used by Agent in whole to make such payment.  Within 30 days after the date of any payment of Other Taxes by any Credit Party, the Borrower shall furnish to Agent, at its address referred to in Section 9.2 , the original or a certified copy of a receipt evidencing payment thereof or other evidence of payment reasonably satisfactory to Agent.

 

(d)                                  The Borrower shall reimburse and indemnify, within 30 days after receipt of demand therefor (with copy to Agent), each Secured Party for all Taxes and Other Taxes (including any Taxes and Other Taxes imposed by any jurisdiction on amounts payable under this Section 10.1 ) paid by such Secured Party and any Liabilities arising therefrom or with respect thereto, whether or not such Taxes or Other Taxes were correctly or legally asserted.  A certificate of the Secured Party (or of Agent on behalf of such Secured Party) claiming any compensation under this Section 10.1(d) , setting forth the amounts to be paid thereunder and delivered to the Borrower with copy to Agent, shall be conclusive, binding and final for all purposes, absent manifest error.  In determining such amount, Agent and such Secured Party may use any reasonable averaging and attribution methods.

 

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(e)                                   Any Lender claiming any additional amounts payable pursuant to this Section 10.1 shall use its commercially reasonable efforts (consistent with its internal policies and Requirements of Law) to change the jurisdiction of its Lending Office if such a change would reduce any such additional amounts (or any similar amount that may thereafter accrue) and would not, in the sole determination of such Lender, be otherwise disadvantageous to such Lender.

 

(f)                                    (i)                                      Each Non-U.S. Lender Party that, at any of the following times, is entitled to an exemption from United States withholding tax or is subject to such withholding tax at a reduced rate under an applicable tax treaty, shall (w) on or prior to the date such Non-U.S. Lender Party becomes a “Non-U.S. Lender Party” hereunder, (x) on or prior to the date on which any such form or certification expires or becomes obsolete, (y) after the occurrence of any event requiring a change in the most recent form or certification previously delivered by it pursuant to this Section 10.1(f)(i)  and (z) from time to time if requested by the Borrower or Agent (or, in the case of a participant or SPV, the relevant Lender), provide Agent and the Borrower (or, in the case of a participant or SPV, the relevant Lender) with two completed originals of each of the following, as applicable:  (A) Forms W-8ECI (claiming exemption from U.S. withholding tax because the income is effectively connected with a U.S. trade or business), W-8BEN (claiming exemption from, or a reduction of, U.S. withholding tax under an income tax treaty) and/or W-8IMY (together with appropriate forms, certifications and supporting statements) or any successor forms, (B) in the case of a Non-U.S. Lender Party claiming exemption under Sections 871(h) or 881(c) of the Code, Form W-8BEN (claiming exemption from U.S. withholding tax under the portfolio interest exemption) or any successor form and a certificate in form and substance acceptable to Agent that such Non-U.S. Lender Party is not (1) a “bank” within the meaning of Section 881(c)(3)(A) of the Code, (2) a “10 percent shareholder” of the Borrower within the meaning of Section 881(c)(3)(B) of the Code or (3) a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code or (C) any other applicable document prescribed by the IRS certifying as to the entitlement of such Non-U.S. Lender Party to such exemption from United States withholding tax or reduced rate with respect to all payments to be made to such Non-U.S. Lender Party under the Loan Documents.  Unless the Borrower and Agent have received forms or other documents satisfactory to them indicating that payments under any Loan Document to or for a Non-U.S. Lender Party are not subject to United States withholding tax or are subject to such tax at a rate reduced by an applicable tax treaty, the Credit Parties and Agent shall withhold amounts required to be withheld by applicable Requirements of Law from such payments at the applicable statutory rate.

 

(ii)                                   Each U.S. Lender Party shall (A) on or prior to the date such U.S. Lender Party becomes a “U.S. Lender Party” hereunder, (B) on or prior to the date on which any such form or certification expires or becomes obsolete, (C) after the occurrence of any event requiring a change in the most recent form or certification previously delivered by it pursuant to this Section 10.1(f)  and (D) from time to time if requested by the Borrower or Agent (or, in the case of a participant or SPV, the relevant Lender), provide Agent and the Borrower (or, in the case of a participant or SPV, the relevant Lender) with two completed originals of Form W-9 (certifying that such U.S. Lender Party is entitled to an exemption from U.S. backup withholding tax) or any successor form.

 

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(iii)                                Each Lender having sold a participation in any of its Obligations or identified an SPV as such to Agent shall collect from such participant or SPV the documents described in this Section 10.1(f)  and provide them to Agent.

 

(iv)                               If a payment made to a Non-U.S. Lender Party would be subject to United States federal withholding tax imposed by FATCA if such Non-U.S. Lender Party fails to comply with the applicable reporting requirements of FATCA, such Non-U.S. Lender Party shall deliver to Agent and the Borrower any documentation under any Requirement of Law or reasonably requested by Agent or the Borrower sufficient for Agent or the Borrower to comply with their obligations under FATCA and to determine that such Non-U.S. Lender has complied with such applicable reporting requirements.

 

10.2                         Illegality .

 

If after the date hereof any Lender shall determine that the introduction of any Requirement of Law, or any change in any Requirement of Law or in the interpretation or administration thereof, has made it unlawful, or that any central bank or other Governmental Authority has asserted that it is unlawful, for any Lender or its Lending Office to make LIBOR Rate Loans, then, on notice thereof by such Lender to the Borrower through Agent, the obligation of that Lender to make LIBOR Rate Loans shall be suspended until such Lender shall have notified Agent and the Borrower that the circumstances giving rise to such determination no longer exists.

 

(a)                                  Subject to Section 10.2(c)  below, if any Lender shall determine that it is unlawful to maintain any LIBOR Rate Loan, the Borrower shall prepay in full all LIBOR Rate Loans of such Lender then outstanding, together with interest accrued thereon, either on the last day of the Interest Period thereof if such Lender may lawfully continue to maintain such LIBOR Rate Loans to such day, or immediately, if such Lender may not lawfully continue to maintain such LIBOR Rate Loans, together with any amounts required to be paid in connection therewith pursuant to Section 10.4 .

 

(b)                                  If the obligation of any Lender to make or maintain LIBOR Rate Loans has been terminated, the Borrower may elect, by giving notice to such Lender through Agent that all Loans which would otherwise be made by any such Lender as LIBOR Rate Loans shall be instead Base Rate Loans.

 

(c)                                   Before giving any notice to Agent pursuant to this Section 10.2 , the affected Lender shall designate a different Lending Office with respect to its LIBOR Rate Loans if such designation will avoid the need for giving such notice or making such demand and will not, in the judgment of such Lender, be illegal or otherwise disadvantageous to such Lender.

 

10.3                         Increased Costs and Reduction of Return .

 

(a)                                  If any Lender or L/C Issuer shall determine that, due to either (i) the introduction of, or any change in, or in the interpretation of, any Requirement of Law or (ii) the compliance with any guideline or request from any central bank or other Governmental Authority (whether or not having the force of law), in the case of either clause (i)  or (ii)  above subsequent to the date hereof, there shall be any increase in the cost to such Lender or L/C Issuer

 

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of agreeing to make or making, funding or maintaining any LIBOR Rate Loans or of issuing or maintaining any Letter of Credit, then the Borrower shall be liable for, and shall from time to time, within thirty (30) days of demand therefor by such Lender or L/C Issuer (with a copy of such demand to Agent), pay to Agent for the account of such Lender or L/C Issuer, additional amounts as are sufficient to compensate such Lender or L/C Issuer for such increased costs; provided , that the Borrower shall not be required to compensate any Lender or L/C Issuer pursuant to this Section 10.3(a)  for any increased costs incurred more than 180 days prior to the date that such Lender or L/C Issuer notifies the Borrower, in writing of the increased costs and of such Lender’s or L/C Issuer’s intention to claim compensation thereof; provided , further , that if the circumstance giving rise to such increased costs is retroactive, then the 180-day period referred to above shall be extended to include the period of retroactive effect thereof.

 

(b)                                  If any Lender or L/C Issuer shall have determined that:

 

(i)                                      the introduction of any Capital Adequacy Regulation;

 

(ii)                                   any change in any Capital Adequacy Regulation;

 

(iii)                                any change in the interpretation or administration of any Capital Adequacy Regulation by any central bank or other Governmental Authority charged with the interpretation or administration thereof; or

 

(iv)                               compliance by such Lender or L/C Issuer (or its Lending Office) or any entity controlling such Lender or L/C Issuer, with any Capital Adequacy Regulation;

 

affects the amount of capital required or expected to be maintained by such Lender or L/C Issuer or any entity controlling such Lender or L/C Issuer and (taking into consideration such Lender’s or such entities’ policies with respect to capital adequacy and such Lender’s or L/C Issuer’s desired return on capital) determines that the amount of such capital is increased as a consequence of its Commitment(s), loans, credits or obligations under this Agreement, then, within thirty (30) days of demand of such Lender or L/C Issuer (with a copy to Agent), the Borrower shall pay to such Lender or L/C Issuer, from time to time as specified by such Lender or L/C Issuer, additional amounts sufficient to compensate such Lender or L/C Issuer (or the entity controlling the Lender or L/C Issuer) for such increase; provided , that the Borrower shall not be required to compensate any Lender or L/C Issuer pursuant to this Section 10.3(b)  for any amounts incurred more than 180 days prior to the date that such Lender or L/C Issuer notifies the Borrower, in writing of the amounts and of such Lender’s or L/C Issuer’s intention to claim compensation thereof; provided , further , that if the event giving rise to such increase is retroactive, then the 180-day period referred to above shall be extended to include the period of retroactive effect thereof.

 

(c)                                   Notwithstanding anything herein to the contrary, (i) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith and (ii) all requests, rules, guidelines and directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision or any successor or similar authority shall, in each case, be deemed to be a change in

 

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a Requirement of Law under Section 10.3(a)  and/or a change in a Capital Adequacy Regulation under Section 10.3(b)  above, as applicable, regardless of the date enacted, adopted or issued.

 

10.4                         Funding Losses .

 

The Borrower agrees to reimburse each Lender and to hold each Lender harmless from any loss or expense which such Lender may sustain or incur as a consequence of:

 

(a)                                  the failure of the Borrower to make any payment or mandatory prepayment of principal of any LIBOR Rate Loan (including payments made after any acceleration thereof);

 

(b)                                  the failure of the Borrower to borrow, continue or convert a Loan after it has given (or is deemed to have given) a Notice of Borrowing or a Notice of Conversion/Continuation;

 

(c)                                   the failure of the Borrower to make any prepayment after it has given a notice in accordance with Section 1.7 ;

 

(d)                                  the prepayment (including pursuant to Section 1.8 ) of a LIBOR Rate Loan on a day which is not the last day of the Interest Period with respect thereto; or

 

(e)                                   the conversion pursuant to Section 1.6 of any LIBOR Rate Loan to a Base Rate Loan on a day that is not the last day of the applicable Interest Period;

 

including any such loss or expense arising from the liquidation or reemployment of funds obtained by it to maintain its LIBOR Rate Loans hereunder or from fees payable to terminate the deposits from which such funds were obtained; provided that, with respect to the expenses described in Section 10.4(d)  and (e) , such Lender shall have notified Agent of any such expense within two (2) Business Days of the date on which such expense was incurred.  Solely for purposes of calculating amounts payable by the Borrower to the Lenders under this Section 10.4 and under Section 10.3(a) :  each LIBOR Rate Loan made by a Lender (and each related reserve, special deposit or similar requirement) shall be conclusively deemed to have been funded at the LIBOR used in determining the interest rate for such LIBOR Rate Loan by a matching deposit or other borrowing in the interbank Eurodollar market for a comparable amount and for a comparable period, whether or not such LIBOR Rate Loan is in fact so funded.

 

10.5                         Inability to Determine Rates .

 

If Agent shall have determined in good faith that for any reason adequate and reasonable means do not exist for ascertaining the LIBOR for any requested Interest Period with respect to a proposed LIBOR Rate Loan or that the LIBOR applicable pursuant to Section 1.3(a)  for any requested Interest Period with respect to a proposed LIBOR Rate Loan does not adequately and fairly reflect the cost to the Lenders of funding or maintaining such Loan, Agent will forthwith give notice of such determination to the Borrower and each Lender.  Thereafter, the obligation of the Lenders to make or maintain LIBOR Rate Loans hereunder shall be suspended until Agent revokes such notice in writing.  Upon receipt of such notice, the Borrower may revoke any Notice of Borrowing or Notice of Conversion/Continuation then submitted by it.  If the Borrower

 

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does not revoke such notice, the Lenders shall make, convert or continue the Loans, as proposed by the Borrower, in the amount specified in the applicable notice submitted by the Borrower, but such Loans shall be made, converted or continued as Base Rate Loans.

 

10.6                         Reserves on LIBOR Rate Loans .

 

The Borrower shall pay to each Lender, as long as such Lender shall be required under regulations of the Federal Reserve Board to maintain reserves with respect to liabilities or assets consisting of or including Eurocurrency funds or deposits (currently known as “ Eurocurrency liabilities ”), additional costs on the unpaid principal amount of each LIBOR Rate Loan equal to actual costs of such reserves allocated to such Loan by such Lender (as determined by such Lender in good faith, which determination shall be conclusive absent manifest error), payable on each date on which interest is payable on such Loan provided the Borrower shall have received at least fifteen (15) days’ prior written notice (with a copy to Agent) of such additional interest from the Lender.  If a Lender fails to give notice fifteen (15) days prior to the relevant Interest Payment Date, such additional interest shall be payable fifteen (15) days from receipt of such notice.

 

10.7                         Certificates of Lenders .

 

Any Lender claiming reimbursement or compensation pursuant to this Article X shall deliver to the Borrower (with a copy to Agent) a certificate setting forth in reasonable detail the amount payable to such Lender hereunder and such certificate shall be conclusive and binding on the Borrower in the absence of manifest error.

 

ARTICLE XI.
DEFINITIONS

 

11.1                         Defined Terms .

 

The following terms are defined in the Sections referenced opposite such terms:

 

“Affected Lender”

 

9.22

“Agent Report”

 

8.5(c)

“Aggregate Excess Funding Amount”

 

1.11(e)(iv)

“Borrower”

 

Preamble

“Borrower Materials”

 

9.10(e)

“Controlled Collateral Account”

 

4.11(a)

“EBITDA”

 

Exhibit 4.2(b)

“Eligible Accounts”

 

1.13

“Eligible Inventory”

 

1.14

“Event of Default”

 

7.1

“Excess Cash Flow”

 

Exhibit 4.2(b)

“Fee Letter”

 

1.9(a)

“Fixed Charge Coverage Ratio”

 

Exhibit 4.2(b)

“Incremental Facility”

 

1.1(e)

“Indemnified Matters”

 

9.6(a)

“Indemnitees”

 

9.6

 

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“Interest Expense”

 

Exhibit 4.2(b)

“Investments”

 

5.4

“L/C Reimbursement Agreement”

 

1.1(c)(i)(C)

“L/C Reimbursement Date”

 

1.1(c)(v)

“L/C Request”

 

1.1(c)(ii)

“L/C Sublimit”

 

1.1(c)(i)(A)

“Lender”

 

Preamble

“Letter of Credit Fee”

 

1.9(c)

“Maximum Revolving Loan Balance”

 

1.1(b)(i)

“Maximum Lawful Rate”

 

1.3(d)

“MNPI”

 

9.10(a)

“Notice of Conversion/Continuation”

 

1.6(a)

“OFAC”

 

3.28

“Other Taxes”

 

10.1(c)

“Permitted Liens”

 

5.1

“Register”

 

1.4(b)

“Restricted Payments”

 

5.11

“Replacement Lender”

 

9.22

“Revolving Loan Commitment”

 

1.1(b)(i)

“Revolving Loan”

 

1.1(b)(i)

“Sale”

 

9.9(b)

“SDN List”

 

3.28

“Settlement Date”

 

1.11(b)

“Swing Loan”

 

1.1(d)(i)

“Swingline Request”

 

1.1(d)(ii)

“Tax Returns”

 

3.10

“Taxes”

 

10.1(a)

“Unused Commitment Fee”

 

1.9(b)

 

In addition to the terms defined elsewhere in this Agreement, the following terms have the following meanings:

 

Account ” means, as at any date of determination, all “accounts” (as such term is defined in the UCC) of the Credit Parties, including, without limitation, the unpaid portion of the obligation of a customer of a Credit Party in respect of Inventory purchased by and shipped to such customer and/or the rendition of services by a Credit Party, as stated on the respective invoice of a Credit Party, net of any credits, rebates or offsets owed to such customer.

 

Account Debtor ” means the customer of a Credit Party who is obligated on or under an Account.

 

Acquisition ” means any transaction or series of related transactions for the purpose of or resulting, directly or indirectly, in (a) the acquisition of all or substantially all of the assets of a Person, or of any business or division of a Person, (b) the acquisition of in excess of fifty percent (50%) of the Stock and Stock Equivalents of any Person or otherwise causing any Person to become a Subsidiary of the Borrower, or (c) a merger or consolidation or any other combination with another Person.

 

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Affiliate ” means, with respect to any Person, each officer, director, general partner or joint-venturer of such Person and any other Person that directly or indirectly controls, controlled by, or is under common control with, such Person; provided , however , that no Secured Party shall be an Affiliate of any Credit Party or of any Subsidiary of any Credit Party solely by reason of the provisions of the Loan Documents.  For purposes of this definition, “control” means the possession of either (a) the power to vote, or the beneficial ownership of, 10% or more of the voting Stock of such Person (either directly or through the ownership of Stock Equivalents) or (b) the power to direct or cause the direction of the management and policies of such Person, whether through the ownership of voting securities, by contract or otherwise.

 

Agent ” means GE Capital in its capacity as administrative agent for the Lenders hereunder, and any successor administrative agent.

 

Aggregate Revolving Loan Commitment ” means the combined Revolving Loan Commitments of the Lenders, which as of the Closing Date shall be in the amount of $120,000,000, as such amount may be adjusted from time to time pursuant to this Agreement.

 

AHF ” means American Homecare Federation, Inc., a Connecticut corporation.

 

AHF Acquisition ” means the Acquisition by Borrower of all of the outstanding Stock of AHF pursuant to the AHF Acquisition Agreement.

 

AHF Acquisition Agreement ” means that certain Stock Purchase Agreement dated as of December 16, 2013, by and among Borrower, AHF and the stockholders of AHF party thereto.

 

AHF Acquisition Documents ” means, collectively, the AHF Acquisition Agreement, and all other agreements and documents required to be entered into or delivered pursuant thereto or in connection with the AHF Acquisition, each in the form delivered to the Agent, and as may be amended, modified or supplemented from time to time as permitted hereunder.

 

AHF Earnout ” means the “Contingent Payments”, if any, payable to the former shareholders of AHF under the AHF Acquisition Agreement.

 

AmerisourceBergen ” means AmerisourceBergen Drug Corporation, a Delaware corporation.

 

AmerisourceBergen Vendor Contract ” means the contracts giving rise to the AmerisourceBergen Indebtedness or pursuant to which a Lien is granted by Borrower or any Subsidiary in favor AmerisourceBergen, including but not limited to the Prime Vendor Agreement dated as of January 1, 2012 among Borrower, the other Credit Parties party thereto and AmerisourceBergen and the Credit Agreement dated July 13, 2010 among Borrower, the other Credit Parties party thereto and AmerisourceBergen.

 

AmerisourceBergen Indebtedness ” has the meaning provided in the AmerisourceBergen Intercreditor Agreement.

 

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AmerisourceBergen Intercreditor Agreement ” means the Intercreditor Agreement dated on or about the Original Closing Date, between AmerisourceBergen and Agent, as amended or modified from time to time.

 

AmerisourceBergen Inventory Collateral ” has the meaning provided in the AmerisourceBergen Intercreditor Agreement.

 

Applicable Margin ” means with respect to Revolving Loans and Swing Loans:  (i) if a Base Rate Loan, three quarters of one percent (0.75%) per annum and (ii) if a LIBOR Rate Loan, one and three quarters percent (1.75%) per annum.  Notwithstanding anything herein to the contrary, Swing Loans may not be LIBOR Rate Loans.

 

Approved Fund ” means, with respect to any Lender, any Person (other than a natural Person) that (a) (i) is or will be engaged in making, purchasing, holding or otherwise investing in commercial loans and similar extensions of credit in the Ordinary Course of Business or (ii) temporarily warehouses loans for any Lender or any Person described in clause (i)  above and (b) is advised or managed by (i) such Lender, (ii) any Affiliate of such Lender or (iii) any Person (other than an individual) or any Affiliate of any Person (other than an individual) that administers or manages such Lender.

 

Assignment ” means an assignment agreement entered into by a Lender, as assignor, and any Person, as assignee, pursuant to the terms and provisions of Section 9.9 (with the consent of any party whose consent is required by Section 9.9 ), accepted by Agent, substantially in the form of Exhibit 11.1(a)  or any other form approved by Agent.

 

Attorney Costs ” means and includes all fees and disbursements of any law firm or other external counsel.

 

Availability ” means, as of any date of determination, the amount by which (a) the Maximum Revolving Loan Balance, exceeds (b) the aggregate outstanding principal balance of Revolving Loans; provided that, solely for the purposes of calculating average daily Availability under Sections 4.9, 5.11 and 6.1 and clause (f) of the definition of Permitted Acquisition, “Availability” means, as of any date of determination, the amount by which (i) the Maximum Revolving Loan Balance exceeds (ii) the aggregate outstanding principal balance of Revolving Loans minus the aggregate amount on deposit in the Controlled Collateral Account at the end of such date of determination to the extent applied to the outstanding principal balance of Revolving Loans on the next Business Day.

 

Bank Products ” means any of the following provided to any Credit Party by any Lender or an Affiliate of any Lender:  (a) lockbox, depository or disbursement services, automatic clearing house transfer of funds, overdrafts, and other cash management services and (b) commercial credit cards and stored value cards.

 

Bankruptcy Code ” means the Federal Bankruptcy Reform Act of 1978.

 

Base Rate ” means, for any day, a rate per annum equal to the highest of (a) the rate last quoted by The Wall Street Journal as the “Prime Rate” in the United States or, if The Wall Street Journal ceases to quote such rate, the highest per annum interest rate published by the Federal

 

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Reserve Board in Federal Reserve Statistical Release H.15 (519) (Selected Interest Rates) as the “bank prime loan” rate or, if such rate is no longer quoted therein, any similar rate quoted therein (as determined by Agent) or any similar release by the Federal Reserve Board (as determined by Agent), (b) the sum of 0.50% per annum and the Federal Funds Rate, and (c) the sum of (x) LIBOR calculated for each such day based on an Interest Period of one month determined two (2) Business Days prior to such day, plus (y) the excess of the Applicable Margin for LIBOR Rate Loans over the Applicable Margin for Base Rate Loans, in each instance, as of such day.  Any change in the Base Rate due to a change in any of the foregoing shall be effective on the effective date of such change in the Federal Funds Rate or LIBOR for an Interest Period of three months.

 

Base Rate Loan ” means a Loan that bears interest based on the Base Rate.

 

Benefit Plan ” means any employee benefit plan as defined in Section 3(3) of ERISA (whether governed by the laws of the United States or otherwise) to which any Credit Party incurs or otherwise has any obligation or liability, contingent or otherwise.

 

Borrowing ” means a borrowing hereunder consisting of Loans made to or for the benefit of the Borrower on the same day by the Lenders pursuant to Article I .

 

Borrowing Base ” means, as of any date of determination by Agent, from time to time, an amount equal to the sum at such time of:

 

(a)                                  85% of the book value of Eligible Accounts at such time; and

 

(b)                                  on and after the Eligible Inventory Inclusion Date, the lowest of (i) 65% of the book value of Eligible Inventory valued at the lower of cost or market on a first-in, first-out basis, (ii) the book value of Eligible Inventory multiplied by the NOLV Factor multiplied by 85% and (iii) the Inventory Sublimit.

 

in each case less Reserves established by Agent at such time in its Permitted Discretion.

 

Borrowing Base Certificate ” means a certificate of the Borrower, on behalf of each Credit Party, in substantially the form of Exhibit 11.1(b)  hereto, duly completed as of a date acceptable to Agent in its sole discretion.

 

Business Day ” means any day that is not a Saturday, Sunday or a day on which banks are required or authorized to close in New York City and, when determined in connection with notices and determinations in respect of LIBOR or any LIBOR Rate Loan or any funding, conversion, continuation, Interest Period or payment of any LIBOR Rate Loan, that is also a day on which dealings in Dollar deposits are carried on in the London interbank market.

 

Capital Adequacy Regulation ” means any guideline, request or directive of any central bank or other Governmental Authority, or any other law, rule or regulation, whether or not having the force of law, in each case, regarding capital adequacy of any Lender or of any corporation controlling a Lender.

 

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Capital Lease ” means, with respect to any Person, any lease of, or other arrangement conveying the right to use, any Property by such Person as lessee that has been or should be accounted for as a capital lease on a balance sheet of such Person prepared in accordance with GAAP.

 

Capital Lease Obligations ” means, at any time, with respect to any Capital Lease, any lease entered into as part of any sale leaseback transaction of any Person or any synthetic lease, the amount of all obligations of such Person that is (or that would be, if such synthetic lease or other lease were accounted for as a Capital Lease) capitalized on a balance sheet of such Person prepared in accordance with GAAP.

 

Cash Equivalents ” means (a) any readily-marketable securities (i) issued by, or directly, unconditionally and fully guaranteed or insured by the United States federal government or (ii) issued by any agency of the United States federal government the obligations of which are fully backed by the full faith and credit of the United States federal government, (b) any readily-marketable direct obligations issued by any other agency of the United States federal government, any state of the United States or any political subdivision of any such state or any public instrumentality thereof, in each case having a rating of at least “A-1” from S&P or at least “P-1” from Moody’s, (c) any commercial paper rated at least “ A-1 ” by S&P or “ P-1 ” by Moody’s and issued by any Person organized under the laws of any state of the United States, (d) any Dollar-denominated time deposit, insured certificate of deposit, overnight bank deposit or bankers’ acceptance issued or accepted by (i) any Lender or (ii) any commercial bank that is (A) organized under the laws of the United States, any state thereof or the District of Columbia, (B) “adequately capitalized” (as defined in the regulations of its primary federal banking regulators) and (C) has Tier 1 capital (as defined in such regulations) in excess of $250,000,000 and (e) shares of any United States money market fund that (i) has substantially all of its assets invested continuously in the types of investments referred to in clause (a) , (b) , (c)  or (d)  above with maturities as set forth in the proviso below, (ii) has net assets in excess of $500,000,000 and (iii) has obtained from either S&P or Moody’s the highest rating obtainable for money market funds in the United States; provided , however , that the maturities of all obligations specified in any of clause (a) , (b) , (c)  or (d)  above shall not exceed 365 days.

 

CHAMPVA ” means, collectively, the Civilian Health and Medical Program of the Department of Veterans Affairs, a program of medical benefits covering retirees and dependents of former members of the armed services administered by the United States Department of Veterans Affairs, and all laws, rules, regulations, manuals, orders, or requirements pertaining to such program.

 

Change of Control ” means an event or series of events by which:

 

(a)                                at any time prior to a Qualified IPO, the Permitted Holders shall cease to own and control, at least 51% of the issued and outstanding Stock of the Borrower (as the same may be adjusted for any combination, recapitalization or reclassification into a greater or smaller number of shares, interests or other unit of equity security), or in any event, Stock representing voting control of the Borrower, free and clear of all Liens, rights, options, warrants or other similar agreements or understandings, other than Liens in favor of Agent, for the benefit of the Secured Parties;

 

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(b)                                at any time after a Qualified IPO, any “person” or “group” (within the meaning of Rule 13d-5 of the Securities Exchange Act of 1934) other than Permitted Holders shall own or control, directly or indirectly, legally and beneficially, Voting Equity Interests representing (x) more than 35% of the Voting Equity Interests of the Borrower and (y) a greater percentage of the Voting Equity Interests of the Borrower than is then owned, legally and beneficially, directly or indirectly, by the Permitted Holders; or

 

(c)                                 a majority of the seats on the Borrower’s board of directors (or similar governing body) (other than vacant seats) is or becomes occupied by individuals who were neither (x) nominated by the board of directors (or similar governing body) of the Borrower or by the Permitted Holders nor (y) appointed by directors so nominated or by members of the board of directors (or similar governing body or the Permitted Holders) of the Borrower on the Closing Date; or

 

(d)                                any “change of control” or similar event under the Subordinated Indebtedness Documents; or

 

(e)                                 any event occurs which would permit any holder of Series A Preferred Stock to deliver a “Redemption Request” under and as defined in Section 6(a) of the Restated Charter.

 

Closing Date ” means June 26, 2014.

 

CMS ” means The Centers for Medicare and Medicaid Services, which administers the Medicare and Medicaid programs under the Department of Health and Human Services, and any successor thereto.

 

Code ” means the Internal Revenue Code of 1986.

 

Collateral ” means all Property and interests in Property and proceeds thereof now owned or hereafter acquired by any Credit Party, any of their respective Subsidiaries and any other Person who has granted a Lien to Agent, in or upon which a Lien is granted or purported to be granted or now or hereafter exists in favor of any Lender or Agent for the benefit of Agent, Lenders and other Secured Parties, whether under this Agreement or under any other documents executed by any such Persons and delivered to Agent.

 

Collateral Documents ” means, collectively, the Guaranty and Security Agreement, the Mortgages (if any), each Control Agreement, and all other security agreements, pledge agreements, patent and trademark security agreements, lease assignments, guarantees and other similar agreements, and all amendments, restatements, modifications or supplements thereof or thereto, by or between any one or more of any Credit Party, any of their respective Subsidiaries or any other Person pledging or granting a lien on Collateral or guaranteeing the payment and performance of the Obligations, and any Lender or Agent for the benefit of Agent, the Lenders and other Secured Parties now or hereafter delivered to the Lenders or Agent pursuant to or in connection with the transactions contemplated hereby, and all financing statements (or comparable documents now or hereafter filed in accordance with the UCC or comparable law) against any such Person as debtor in favor of any Lender or Agent for the benefit of Agent, the Lenders and the other Secured Parties, as secured party, as any of the foregoing may be amended, restated and/or modified from time to time.

 

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Commitment ” means, for each Lender, its Revolving Loan Commitment.

 

Commitment Percentage ” means, as to any Lender, the percentage equivalent of such Lender’s Revolving Loan Commitment, divided by the Aggregate Revolving Loan Commitment; provided , that following acceleration of the Loans, such term means, as to any Lender, the percentage equivalent of the principal amount of the Loans held by such Lender, divided by the aggregate principal amount of the Loans held by all Lenders.

 

Commodity Exchange Act ” means the Commodity Exchange Act (7 U.S.C. § 1 et seq.).

 

Contingent Obligation ” means, as to any Person, any direct or indirect liability, contingent or otherwise, of that Person:  (a) with respect to any Indebtedness, lease, dividend or other obligation of another Person if the primary purpose or intent of the Person incurring such liability, or the primary effect thereof, is to provide assurance to the obligee of such liability that such liability will be paid or discharged, or that any agreements relating thereto will be complied with, or that the holders of such liability will be protected (in whole or in part) against loss with respect thereto; (b) with respect to any letter of credit issued for the account of that Person or as to which that Person is otherwise liable for reimbursement of drawings; (c) under any Rate Contracts; (d) to make take-or-pay or similar payments if required regardless of nonperformance by any other party or parties to an agreement; or (e) for the obligations of another Person through any agreement to purchase, repurchase or otherwise acquire such obligation or any Property constituting security therefor, to provide funds for the payment or discharge of such obligation or to maintain the solvency, financial condition or any balance sheet item or level of income of another Person.  The amount of any Contingent Obligation shall be equal to the amount of the obligation so guaranteed or otherwise supported or, if not a fixed and determined amount, the maximum amount so guaranteed or supported.

 

Contractual Obligations ” means, as to any Person, any provision of any security (whether in the nature of Stock, Stock Equivalents or otherwise) issued by such Person or of any agreement, undertaking, contract, indenture, mortgage, deed of trust or other instrument, document or agreement (other than a Loan Document) to which such Person is a party or by which it or any of its Property is bound or to which any of its Property is subject.

 

Control Agreement ” means, with respect to any deposit account, securities account, commodity account, securities entitlement or commodity contract, an agreement, in form and substance satisfactory to Agent, among Agent, the financial institution or other Person at which such account is maintained or with which such entitlement or contract is carried and the Credit Party maintaining such account, effective to grant “control” (within the meaning of Articles 8 and 9 under the applicable UCC) over such account to Agent.

 

Conversion Date ” means any date on which the Borrower converts a Base Rate Loan to a LIBOR Rate Loan or a LIBOR Rate Loan to a Base Rate Loan.

 

Copyrights ” means all rights, title and interests (and all related IP Ancillary Rights) arising under any Requirement of Law in or relating to copyrights and all mask work, database and design rights, whether or not registered or published, all registrations and recordations thereof and all applications in connection therewith.

 

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Credit Parties ” means the Borrower and each other Person (i) which executes a guaranty of the Obligations, (ii) which grants a Lien on all or substantially all of its assets to secure payment of the Obligations and (iii) all of the Stock of which is pledged to Agent for the benefit of the Secured Parties.

 

Default ” means any event or circumstance which, with the giving of notice, the lapse of time or both, would (if not cured or otherwise remedied during such time) constitute an Event of Default.

 

Disposition ” means (a) the sale, lease, conveyance or other disposition of Property, other than sales or other dispositions expressly permitted under Sections 5.2(a) , 5.2(c)  and 5.2(d) , and (b) the sale or transfer by the Borrower or any Subsidiary of the Borrower of any Stock or Stock Equivalent issued by any Subsidiary of the Borrower and held by such transferor Person.

 

Dollars ”, “dollars” and “$” each mean lawful money of the United States of America.

 

Domestic Subsidiary ” means any Subsidiary other than a Foreign Subsidiary.

 

Electronic Transmission ” means each document, instruction, authorization, file, information and any other communication transmitted, posted or otherwise made or communicated by e-mail or E-Fax, or otherwise to or from an E-System.

 

Eligible Inventory Inclusion Date ” means the date determined by Agent and the Required Lenders for inclusion of Eligible Inventory in the Borrowing Base following completion of due diligence with respect to Inventory, including field examinations and appraisals.

 

Eligible Inventory Sublimit ” means the sublimit for the Eligible Inventory component of the Borrowing Base, as determined by Agent and the Required Lenders in their Permitted Discretion.

 

Environmental Laws ” means all present and future Requirements of Law and Permits imposing liability or standards of conduct for or relating to the regulation and protection of human health, safety, the workplace, the environment and natural resources, and including public notification requirements and environmental transfer of ownership, notification or approval statutes.

 

Environmental Liabilities ” means all Liabilities (including costs of Remedial Actions, natural resource damages and costs and expenses of investigation and feasibility studies, including the cost of environmental consultants and the reasonable cost of attorney’s fees) that may be imposed on, incurred by or asserted against any Credit Party or any Subsidiary of any Credit Party as a result of, or related to, any claim, suit, action, investigation, proceeding or demand by any Person, whether based in contract, tort, implied or express warranty, strict liability, criminal or civil statute or common law or otherwise, arising under any Environmental Law or in connection with any environmental, health or safety condition or with any Release and resulting from the ownership, lease, sublease or other operation or occupation of Property by any Credit Party or any Subsidiary of any Credit Party, whether on, prior or after the date hereof.

 

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Equipment ” means all “equipment,” as such term is defined in the UCC, now owned or hereafter acquired by any Credit Party, wherever located.

 

ERISA ” means the Employee Retirement Income Security Act of 1974.

 

ERISA Affiliate ” means, collectively, any Credit Party and any Person under common control or treated as a single employer with, any Credit Party, within the meaning of Section 414(b), (c), (m) or (o) of the Code.

 

ERISA Event ” means any of the following:  (a) a reportable event described in Section 4043(b) of ERISA (or, unless the 30-day notice requirement has been duly waived under the applicable regulations, Section 4043(c) of ERISA) with respect to a Title IV Plan; (b) the withdrawal of any ERISA Affiliate from a Title IV Plan subject to Section 4063 of ERISA during a plan year in which it was a substantial employer, as defined in Section 4001(a)(2) of ERISA; (c) the complete or partial withdrawal of any ERISA Affiliate from any Multiemployer Plan; (d) with respect to any Multiemployer Plan, the filing of a notice of reorganization, insolvency or termination (or treatment of a plan amendment as termination) under Section 4041A of ERISA; (e) the filing of a notice of intent to terminate a Title IV Plan (or treatment of a plan amendment as termination) under Section 4041 of ERISA; (f) the institution of proceedings to terminate a Title IV Plan or Multiemployer Plan by the PBGC; (g) the failure to make any required contribution to any Title IV Plan or Multiemployer Plan when due; (h) the imposition of a lien under Section 412 or 430(k) of the Code or Section 303 or 4068 of ERISA on any property (or rights to property, whether real or personal) of any ERISA Affiliate; (i) the failure of a Benefit Plan or any trust thereunder intended to qualify for tax exempt status under Section 401 or 501 of the Code or other Requirements of Law to qualify thereunder; (j) a Title IV plan is in “at risk” status within the meaning of Code Section 430(i); (k) a Multiemployer Plan is in “endangered status” or “critical status” within the meaning of Section 432(b) of the Code; and (l) any other event or condition that might reasonably be expected to constitute grounds under Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any Title IV Plan or Multiemployer Plan or for the imposition of any material liability upon any ERISA Affiliate under Title IV of ERISA other than for PBGC premiums due but not delinquent.

 

Event of Loss ” means, with respect to any Property, any of the following:  (a) any loss, destruction or damage of such Property; (b) any pending or threatened institution of any proceedings for the condemnation or seizure of such Property or for the exercise of any right of eminent domain; or (c) any actual condemnation, seizure or taking, by exercise of the power of eminent domain or otherwise, of such Property, or confiscation of such Property or the requisition of the use of such Property.

 

Excluded Rate Contract Obligation ” means, with respect to any Guarantor, any guarantee of any Swap Obligations under a Secured Rate Contract if, and only to the extent that and for so long as, all or a portion of the guarantee of such Guarantor of, or the grant by such Guarantor of a security interest to secure, such Swap Obligation under a Secured Rate Contract (or any guarantee thereof) is or becomes illegal under the Commodity Exchange Act or any rule, regulation or order of the Commodity Futures Trading Commission (or the application or official interpretation of any thereof) by virtue of such Guarantor’s failure for any reason to constitute an “eligible contract participant” as defined in the Commodity Exchange Act at the time the

 

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guarantee of such Guarantor or the grant of such security interest becomes effective with respect to such Swap Obligation under a Secured Rate Contract.  If a Swap Obligation under a Secured Rate Contract arises under a master agreement governing more than one swap, such exclusion shall apply only to the portion of such Swap Obligation under a Secured Rate Contract that is attributable to swaps for which such guarantee or security interest is or becomes illegal.

 

Excluded Tax ” means with respect to any Secured Party (a) taxes measured by net income (including branch profits taxes) and franchise taxes imposed in lieu of net income taxes, in each case imposed on any Secured Party as a result of a present or former connection between such Secured Party and the jurisdiction of the Governmental Authority imposing such tax or any political subdivision or taxing authority thereof or therein (other than such connection arising solely from any Secured Party having executed, delivered or performed its obligations or received a payment under, or enforced, any Loan Document); (b) withholding taxes to the extent that the obligation to withhold amounts existed on the date that such Person became a “Secured Party” under this Agreement in the capacity under which such Person makes a claim under Section 10.1(b)  or designates a new Lending Office, except in each case to the extent such Person is a direct or indirect assignee (other than pursuant to Section 9.22 ) of any other Secured Party that was entitled, at the time the assignment to such Person became effective, to receive additional amounts under Section 10.1(b) ; (c) taxes that are directly attributable to the failure (other than as a result of a change in any Requirement of Law) by any Secured Party to deliver the documentation required to be delivered pursuant to Section 10.1(f) , and (d) in the case of a Non-U.S. Lender Party, any United States federal withholding taxes imposed on amounts payable to such Non-U.S. Lender Party as a result of such Non-U.S. Lender Party’s failure to comply with FATCA to establish a complete exemption from withholding thereunder.

 

E-Fax ” means any system used to receive or transmit faxes electronically.

 

E-Signature ” means the process of attaching to or logically associating with an Electronic Transmission an electronic symbol, encryption, digital signature or process (including the name or an abbreviation of the name of the party transmitting the Electronic Transmission) with the intent to sign, authenticate or accept such Electronic Transmission.

 

E-System ” means any electronic system approved by Agent, including SyndTrak Online® and any other Internet or extranet-based site, whether such electronic system is owned, operated or hosted by Agent, any of its Related Persons or any other Person, providing for access to data protected by passcodes or other security system.

 

FATCA ” means sections 1471, 1472, 1473 and 1474 of the Code, as of the date of this Agreement (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), current or future United States Treasury Regulations promulgated thereunder and published guidance with respect thereto, and any agreements entered into pursuant to Section 1471(b)(1) of the Code.

 

FDA ” means the United States Food and Drug Administration and any successor thereto.

 

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Federal Flood Insurance ” means federally backed Flood Insurance available under the National Flood Insurance Program to owners of real property improvements located in Special Flood Hazard Areas in a community participating in the National Flood Insurance Program.

 

Federal Funds Rate ” means, for any period, a fluctuating interest rate per annum equal for each day during such period to the weighted average of the rates on overnight federal funds transactions with members of the Federal Reserve System arranged by federal funds brokers, as determined by Agent in a commercially reasonable manner.

 

Federal Reserve Board ” means the Board of Governors of the Federal Reserve System, or any entity succeeding to any of its principal functions.

 

Federal/State Healthcare Program Account Debtor ” means any Account Debtor which is (a) the United States of America acting under the Medicaid/Medicare program established pursuant to the Social Security Act, the Tricare/CHAMPUS Program or any other Federally sponsored healthcare program other than the healthcare programs for which Federal government employees are beneficiaries, (b) any state or the District of Columbia acting pursuant to a health plan adopted pursuant to Title XIX of the Social Security Act or other Federal or State statute or (c) any agent, carrier, contractor, administrator or intermediary for any of the foregoing.

 

FEMA ” means the Federal Emergency Management Agency, a component of the U.S. Department of Homeland Security that administers the National Flood Insurance Program.

 

Final Availability Date ” means the earlier of the Revolving Termination Date and one (1) Business Day prior to the date specified in clause (a)  of the definition of Revolving Termination Date.

 

First Tier Foreign Subsidiary ” means a Foreign Subsidiary held directly by a Credit Party or indirectly by a Credit Party through one or more Domestic Subsidiaries.

 

Fiscal Quarter ” means any of the quarterly accounting periods of the Credit Parties, ending on March 31, June 30, September 30, and December 31 of each year.

 

Fiscal Year ” means any of the annual accounting periods of the Credit Parties ending on December 31 of each year.

 

Flood Insurance ” means, for any Real Estate located in a Special Flood Hazard Area, Federal Flood Insurance or private insurance that (a) meets the requirements set forth by FEMA in its Mandatory Purchase of Flood Insurance Guidelines and (b) shall be in an amount equal to the full, unpaid balance of the Loans and any prior liens on the Real Estate up to the maximum policy limits set under the National Flood Insurance Program, or as otherwise required by Agent, with deductibles not to exceed $50,000.

 

Foreign Subsidiary ” means, with respect to any Person, a Subsidiary of such Person that is a “controlled foreign corporation” under Section 957 of the Code.

 

GAAP ” means generally accepted accounting principles in the United States of America, as in effect from time to time, set forth in the opinions and pronouncements of the

 

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Accounting Principles Board and the American Institute of Certified Public Accountants, in the statements and pronouncements of the Financial Accounting Standards Board (or agencies with similar functions and comparable stature and authority within the accounting profession) that are applicable to the circumstances as of the date of determination.  Subject to Section 11.3 , all references to “GAAP” shall be to GAAP applied consistently with the principles used in the preparation of the financial statements described in Section 3.11(a) .

 

Governmental Authority ” means any nation, sovereign or government, any state or other political subdivision thereof, any agency, authority or instrumentality thereof and any entity or authority exercising executive, legislative, taxing, judicial, regulatory or administrative functions of or pertaining to government, including any central bank, stock exchange, regulatory body, arbitrator, public sector entity, supra-national entity (including the European Union and the European Central Bank) and any self-regulatory organization (including the National Association of Insurance Commissioners).  The term “Governmental Authority” shall further include (i) any institutional review board, ethics committee, data monitoring committee, state pharmacy board or other committee or entity with defined authority to oversee Regulatory Matters and (ii) any agency, branch or other governmental body charged with the responsibility and/or vested with the authority to administer and/or enforce any Health Care Laws, including any Medicare or Medicaid contractors, intermediaries or carriers.

 

Governmental Payor ” means Medicare, Medicaid, TRICARE, CHAMPVA, any state health plan adopted pursuant to Title XIX of the Social Security Act, any other state or federal health care program and any other Governmental Authority which presently or in the future maintains a Third Party Payor Program.

 

Guaranty and Security Agreement ” means that certain Amended and Restated Guaranty and Security Agreement, dated as of the Closing Date, in form and substance reasonably acceptable to Agent and the Borrower, made by the Credit Parties in favor of Agent, for the benefit of the Secured Parties, as the same may be amended, restated and/or modified from time to time.

 

Hazardous Material ” means any substance, material or waste that is classified, regulated or otherwise characterized under any Environmental Law as hazardous, toxic, a contaminant or a pollutant or by other words of similar meaning or regulatory effect, including, without limitation, petroleum or any fraction thereof, asbestos, polychlorinated biphenyls and radioactive substances.

 

Headquarters Due Care Plan ” means the May 2, 2010 Due Care Plan for the Commercial Property Located at 4100 South Saginaw Street and 325 South Atherton Road, Flint, Michigan, prepared by PM Environmental, Inc.

 

Health Care Laws ” means all Requirements of Law relating to (a) fraud and abuse (including without limitation the following statutes, as amended, modified or supplemented from time to time and any successor statutes thereto and regulations promulgated from time to time thereunder:  the federal Anti-Kickback Statute (42 U.S.C. § 1320a-7b(b)); the Stark Law (42 U.S.C. § 1395nn and §1395(q)); the civil False Claims Act (31 U.S.C. § 3729 et seq.); Sections 1320a-7 and 1320a-7a and 1320a-7b of Title 42 of the United States Code; the Medicare

 

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Prescription Drug, Improvement, and Modernization Act of 2003 (Pub. L. No. 108-173)); (b) Medicare, Medicaid, CHAMPVA, TRICARE or other Third Party Payor Programs; (c) the licensure or regulation of healthcare providers, suppliers, professionals, facilities or payors; (d) the provision of, or payment for, health care services, items or supplies; (e) patient health care; (f) quality, safety certification and accreditation standards and requirements; (g) the billing, coding or submission of claims or collection of accounts receivable or refund of overpayments; (h) HIPAA; (i) certificates of operations and authority; (o) laws regulating the provision of free or discounted care or services; and (j) any and all other applicable federal, state or local health care laws, rules, codes, statutes, regulations, manuals, orders, ordinances, statutes, policies, professional or ethical rules, administrative guidance and requirements, as the same may be amended, modified or supplemented from time to time, and any successor statute thereto.

 

Health Care Permits ” means any and all Permits issued or required under applicable Health Care Laws.

 

HIPAA ” means the (a) Health Insurance Portability and Accountability Act of 1996; (b) the Health Information Technology for Economic and Clinical Health Act (Title XIII of the American Recovery and Reinvestment Act of 2009); and (c) any state and local laws regulating the privacy and/or security of individually identifiable information, including state laws providing for notification of breach of privacy or security of individually identifiable information, in each case with respect to the laws described in clauses (a), (b) and (c) of this definition, as the same may be amended, modified or supplemented from time to time, any successor statutes thereto, any and all rules or regulations promulgated from time to time thereunder.

 

Impacted Lender ” means any Lender that fails to provide Agent, within three (3) Business Days following Agent’s written request, satisfactory assurance that such Lender will not become a Non-Funding Lender.

 

Indebtedness ” of any Person means, without duplication:  (a) all indebtedness for borrowed money; (b) all obligations issued, undertaken or assumed as the deferred purchase price of Property or services (other than trade payables entered into in the Ordinary Course of Business and which are not secured by a Lien); (c) the face amount of all letters of credit issued for the account of such Person and without duplication, all drafts drawn thereunder and all reimbursement or payment obligations with respect to letters of credit, surety bonds and other similar instruments issued by such Person; (d) all obligations evidenced by notes, bonds, debentures or similar instruments, including obligations so evidenced incurred in connection with the acquisition of Property, assets or businesses; (e) all indebtedness created or arising under any conditional sale or other title retention agreement, or incurred as financing, in either case with respect to Property acquired by such Person (even though the rights and remedies of the seller or lender under such agreement in the event of default are limited to repossession or sale of such Property); (f) all Capital Lease Obligations; (g) the principal balance outstanding under any synthetic lease, off-balance sheet loan or similar off balance sheet financing product; (h) all indebtedness referred to in clauses (a)  through (g)  above secured by (or for which the holder of such Indebtedness has an existing right, contingent or otherwise, to be secured by) any Lien upon or in Property (including accounts and contracts rights) owned by such Person, even though such Person has not assumed or become liable for the payment of such indebtedness; and

 

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(j) all Contingent Obligations described in clause (a)  of the definition thereof in respect of indebtedness or obligations of others of the kinds referred to in clauses (a)  through (i)  above.

 

Insolvency Proceeding ” means (a) any case, action or proceeding before any court or other Governmental Authority relating to bankruptcy, reorganization, insolvency, liquidation, receivership, dissolution, winding-up or relief of debtors, or (b) any general assignment for the benefit of creditors, composition, marshaling of assets for creditors, or other, similar arrangement in respect of its creditors generally or any substantial portion of its creditors; in each case in (a) and (b) above, undertaken under U.S. federal, state or foreign law, including the Bankruptcy Code.

 

Intellectual Property ” means all rights, title and interests in or relating to intellectual property and industrial property arising under any Requirement of Law and all IP Ancillary Rights relating thereto, including all Copyrights, Patents, Trademarks, Internet Domain Names, Trade Secrets and IP Licenses.

 

Interest Payment Date ” means, (a) with respect to any LIBOR Rate Loan (other than a LIBOR Rate Loan having an Interest Period of six (6) months) the last day of each Interest Period applicable to such Loan, (b) with respect to any LIBOR Rate Loan having an Interest Period of six (6) months, the last day of each three (3) month interval and, without duplication, the last day of such Interest Period, and (c) with respect to Base Rate Loans (including Swing Loans) the first day of each month.

 

Interest Period ” means, with respect to any LIBOR Rate Loan, the period commencing on the Business Day such Loan is disbursed or continued or on the Conversion Date on which a Base Rate Loan is converted to the LIBOR Rate Loan and ending on the date one, two, three , or six , months thereafter, as selected by the Borrower in its Notice of Borrowing or Notice of Conversion/Continuation; provided that:

 

(a)                                  if any Interest Period pertaining to a LIBOR Rate Loan would otherwise end on a day which is not a Business Day, that Interest Period shall be extended to the next succeeding Business Day unless the result of such extension would be to carry such Interest Period into another calendar month, in which event such Interest Period shall end on the immediately preceding Business Day;

 

(b)                                  any Interest Period pertaining to a LIBOR Rate Loan that begins on the last Business Day of a calendar month (or on a day for which there is no numerically corresponding day in the calendar month at the end of such Interest Period) shall end on the last Business Day of the calendar month at the end of such Interest Period; and

 

(c)                                   no Interest Period for any Revolving Loan shall extend beyond the Revolving Termination Date.

 

Internet Domain Name ” means all right, title and interest (and all related IP Ancillary Rights) arising under any Requirement of Law in or relating to internet domain names.

 

Inventory ” means all of the “inventory” (as such term is defined in the UCC) of the Credit Parties, including, but not limited to, all merchandise, raw materials, parts, supplies, work

 

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in process and finished goods intended for sale, together with all the containers, packing, packaging, shipping and similar materials related thereto, and including such inventory as is temporarily out of a Credit Party’s custody or possession, including inventory on the premises of others and items in transit.

 

IP Ancillary Rights ” means, with respect to any Intellectual Property, as applicable, all foreign counterparts to, and all divisionals, reversions, continuations, continuations-in-part, reissues, reexaminations, renewals and extensions of, such Intellectual Property and all income, royalties, proceeds and Liabilities at any time due or payable or asserted under or with respect to any of the foregoing or otherwise with respect to such Intellectual Property, including all rights to sue or recover at law or in equity for any past, present or future infringement, misappropriation, dilution, violation or other impairment thereof, and, in each case, all rights to obtain any other IP Ancillary Right.

 

IP License ” means all Contractual Obligations (and all related IP Ancillary Rights), whether written or oral, granting any right, title and interest in or relating to any Intellectual Property.

 

IRS ” means the Internal Revenue Service of the United States and any successor thereto.

 

Issue ” means, with respect to any Letter of Credit, to issue, extend the expiration date of, renew (including by failure to object to any automatic renewal on the last day such objection is permitted), increase the face amount of, or reduce or eliminate any scheduled decrease in the face amount of, such Letter of Credit, or to cause any Person to do any of the foregoing.  The terms “Issued” and “Issuance” have correlative meanings.

 

Janus Series A Preferred Issuance ” means the issuance of Series A Preferred Stock of Borrower pursuant to the Janus Series A Preferred Stock Purchase Agreement.

 

Janus Series A Preferred Proceeds Distributions ” means, collectively, the distribution to currently existing holders of Borrower’s common stock and currently existing holders of options to acquire Borrower’s common stock in an aggregate amount of up to $54,000,000 with the proceeds from the Janus Series A Preferred Issuance in the form of redemptions of stock and/or stock options.

 

Janus Series A Preferred Stock Purchase Agreement ” means the Janus Series A Preferred Stock Purchase Agreement dated as of March 31, 2014, by and among Borrower and each of those persons and entities whose names are set forth on the Schedule of Purchasers attached thereto.

 

Janus Series A Preferred Transaction Documents ” means the “Transaction Agreements” as defined in the Janus Series A Preferred Stock Purchase Agreement.

 

L/C Issuer ” means any Lender or an Affiliate thereof or a bank or other legally authorized Person, in each case, reasonably acceptable to Agent, in such Person’s capacity as an issuer of Letters of Credit hereunder.

 

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L/C Reimbursement Obligation ” means, for any Letter of Credit, the obligation of the Borrower to the L/C Issuer thereof or to Agent, as and when matured, to pay all amounts drawn under such Letter of Credit.

 

Lender ” means each Lender with a Revolving Loan Commitment (or if the Revolving Loan Commitments have terminated, who hold Revolving Loans or participations in Swing Loans.)

 

Lending Office ” means, with respect to any Lender, the office or offices of such Lender specified as its “Lending Office” beneath its name on the applicable signature page hereto, or such other office or offices of such Lender as it may from time to time notify the Borrower and Agent.

 

Letter of Credit ” means documentary or standby letters of credit Issued for the account of the Borrower by L/C Issuers, and bankers’ acceptances issued by the Borrower, for which Agent and Lenders have incurred Letter of Credit Obligations.

 

Letter of Credit Obligations ” means all outstanding obligations incurred by Agent and Lenders at the request of the Borrower, whether direct or indirect, contingent or otherwise, due or not due, in connection with the issuance of Letters of Credit by L/C Issuers or the purchase of a participation as set forth in Section 1.1(c)  with respect to any Letter of Credit.  The amount of such Letter of Credit Obligations shall equal the maximum amount that may be payable by Agent and Lenders thereupon or pursuant thereto.

 

Liabilities ” means all claims, actions, suits, judgments, damages, losses, liability, obligations, responsibilities, fines, penalties, sanctions, costs, fees, taxes, commissions, charges, disbursements and expenses (including, without limitation, those incurred upon any appeal or in connection with the preparation for and/or response to any subpoena or request for document production relating thereto), in each case of any kind or nature (including interest accrued thereon or as a result thereto and fees, charges and disbursements of financial, legal and other advisors and consultants), whether joint or several, whether or not indirect, contingent, consequential, actual, punitive, treble or otherwise.

 

LIBOR ” means, for each Interest Period, the highest of the offered rate per annum for deposits of Dollars for the applicable Interest Period that appears on Reuters Screen LIBOR 01 Page as of 11:00 A.M. (London, England time) two (2) Business Days prior to the first day in such Interest Period.  If no such offered rate exists, such rate will be the rate of interest per annum, as determined by Agent at which deposits of Dollars in immediately available funds are offered at 11:00 A.M. (London, England time) two (2) Business Days prior to the first day in such Interest Period by major financial institutions reasonably satisfactory to Agent in the London interbank market for such Interest Period for the applicable principal amount on such date of determination.

 

LIBOR Rate Loan ” means a Loan that bears interest based on LIBOR.

 

Licensed Personnel ” means any Person (including any pharmacist) involved in the delivery of health care or medical items, services or supplies, employed or retained by any Credit Party or any Subsidiary of any Credit Party.

 

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Lien ” means any mortgage, deed of trust, pledge, hypothecation, assignment, charge, deposit arrangement, encumbrance, easement, lien (statutory or otherwise), security interest or other security arrangement and any other preference, priority or preferential arrangement of any kind or nature whatsoever (including those created by, arising under or evidenced by any conditional sale contract or other title retention agreement, the interest of a lessor under a Capital Lease and any synthetic or other financing lease having substantially the same economic effect as any of the foregoing.

 

Loan ” means any loan made or deemed made by any Lender hereunder.

 

Loan Documents ” means this Agreement, the Notes, the Fee Letter, the Collateral Documents, the Master Agreement for Standby Letters of Credit, the Master Agreement for Documentary Letters of Credit, the Subordination Agreements, the AmerisourceBergen Intercreditor Agreement and all documents delivered to Agent and/or any Lender in connection with any of the foregoing.

 

Margin Stock ” means “margin stock” as such term is defined in Regulation T, U or X of the Federal Reserve Board.

 

Material Adverse Effect ” means an effect that results in or causes, or could reasonably be expected to result in or cause, a material adverse change in any of (a) the condition (financial or otherwise) or prospects of any Credit Party or business, performance, operations or Property of the Credit Parties and their Subsidiaries taken as a whole; (b) the ability of any Credit Party, any Subsidiary of any Credit Party or any other Person (other than Agent or Lenders) to perform its obligations under any Loan Document; or (c) the validity or enforceability of any Loan Document or the rights and remedies of Agent, the Lenders and the other Secured Parties under any Loan Document.  Without limiting the generality of the foregoing, any event or occurrence which results or would reasonably be expected to result in Liabilities to the Credit Parties in excess of $6,000,000 individually or in the aggregate shall be deemed to have a Material Adverse Effect.

 

Material Agreement ” means each of the AmerisourceBergen Vendor Contract and the Distribution and Services Agreement dated as of July 1, 2011 between Celgene Corporation and Borrower.

 

Material Environmental Liabilities ” means Environmental Liabilities exceeding $500,000 in the aggregate.

 

Medicaid ” means, collectively, the health care assistance program established by Title XIX of the Social Security Act (42 U.S.C. 1396 et seq.) and any statutes succeeding thereto, and all laws, rules, regulations, manuals, orders or requirements pertaining to such program, including (a) all federal statutes affecting such program; (b) all state statutes and plans for medical assistance enacted in connection with such program and federal rules and regulations promulgated in connection with such program; and (c) all applicable provisions of all rules, regulations, manuals, orders and administrative, reimbursement, and requirements of all Governmental Authorities promulgated in connection with such program (whether or not having

 

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the force of law), in each case as the same may be amended, supplemented or otherwise modified from time to time.

 

Medicare ” means, collectively, the health insurance program for the aged and disabled established by Title XVIII of the Social Security Act (42 U.S.C. 1395 et seq.) and any statutes succeeding thereto, and all laws, rules, regulations, manuals, orders or requirements pertaining to such program including (a) all federal statutes (whether set forth in Title XVIII of the Social Security Act (42 U.S.C. 1395 et seq.) or elsewhere) affecting such program; and (b) all applicable provisions of all rules, regulations, manuals, orders, administrative, reimbursement and requirements of all Governmental Authorities promulgated in connection with such program (whether or not having the force of law), in each case as the same may be amended, supplemented or otherwise modified from time to time.

 

MedPro ” means MedPro Rx, Inc., a North Carolina corporation.

 

MedPro Acquisition ” means the Acquisition by Borrower of all of the outstanding Stock of MedPro pursuant to the MedPro Acquisition Agreement.

 

MedPro Acquisition Agreement ” means that certain Stock Purchase Agreement dated as of or about June 27, 2014, by and among Borrower, MedPro and the stockholders of MedPro party thereto, in the form delivered to Agent and Lenders on the Closing Date.

 

MedPro Acquisition Closing Date ” means the “Closing Date” as defined in the MedPro Acquisition Agreement.

 

MedPro Acquisition Documents ” means, collectively, the MedPro Acquisition Agreement, and all other agreements and documents required to be entered into or delivered pursuant thereto or in connection with the MedPro Acquisition, each in the form delivered to the Agent on the Closing Date and as may be amended, modified or supplemented from time to time as permitted hereunder.

 

MedPro Earnout ” means the “Contingent Payments”, if any, payable to the former shareholders of MedPro under the MedPro Acquisition Agreement.

 

Mortgage ” means any deed of trust, leasehold deed of trust, mortgage, leasehold mortgage, deed to secure debt, leasehold deed to secure debt or other document creating a Lien on Real Estate or any interest in Real Estate.

 

Multiemployer Plan ” means any multiemployer plan, as defined in Section 3(37) or 4001(a)(3) of ERISA, as to which any ERISA Affiliate incurs or otherwise has any obligation or liability, contingent or otherwise.

 

National Flood Insurance Program ” means the program created by the U.S. Congress pursuant to the National Flood Insurance Act of 1968 and the Flood Disaster Protection Act of 1973, as revised by the National Flood Insurance Reform Act of 1994, that mandates the purchase of flood insurance to cover real property improvements located in Special Flood Hazard Areas in participating communities and provides protection to property owners through a federal insurance program.

 

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Net Issuance Proceeds ” means, in respect of any issuance of debt or equity, cash proceeds (including cash proceeds as and when received in respect of non-cash proceeds received or receivable in connection with such issuance), net of underwriting discounts and reasonable out-of-pocket costs and expenses paid or incurred in connection therewith in favor of any Person not an Affiliate of the Borrower.

 

Net Orderly Liquidation Value means the cash proceeds of Inventory and/or Equipment, as applicable, which could be obtained in an orderly liquidation (net of all liquidation expenses, costs of sale, operating expenses and retrieval and related costs), as determined pursuant to the most recent third-party appraisal of such Inventory and/or Equipment delivered to Agent by an appraiser reasonably acceptable to Agent.

 

Net Proceeds ” means proceeds in cash, checks or other cash equivalent financial instruments (including Cash Equivalents) as and when received by the Person making a Disposition, and insurance proceeds and condemnation and similar awards received on account of an Event of Loss, net of:  (a) in the event of a Disposition (i) the direct costs relating to such Disposition excluding amounts payable to the Borrower or any Affiliate of the Borrower, (ii) sale, use or other transaction taxes paid or payable as a result thereof, and (iii) amounts required to be applied to repay principal, interest and prepayment premiums and penalties on Indebtedness secured by a Lien on the asset which is the subject of such Disposition and (b) in the event of an Event of Loss, (i) so long as no Default or Event of Default has occurred and is continuing, all money actually applied to repair or reconstruct the damaged Property or Property affected by the condemnation or taking, (ii) all of the costs and expenses reasonably incurred in connection with the collection of such proceeds, award or other payments, and (iii) any amounts retained by or paid to parties having superior rights to such proceeds, awards or other payments.

 

NOLV Factor ” means, as of the date of the appraisal of Inventory most recently received by Agent, the quotient of the Net Orderly Liquidation Value of Inventory divided by the book value of Inventory, expressed as a percentage.  The NOLV Factor will be increased or reduced promptly upon receipt by Agent of each updated appraisal.

 

Non-Funding Lender ” means any Lender that has (a) failed to fund any payments required to be made by it under the Loan Documents within two (2) Business Days after any such payment is due (excluding expense and similar reimbursements that are subject to good faith disputes), (b) given written notice (and Agent has not received a revocation in writing), to a Borrower, Agent, any Lender, or the L/C Issuer or has otherwise publicly announced (and Agent has not received notice of a public retraction) that such Lender believes it will fail to fund payments or purchases of participations required to be funded by it under the Loan Documents or one or more other syndicated credit facilities, (c) failed to fund, and not cured, loans, participations, advances, or reimbursement obligations under one or more other syndicated credit facilities, unless subject to a good faith dispute, or (d) (i) become subject to a voluntary or involuntary case under the Bankruptcy Code or any similar bankruptcy laws, (ii) a custodian, conservator, receiver or similar official appointed for it or any substantial part of such Person’s assets, or (iii) made a general assignment for the benefit of creditors, been liquidated, or otherwise been adjudicated as, or determined by any Governmental Authority having regulatory authority over such Person or its assets to be, insolvent or bankrupt, and for this clause (d) , Agent

 

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has determined that such Lender is reasonably likely to fail to fund any payments required to be made by it under the Loan Documents.

 

Non-U.S. Lender Party ” means each of Agent, each Lender, each L/C Issuer, each SPV and each participant, in each case that is not a United States person as defined in Section 7701(a)(30) of the Code.

 

Note ” means any Revolving Note or Swingline Note and “Notes” means all such Notes.

 

Notice of Borrowing ” means a notice given by the Borrower to Agent pursuant to Section 1.5 , in substantially the form of Exhibit 11.1(c)  hereto.

 

Obligations ” means all Loans, and other Indebtedness, advances, debts, liabilities, obligations, covenants and duties owing by any Credit Party to any Lender, Agent, any L/C Issuer, any Secured Swap Provider, and provider of Bank Products or any other Person required to be indemnified, that arises under any Loan Document, any Secured Rate Contract or any Bank Product, whether or not for the payment of money, whether arising by reason of an extension of credit, loan, guaranty, indemnification or in any other manner, whether direct or indirect (including those acquired by assignment), absolute or contingent, due or to become due, now existing or hereafter arising and however acquired; provided, that Obligations of any Guarantor shall not include any Excluded Rate Contract Obligations solely of such Guarantor.

 

Ordinary Course of Business ” means, in respect of any transaction involving any Person, the ordinary course of such Person’s business, as conducted by any such Person in accordance with past practice and undertaken by such Person in good faith and not for purposes of evading any covenant or restriction in any Loan Document.

 

Original Closing Date ” means July 20, 2012.

 

Organization Documents ” means, (a) for any corporation, the certificate or articles of incorporation, the bylaws, any certificate of determination or instrument relating to the rights of preferred shareholders of such corporation and any shareholder rights agreement, (b) for any partnership, the partnership agreement and, if applicable, certificate of limited partnership, (c) for any limited liability company, the operating agreement and articles or certificate of formation or (d) any other document setting forth the manner of election or duties of the officers, directors, managers or other similar persons, or the designation, amount or relative rights, limitations and preference of the Stock of a Person.

 

Patents ” means all rights, title and interests (and all related IP Ancillary Rights) arising under any Requirement of Law in or relating to letters patent and applications therefor.

 

Patriot Act ” means the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, P.L. 107-56.

 

PBGC ” means the United States Pension Benefit Guaranty Corporation any successor thereto.

 

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Permits ” means, with respect to any Person, any permit, approval, consent, clearance, authorization, license, registration, accreditation, certificate, certification, certificate of need, concession, grant, franchise, variance or permission from, and any other Contractual Obligations with, any Governmental Authority, in each case whether or not having the force of law and applicable to or binding upon such Person or any of its property or Products or to which such Person or any of its property or Products is subject, including without limitation all Registrations and all Health Care Laws.

 

Permitted Holders ” means Philip R. Hagerman and trusts for his benefit and that of his family.

 

Permitted Acquisition ” means any Acquisition by (i) a Credit Party of substantially all of the assets of a Target, which assets are located in the United States or (ii) a Credit Party of 100% of the Stock and Stock Equivalents of a Target organized under the laws of any State in the United States or the District of Columbia, in each case, to the extent that each of the following conditions shall have been satisfied:

 

(a)                                  to the extent the Acquisition will be financed in whole or in part with the proceeds of any Loan, the conditions set forth in Section 2.2 shall have been satisfied;

 

(b)                                  the Borrower shall have notified Agent and Lenders of such proposed Acquisition at least thirty (30) days prior to the consummation thereof and furnished to Agent and Lenders at least fifteen (15) days prior to the consummation thereof (1) an executed term sheet and/or letter of intent (setting forth in reasonable detail the terms and conditions of such Acquisition) and, at the request of Agent, such other information and documents that Agent may request, including, without limitation, executed counterparts of the respective agreements, documents or instruments pursuant to which such Acquisition is to be consummated (including, without limitation, any related management, non-compete, employment, option or other material agreements), any schedules to such agreements, documents or instruments and all other material ancillary agreements, instruments and documents to be executed or delivered in connection therewith, (2) pro forma financial statements of the Borrower and its Subsidiaries after giving effect to the consummation of such Acquisition, (3) a certificate of a Responsible Officer of the Borrower demonstrating on a pro forma basis compliance with the covenants set forth in Article VI after giving effect to the consummation of such Acquisition and (4) copies of such other agreements, instruments and other documents as Agent reasonably shall request;

 

(c)                                   the Borrower and its Subsidiaries (including any new Subsidiary) shall execute and deliver the agreements, instruments and other documents required by Section 4.13 and Agent shall have received, for the benefit of the Secured Parties, a collateral assignment of the seller ’s representations, warranties and indemnities to the Borrower or any of its Subsidiaries under the acquisition documents;

 

(d)                                  such Acquisition shall not be hostile and shall have been approved by the board of directors (or other similar body) and/or the stockholders or other equityholders of the Target;

 

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(e)                                   no Default or Event of Default shall then exist or would exist after giving effect thereto;

 

(f)                                    average daily Availability shall not be less than $30,000,000 for the ninety (90) day period preceding such Acquisition and, on a pro forma basis, Availability shall not be less than $25,000,000 after giving effect to such Acquisition;

 

(g)                                   the total consideration paid or payable (including without limitation, all transaction costs, assumed Indebtedness and Liabilities incurred, assumed or reflected on a consolidated balance sheet of the Credit Parties and their Subsidiaries after giving effect to such Acquisition and the maximum amount of all deferred payments) for all Acquisitions consummated after the Closing Date (exclusive of the MedPro Acquisition) during (i) any calendar year shall not exceed $30,000,000 in the aggregate for all such Acquisitions and (ii) the term of this Agreement shall not exceed $60,000,000 in the aggregate for all such Acquisitions; and

 

(h)                                  the Target has EBITDA, subject to pro forma adjustments acceptable to Agent, for the most recent four quarters prior to the acquisition date for which financial statements are available, greater than zero

 

Notwithstanding the foregoing, no Accounts or Inventory acquired by a Credit Party in a Permitted Acquisition shall be included as Eligible Accounts or Eligible Inventory until a field examination (and, if required by Agent, an Inventory appraisal) with respect thereto has been completed to the satisfaction of Agent, including the establishment of Reserves required in Agent’s Permitted Discretion; provided that field examinations and appraisals in connection with Permitted Acquisitions shall not count against the limited number of field examinations or appraisals for which expense reimbursement may be sought.

 

Permitted Discretion ” means a determination made in good faith and in the exercise of reasonable (from the perspective of a secured asset-based lender) business judgment.

 

Permitted Refinancing ” means Indebtedness constituting a refinancing or extension of Indebtedness permitted under Section 5.5(c), 5.5(d)  or 5.5(h)  that (a) has an aggregate outstanding principal amount not greater than the aggregate principal amount of the Indebtedness being refinanced or extended, (b) has a weighted average maturity (measured as of the date of such refinancing or extension) and maturity no shorter than that of the Indebtedness being refinanced or extended, (c) is not entered into as part of a sale leaseback transaction, (d) is not secured by a Lien on any assets other than the collateral securing the Indebtedness being refinanced or extended, (e) the obligors of which are the same as the obligors of the Indebtedness being refinanced or extended, and (f) is otherwise on terms no less favorable to the Credit Parties and their Subsidiaries, taken as a whole, than those of the Indebtedness being refinanced or extended.

 

Person ” means any individual, partnership, corporation (including a business trust and a public benefit corporation), joint stock company, estate, association, firm, enterprise, trust, limited liability company, unincorporated association, joint venture and any other entity or Governmental Authority.

 

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Pledged Collateral ” has the meaning specified in the Guaranty and Security Agreement and shall include any other Collateral required to be delivered to Agent pursuant to the terms of any Collateral Document.

 

Primrose Health Joint Venture ” means a limited liability company to be formed in the State of Delaware of which an aggregate of fifty one (51%) of the voting Stock will be owned directly or indirectly by Borrower, which will conduct business with the primary purpose of reducing Hepatitis C treatment cost-per-member for contracted healthplans.

 

Proceeding ” means any investigation, inquiry, litigation, review, hearing, suit, claim, audit, arbitration, proceeding or action (in each case, whether civil, criminal, administrative, investigative or informal) commenced, brought, conducted or heard by or before, or otherwise involving, any Governmental Authority or arbitrator.

 

Pro Forma EBITDA means, with respect to any Target, EBITDA for such Target for the most recent twelve (12) fiscal month period for which financial statements are available at the time of determination thereof, adjusted by verifiable expense reductions, including excess owner compensation, if any, which are expected to be realized, in each case calculated by the Borrower and approved by Agent and Required Lenders.

 

Products ” means any item or any service that is designed, created, manufactured, managed, performed, or otherwise used, offered, or handled by or on behalf of the Credit Parties or any of their Subsidiaries.

 

Property ” means any interest in any kind of property or asset, whether real, personal or mixed, and whether tangible or intangible.

 

Public Health Laws ” means all applicable Requirements of Law relating to the procurement, development, manufacture, production, analysis, distribution, dispensing, importation, exportation, use, handling, quality, sale, or promotion of any drug, medical device, food, dietary supplement, or other product (including, without limitation, any ingredient or component of the foregoing products) subject to regulation under the Federal Food, Drug, and Cosmetic Act (21 U.S.C. et seq.) and similar state laws, controlled substances laws, pharmacy laws, or consumer product safety laws.

 

Qualified ECP Guarantor ” means, in respect of any Swap Obligation under a Secured Rate Contract, each Credit Party that has total assets exceeding $10,000,000 at the time the relevant guarantee or grant of the relevant security interest becomes effective with respect to such Swap Obligation under a Secured Rate Contract or such other person as constitutes an “eligible contract participant” under the Commodity Exchange Act and can cause another person to qualify as an “eligible contract participant” at such time by entering into a keepwell under Section 1a(18)(A)(v)(II) of the Commodity Exchange Act.

 

Qualified IPO ” means a bona fide underwritten sale to the public of common stock of the Borrower (or any direct or indirect parent company of Borrower) pursuant to a registration statement (other than on Form S-8 or any other form relating to securities issuable under any benefit plan of the Borrower) that is declared effective by the SEC.

 

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Rate Contracts ” means swap agreements (as such term is defined in Section 101 of the Bankruptcy Code) and any other agreements or arrangements designed to provide protection against fluctuations in interest or currency exchange rates.

 

Real Estate ” means any Real Estate owned, leased, subleased or otherwise operated or occupied by any Credit Party or any Subsidiary of any Credit Party.

 

Redemption ” means the purchase for redemption of the Stock of the Borrower held by Jeffrey Rowe or purchase for cancellation of Stock Equivalents of the Borrower held by Steven Lund, as the case may be, in accordance with the terms of the Redemption Documents.

 

Redemption Documents ” means (i) with respect to the Redemptions, the Stock Redemption Agreement between the Borrower and Jeffrey M. Rowe, the Stock Option Redemption Agreement between the Borrower and Steven M. Lund, the Escrow and Pledge Agreement between Borrower and Jeffrey M. Rowe and the Subordinated Indebtedness Documents entered into in connection therewith, in each case, in the form provided to the Agent and Lenders prior to the Original Closing Date or otherwise in form and substance acceptable to Agent in its sole discretion and (ii) the Stock Redemption Agreement dated February 1, 2012 between the Borrower and M. Steven Chaffee and trusts for his benefit and for the benefit of his family (collectively, “Chaffee”), the Pledge and Escrow Agreement dated February 1, 2012 between the Borrower and Chaffee, and Subordinated Indebtedness Documents entered into in connection therewith.

 

Regulatory Matters ” means, collectively, activities and Products that are subject to Public Health Laws.

 

Registrations ” means all Permits and exemptions issued or allowed by any Governmental Authority (including but not limited to new drug applications, abbreviated new drug applications, biologics license applications, investigational new drug applications, over-the-counter drug monograph, device pre-market approval applications, device pre-market notifications, investigational device exemptions, product recertifications, manufacturing approvals and authorizations, CE Marks, pricing and reimbursement approvals, labeling approvals or their foreign equivalent, controlled substance registrations, pharmacy registrations, and wholesale distributor permits) held by, or applied by contract to, any Credit Party or any of its Subsidiaries, that are required for the research, development, manufacture, distribution, marketing, storage, transportation, use and sale of the Products of any Credit Party or any of its Subsidiaries.

 

Related Agreements ” means the AmerisourceBergen Vendor Contract, the Subordinated Indebtedness Documents, the Redemption Documents, the AHF Acquisition Documents and the MedPro Acquisition Documents.

 

Related Persons ” means, with respect to any Person, each Affiliate of such Person and each director, officer, employee, agent, trustee, representative, attorney, accountant and each insurance, environmental, legal, financial and other advisor (including those retained in connection with the satisfaction or attempted satisfaction of any condition set forth in Article II ) and other consultants and agents of or to such Person or any of its Affiliates.

 

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Related Transactions ” means the transactions contemplated by the Related Agreements and includes, without limitation, the Redemption, the AHF Acquisition, the MedPro Acquisition and the related issuances of Subordinated Indebtedness.

 

Releases ” means any release, threatened release, spill, emission, leaking, pumping, pouring, emitting, emptying, escape, injection, deposit, disposal, discharge, dispersal, dumping, leaching or migration of Hazardous Material into or through the environment.

 

Remedial Action ” means all actions required to (a) clean up, remove, treat or in any other way address any Hazardous Material in the indoor or outdoor environment, (b) prevent or minimize any Release so that a Hazardous Material does not migrate or endanger or threaten to endanger public health or welfare or the indoor or outdoor environment or (c) perform pre remedial studies and investigations and post-remedial monitoring and care with respect to any Hazardous Material.

 

Required Lenders ” means at any time (a) if there are only two Lenders, then both Lenders, (b) if there are more than two Lenders, then at least two Lenders holding more than sixty six and 2/3 percent (66 2/3%) of the sum of the Aggregate Revolving Loan Commitments then in effect, or (c) if the Aggregate Revolving Loan Commitments have terminated and there are more than two Lenders, then at least two Lenders then holding more than sixty six and 2/3 percent (66 2/3%) of the sum of the aggregate outstanding amount of Revolving Loans, outstanding Letter of Credit Obligations, amounts of participations in Swing Loans and the principal amount of unparticipated portions of Swing Loans; provided , that in the case of Section 2.2 , “Required Lenders” means one or more Lenders then holding at least 50% of the sum of the Aggregate Revolving Loan Commitments then in effect; provided further , that in the case of Section 2.2 , if one Lender holds more than 50% of the sum of the Aggregate Revolving Loan Commitments then in effect, “Required Lenders” means all the other Lenders.  For purposes of this definition, a Lender and any of its Affiliates or Approved Funds that are Lenders shall be deemed a single Lender.

 

Requirement of Law ” means with respect to any Person, the common law and any federal, state, local, foreign, multinational or international laws, statutes, codes, treaties, standards, rules and regulations, guidelines, ordinances, orders, judgments, writs, injunctions, decrees (including administrative or judicial precedents or authorities) and the interpretation or administration thereof by, and other determinations, directives, requirements or requests of, any Governmental Authority, in each case whether or not having the force of law and that are applicable to or binding upon such Person or any of its Property or Products or to which such Person or any of its Property or Products is subject. For the avoidance of doubt, the term “Requirement of Law” shall include FATCA and any intergovernmental agreements with respect thereto between the United States and another jurisdiction.

 

Reserves ” means, with respect to the Borrowing Base (a) reserves established by Agent from time to time against Eligible Accounts pursuant to Section 1.13 and Eligible Inventory pursuant to Section 1.14 , and (b) such other reserves against Eligible Accounts, Eligible Inventory or Availability that Agent may, in its Permitted Discretion, establish from time to time.  Without limiting the generality of the foregoing, Reserves established to ensure the payment of

 

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accrued interest expenses or Indebtedness shall be deemed to be an exercise of Agent’s Permitted Discretion, including reserves in respect of Bank Products and Secured Rate Contracts.

 

Responsible Officer ” means the chief executive officer or the president of the Borrower or any other officer having substantially the same authority and responsibility; or, with respect to compliance with financial covenants or delivery of financial information, the chief financial officer or the treasurer of the Borrower or any other officer having substantially the same authority and responsibility.

 

Restated Charter ” means the Second Amended and Restated Articles of Incorporation of Borrower in the form attached as Exhibit B to the Janus Series A Preferred Stock Purchase Agreement and filed with the Michigan Department of Licensing and Regulatory Affairs on or about March 31, 2014.

 

Revolving Note ” means a promissory note of the Borrower payable to a Lender in substantially the form of Exhibit 11.1(d)  hereto, evidencing Indebtedness of the Borrower under the Revolving Loan Commitment of such Lender.

 

Revolving Termination Date ” means the earliest to occur of:  (a) July 20, 2017; (b) the date on which the Aggregate Revolving Loan Commitment shall terminate in accordance with the provisions of this Agreement and (c) the date that is three months prior to the earliest maturity date of any Subordinated Indebtedness if such Subordinated Indebtedness is outstanding and has not been extended or renewed with a maturity date at least 180 days after the date specified in clause (a) above.

 

SEC ” means the Securities and Exchange Commission.

 

Secured Party ” means Agent, each Lender, each L/C Issuer, each other Indemnitee and each other holder of any Obligation of a Credit Party including each Secured Swap Provider and each provider of Bank Products.

 

Secured Rate Contract means any Rate Contract between the Borrower and the counterparty thereto, which (i) has been provided or arranged by GE Capital or an Affiliate of GE Capital, or (ii) Agent has acknowledged in writing constitutes a Secured Rate Contract hereunder.

 

Secured Swap Provider means (i) a Lender or an Affiliate of a Lender (or a Person who was a Lender or an Affiliate of a Lender at the time of execution and delivery of a Rate Contract) who has entered into a Secured Rate Contract with the Borrower, or (ii) a Person with whom the Borrower has entered into a Secured Rate Contract provided or arranged by GE Capital or an Affiliate of GE Capital, and any assignee thereof.

 

Segregated Governmental Account ” means a deposit account of a Credit Party maintained in accordance with the requirements of Section 4.11 , the only funds on deposit in which constitute the direct proceeds of Medicare and Medicaid payments made by Governmental Payors.

 

Series A Preferred Stock ” has the meaning provided in the Restated Charter.

 

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Software ” means (a) all computer programs, including source code and object code versions, (b) all data, databases and compilations of data, whether machine readable or otherwise, and (c) all documentation, training materials and configurations related to any of the foregoing.

 

Solvent ” means, with respect to any Person as of any date of determination, that, as of such date, (a) the value of the assets of such Person (both at fair value and present fair saleable value) is greater than the total amount of liabilities (including contingent and unliquidated liabilities) of such Person, (b) such Person is able to pay all liabilities of such Person as such liabilities mature and (c) such Person does not have unreasonably small capital.  In computing the amount of contingent or unliquidated liabilities at any time, such liabilities shall be computed at the amount that, in light of all the facts and circumstances existing at such time, represents the amount that can reasonably be expected to become an actual or matured liability.

 

Special Flood Hazard Area ” means an area that FEMA’s current flood maps indicate has at least a one percent (1%) chance of a flood equal to or exceeding the base flood elevation (a 100-year flood) in any given year.

 

SPV ” means any special purpose funding vehicle identified as such in a writing by any Lender to Agent.

 

Stock ” means all shares of capital stock (whether denominated as common stock or preferred stock), equity interests, beneficial, partnership or membership interests, joint venture interests, participations or other ownership or profit interests in or equivalents (regardless of how designated) of or in a Person (other than an individual), whether voting or non-voting.

 

Stock Equivalents ” means all securities convertible into or exchangeable for Stock or any other Stock Equivalent and all warrants, options or other rights to purchase, subscribe for or otherwise acquire any Stock or any other Stock Equivalent, whether or not presently convertible, exchangeable or exercisable.

 

Subordinated Indebtedness ” means the Indebtedness of any Credit Party or any Subsidiary of any Credit Party described on Schedule 11.1B and any other Indebtedness of any Credit Party or any Subsidiary of any Credit Party that is subordinated to the Obligations in a manner and form satisfactory to Agent, in its sole discretion, as to right and time of payment and as to other rights and remedies thereunder and issued pursuant to terms, conditions and documentation satisfactory to Agent, in its sole discretion, which shall at all times be subject to a Subordination Agreement.

 

Subordinated Indebtedness Documents ” means the documents governing the Subordinated Indebtedness, including any notes or note agreements, and specifically including the Subordination Agreements, in each case, in form and substance satisfactory to Agent.

 

Subordinated Noteholders ” means the holders of Subordinated Indebtedness under the Subordinated Indebtedness Documents.

 

Subordination Agreement ”, individually, and “ Subordination Agreements ”, collectively, means each of the Subordination Agreements or Subordination and Intercreditor Agreements by

 

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and among Agent, the Borrower, the other Credit Parties and the Subordinated Noteholders, as each of the same may be amended, restated and/or modified from time to time subject to the terms thereof.

 

Subsidiary ” means, with respect to any Person, any corporation, partnership, joint venture, limited liability company, association or other entity, the management of which is, directly or indirectly, controlled by, or of which an aggregate of more than fifty percent (50%) of the voting Stock is, at the time, owned or controlled directly or indirectly by, such Person or one or more Subsidiaries of such Person.

 

Swap Obligation ” means, with respect to any Guarantor, any obligation to pay or perform under any agreement, contract or transaction that constitutes a “swap” within the meaning of section 1a(47) of the Commodity Exchange Act.

 

Swartz Creek Property ” means that certain real property owned by Diplomat Corporate Properties, LLC commonly known as 2029 & 2033 South Elms Road, Swartz Creek, Michigan.

 

Sweep Agreement ” has the meaning set forth in Section 4.11(e) .

 

Swingline Commitment ” means $ 5,000,000.

 

Swingline Lender ” means, each in its capacity as Swingline Lender hereunder, GE Capital or, upon the resignation of GE Capital as Agent hereunder, any Lender (or Affiliate or Approved Fund of any Lender) that agrees, with the approval of Agent (or, if there is no such successor Agent, the Required Lenders) and the Borrower, to act as the Swingline Lender hereunder.

 

Swingline Note ” means a promissory note of the Borrower payable to the Swingline Lender, in substantially the form of Exhibit 11.1(e)  hereto, evidencing the Indebtedness of the Borrower to the Swingline Lender resulting from the Swing Loans made to the Borrower by the Swingline Lender.

 

Target means any Person or business unit or asset group of any Person acquired or proposed to be acquired in an Acquisition.

 

Tax Affiliate ” means, (a) the Borrower and its Subsidiaries and (b) any Affiliate of the Borrower with which the Borrower files or is eligible to file consolidated, combined or unitary tax returns.

 

Third Party Payor ” means any Governmental Payor, Blue Cross and/or Blue Shield, private insurers, managed care plans, and any other person or entity which presently or in the future maintains Third Party Payor Programs.

 

Third Party Payor Programs ” means all payment or reimbursement programs, sponsored or maintained by any Third Party Payor, in which any Credit Party or any Subsidiary or a Credit Party participates.

 

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Third Party Payor Authorizations ” means all participation agreements, provider or supplier agreements, enrollments, accreditations and billing numbers necessary to participate in and receive reimbursement from a Third Party Payor Program, including all Medicare and Medicaid participation agreements.

 

Title IV Plan ” means a pension plan subject to Title IV of ERISA, other than a Multiemployer Plan, to which any ERISA Affiliate incurs or otherwise has any obligation or liability, contingent or otherwise.

 

Trade Secrets ” means all right, title and interest (and all related IP Ancillary Rights) arising under any Requirement of Law in or relating to trade secrets.

 

Trademark ” means all rights, title and interests (and all related IP Ancillary Rights) arising under any Requirement of Law in or relating to trademarks, trade names, corporate names, company names, business names, fictitious business names, trade styles, service marks, logos and other source or business identifiers and, in each case, all goodwill associated therewith, all registrations and recordations thereof and all applications in connection therewith.

 

TRICARE ” means, collectively, a program of medical benefits covering former and active members of the uniformed services and certain of their dependents, financed and administered by the United States Departments of Defense, Health and Human Services and Transportation, and all laws applicable to such programs.

 

UCC ” means the Uniform Commercial Code of any applicable jurisdiction and, if the applicable jurisdiction shall not have any Uniform Commercial Code, the Uniform Commercial Code as in effect from time to time in the State of New York.

 

United States ” and “U.S.” each means the United States of America.

 

U.S. Lender Party ” means each of Agent, each Lender, each L/C Issuer, each SPV and each participant, in each case that is a United States person as defined in Section 7701(a)(30) of the Code.

 

Wholly-Owned Subsidiary ” of a Person means any Subsidiary of such Person, all of the Stock and Stock Equivalents of which (other than directors’ qualifying shares required by law) are owned by such Person, either directly or through one or more Wholly-Owned Subsidiaries of such Person.

 

11.2                         Other Interpretive Provisions .

 

(a)                                  Defined Terms .  Unless otherwise specified herein or therein, all terms defined in this Agreement or in any other Loan Document shall have the defined meanings when used in any certificate or other document made or delivered pursuant hereto.  The meanings of defined terms shall be equally applicable to the singular and plural forms of the defined terms.  Terms (including uncapitalized terms) not otherwise defined herein and that are defined in the UCC shall have the meanings therein described.

 

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(b)                                  The Agreement .  The words “hereof”, “herein”, “hereunder” and words of similar import when used in this Agreement or any other Loan Document shall refer to this Agreement or such other Loan Document as a whole and not to any particular provision of this Agreement or such other Loan Document; and subsection, section, schedule and exhibit references are to this Agreement or such other Loan Documents unless otherwise specified.

 

(c)                                   Certain Common Terms .  The term “documents” includes any and all instruments, documents, agreements, certificates, indentures, notices and other writings, however evidenced.  The term “including” is not limiting and means “including without limitation.”

 

(d)                                  Performance; Time .  Whenever any performance obligation hereunder or under any other Loan Document (other than a payment obligation) shall be stated to be due or required to be satisfied on a day other than a Business Day, such performance shall be made or satisfied on the next succeeding Business Day.  For the avoidance of doubt, the initial payments of interest and fees relating to the Obligations (other than amounts due on the Closing Date) shall be due and paid on the first day of the first month or quarter, as applicable, following the entry of the Obligations onto the operations systems of Agent, but in no event later than the first day of the second month or quarter, as applicable, following the Closing Date.  In the computation of periods of time from a specified date to a later specified date, the word “from” means “from and including”; the words “to” and “until” each mean “to but excluding”, and the word “through” means “to and including.” If any provision of this Agreement or any other Loan Document refers to any action taken or to be taken by any Person, or which such Person is prohibited from taking, such provision shall be interpreted to encompass any and all means, direct or indirect, of taking, or not taking, such action.

 

(e)                                   Contracts .  Unless otherwise expressly provided herein or in any other Loan Document, references to agreements and other contractual instruments, including this Agreement and the other Loan Documents, shall be deemed to include all subsequent amendments, thereto, restatements and substitutions thereof and other modifications and supplements thereto which are in effect from time to time, but only to the extent such amendments and other modifications are not prohibited by the terms of any Loan Document.

 

(f)                                    Laws .  References to any statute or regulation may be made by using either the common or public name thereof or a specific cite reference and are to be construed as including all statutory and regulatory provisions related thereto or consolidating, amending, replacing, supplementing or interpreting the statute or regulation.

 

11.3                         Accounting Terms and Principles .

 

All accounting determinations required to be made pursuant hereto shall, unless expressly otherwise provided herein, be made in accordance with GAAP.  No change in the accounting principles used in the preparation of any financial statement hereafter adopted by the Borrower shall be given effect for purposes of measuring compliance with any provision of Article V or VI unless the Borrower, Agent and the Required Lenders agree to modify such provisions to reflect such changes in GAAP and, unless such provisions are modified, all financial statements, Compliance Certificates and similar documents provided hereunder shall be provided together with a reconciliation between the calculations and amounts set forth therein before and after

 

130



 

giving effect to such change in GAAP.  Notwithstanding any other provision contained herein, all terms of an accounting or financial nature used herein shall be construed, and all computations of amounts and ratios referred to in Article V and Article VI shall be made, without giving effect to any election under Accounting Standards Codification 825-10 (or any other Financial Accounting Standard having a similar result or effect) to value any Indebtedness or other liabilities of any Credit Party or any Subsidiary of any Credit Party at “fair value.”  A breach of a financial covenant contained in Article VI shall be deemed to have occurred as of any date of determination by Agent or as of the last day of any specified measurement period, regardless of when the financial statements reflecting such breach are delivered to Agent.

 

11.4                         Payments .

 

Agent may set up standards and procedures to determine or redetermine the equivalent in Dollars of any amount expressed in any currency other than Dollars and otherwise may, but shall not be obligated to, rely on any determination made by any Credit Party or any L/C Issuer.  Any such determination or redetermination by Agent shall be conclusive and binding for all purposes, absent manifest error.  No determination or redetermination by any Secured Party or any Credit Party and no other currency conversion shall change or release any obligation of any Credit Party or of any Secured Party (other than Agent and its Related Persons) under any Loan Document, each of which agrees to pay separately for any shortfall remaining after any conversion and payment of the amount as converted.  Agent may round up or down, and may set up appropriate mechanisms to round up or down, any amount hereunder to nearest higher or lower amounts and may determine reasonable de minimis payment thresholds.

 

[Signature Pages Follow.]

 

131


 

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed and delivered by their duly authorized officers as of the day and year first above written.

 

 

BORROWER:

 

 

 

DIPLOMAT PHARMACY, INC.

 

 

 

 

 

By:

/s/ Philip R. Hagerman

 

Name:

Philip R. Hagerman

 

Title:

President

 

FEIN:

38-2063100

 

 

 

Address for notices:

 

Diplomat Pharmacy, Inc.

 

4100 S. Saginaw Street

 

Flint, MI 18507

 

Attn: Sean Whelan, Chief Financial Officer

 

Facsimile:

810-282-0195

 

 

 

Address for wire transfers:

 

 

 

 

 

[SIGNATURE PAGE TO AMENDED AND RESTATED CREDIT AGREEMENT]

 



 

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed and delivered by their duly authorized officers as of the day and year first above written.

 

 

NAVIGATOR HEALTH SERVICES, LLC

 

 

 

By:

/s/ Philip R. Hagerman

 

Name:

Philip R. Hagerman

 

Title:

Manager

 

FEIN:

45-5542014

 

 

 

Address for notices:

 

c/o Diplomat Pharmacy, Inc.

 

4100 S. Saginaw Street

 

Flint, MI 18507

 

Attn: Sean Whelan, Chief Financial Officer

 

Facsimile:

810-282-0195

 

 

 

 

DIPLOMAT HEALTH SERVICES, LLC

 

 

 

By: Diplomat Pharmacy, Inc., its member

 

 

 

By:

/s/ Philip R. Hagerman

 

Name:

Philip R. Hagerman

 

Title:

President

 

FEIN:

45-5545741

 

 

 

Address for notices:

 

c/o Diplomat Pharmacy, Inc.

 

4100 S. Saginaw Street

 

Flint, MI 18507

 

Attn: Sean Whelan, Chief Financial Officer

 

Facsimile:

810-282-0195

 

 

 

DIPLOMAT SPECIALTY PHARMACY OF FLINT, LLC

 

 

 

By:

Diplomat Pharmacy, Inc., its member

 

 

 

By:

/s/ Philip R. Hagerman

 

Name:

Philip R. Hagerman

 

Title:

President

 

FEIN: 20-2372657

 

 

 

Address for notices:

 

c/o Diplomat Pharmacy, Inc.

 

4100 S. Saginaw Street

 

Flint, MI 18507

 

Attn: Sean Whelan, Chief Financial Officer

 

Facsimile:

810-282-0195

 

[SIGNATURE PAGE TO AMENDED AND RESTATED CREDIT AGREEMENT]

 



 

 

DIPLOMAT SPECIALTY PHARMACY OF GRAND RAPIDS, LLC

 

 

 

By: Diplomat Pharmacy, Inc., its member

 

 

 

By:

/s/ Philip R. Hagerman

 

Name:

Philip R. Hagerman

 

Title:

President

 

FEIN: 20-2372751

 

 

 

Address for notices:

 

c/o Diplomat Pharmacy, Inc.

 

4100 S. Saginaw Street

 

Flint, MI 18507

 

Attn: Sean Whelan, Chief Financial Officer

 

Facsimile:

810-282-0195

 

 

 

DIPLOMAT SPECIALTY PHARMACY OF CHICAGO, LLC

 

 

 

By: Diplomat Pharmacy, Inc., its member

 

 

 

By:

/s/ Philip R. Hagerman

 

Name:

Philip R. Hagerman

 

Title:

President

 

FEIN: 20-3855530

 

 

 

Address for notices:

 

c/o Diplomat Pharmacy, Inc.

 

4100 S. Saginaw Street

 

Flint, MI 18507

 

Attn: Sean Whelan, Chief Financial Officer

 

Facsimile:

810-282-0195

 

 

 

DIPLOMAT SPECIALTY PHARMACY OF FT. LAUDERDALE, LLC

 

 

 

By: Diplomat Pharmacy, Inc., its member

 

 

 

By:

/s/ Philip R. Hagerman

 

Name:

Philip R. Hagerman

 

Title:

President

 

FEIN: 26-0146551

 

 

 

Address for notices:

 

c/o Diplomat Pharmacy, Inc.

 

4100 S. Saginaw Street

 

Flint, MI 18507

 

Attn: Sean Whelan, Chief Financial Officer

 

Facsimile:

810-282-0195

 

[SIGNATURE PAGE TO AMENDED AND RESTATED CREDIT AGREEMENT]

 



 

 

DIPLOMAT SPECIALTY PHARMACY OF SOUTHERN CALIFORNIA, LLC

 

 

 

By: Diplomat Pharmacy, Inc., its member

 

 

 

By:

/s/ Philip R. Hagerman

 

Name:

Philip R. Hagerman

 

Title:

President

 

FEIN: 27-1148085

 

 

 

Address for notices:

 

c/o Diplomat Pharmacy, Inc.

 

4100 S. Saginaw Street

 

Flint, MI 18507

 

Attn: Sean Whelan, Chief Financial Officer

 

Facsimile:

810-282-0195

 

 

 

DIPLOMAT SPECIALTY PHARMACY GREAT LAKES DISTRIBUTION CENTER, LLC

 

 

 

By: Diplomat Pharmacy, Inc., its member

 

 

 

By:

/s/ Philip R. Hagerman

 

Name:

Philip R. Hagerman

 

Title:

President

 

FEIN: 20-8576702

 

 

 

Address for notices:

 

c/o Diplomat Pharmacy, Inc.

 

4100 S. Saginaw Street

 

Flint, MI 18507

 

Attn: Sean Whelan, Chief Financial Officer

 

Facsimile:

810-282-0195

 

 

 

DSP FLINT REAL ESTATE, LLC

 

 

 

By:

/s/ Philip R. Hagerman

 

Name:

Philip R. Hagerman

 

Title:

Manager

 

FEIN: 27-2176462

 

 

 

Address for notices:

 

c/o Diplomat Pharmacy, Inc.

 

4100 S. Saginaw Street

 

Flint, MI 18507

 

Attn: Sean Whelan, Chief Financial Officer

 

Facsimile:

810-282-0195

 

[SIGNATURE PAGE TO AMENDED AND RESTATED CREDIT AGREEMENT]

 



 

 

DSP-BUILDING C, LLC

 

 

 

By:

/s/ Philip R. Hagerman

 

Name:

Philip R. Hagerman

 

Title:

Manager

 

FEIN: 27-2499399

 

 

 

Address for notices:

 

c/o Diplomat Pharmacy, Inc.

 

4100 S. Saginaw Street

 

Flint, MI 18507

 

Attn: Sean Whelan, Chief Financial Officer

 

Facsimile:

810-282-0195

 

 

 

DIPLOMAT CORPORATE PROPERTIES, LLC

 

 

 

By: Diplomat Pharmacy, Inc., its member

 

 

 

By:

/s/ Philip R. Hagerman

 

Name:

Philip R. Hagerman

 

Title:

President

 

FEIN:

38-3453193

 

 

 

Address for notices:

 

c/o Diplomat Pharmacy, Inc.

 

4100 S. Saginaw Street

 

Flint, MI 18507

 

Attn: Sean Whelan, Chief Financial Officer

 

Facsimile:

810-282-0195

 

 

 

DIPLOMAT INFUSION SERVICES, LLC

 

 

 

By:

/s/ Philip R. Hagerman

 

Name:

Philip R. Hagerman

 

Title:

Manager

 

FEIN:

45-5554285

 

 

 

Address for notices:

 

c/o Diplomat Pharmacy, Inc.

 

4100 S. Saginaw Street

 

Flint, MI 18507

 

Attn: Sean Whelan, Chief Financial Officer

 

Facsimile:

810-282-0195

 

[SIGNATURE PAGE TO AMENDED AND RESTATED CREDIT AGREEMENT]

 



 

 

DIPLOMAT HOLDING, LLC

 

 

 

By:

/s/ Philip R. Hagerman

 

Name: Philip R. Hagerman

 

Title: Manager

 

FEIN: 45-5566673

 

 

 

Address for notices:

 

c/o Diplomat Pharmacy, Inc.

 

4100 S. Saginaw Street

 

Flint, MI 18507

 

Attn: Sean Whelan, Chief Financial Officer

 

Facsimile:

810-282-0195

 

 

 

 

 

DIPLOMAT HEALTH MANAGEMENT, LLC

 

 

 

By:

/s/ Philip R. Hagerman

 

Name:

Philip R. Hagerman

 

Title:

Manager

 

FEIN: 45-5579620

 

 

 

Address for notices:

 

c/o Diplomat Pharmacy, Inc.

 

4100 S. Saginaw Street

 

Flint, MI 18507

 

Attn: Sean Whelan, Chief Financial Officer

 

Facsimile:

810-282-0195

 

 

 

 

 

ENVOY HEALTH MANAGEMENT, LLC

 

 

 

By:

/s/ Jeffrey Rowe

 

Name:

Jeffrey Rowe

 

Title:

Manager

 

FEIN:

45-2301399

 

 

 

Address for notices:

 

c/o Diplomat Pharmacy, Inc.

 

4100 S. Saginaw Street

 

Flint, MI 18507

 

Attn: Sean Whelan, Chief Financial Officer

 

Facsimile:

810-282-0195

 

[SIGNATURE PAGE TO AMENDED AND RESTATED CREDIT AGREEMENT]

 



 

 

AMERICAN HOMECARE FEDERATION, INC.

 

 

 

By:

/s/ Jeffrey Rowe

 

Name:

Jeffrey Rowe

 

Title:

President

 

FEIN:

 

 

 

Address for notices:

 

c/o Diplomat Pharmacy, Inc.

 

4100 S. Saginaw Street

 

Flint, MI 18507

 

Attn: Sean Whelan, Chief Financial Officer

 

Facsimile:

810-282-0195

 

 

 

AMBASSADOR COMPOUNDING, LLC

 

 

 

By:

/s/ Jeffrey Rowe

 

Name:

Jeffrey Rowe

 

Title:

Manager

 

FEIN:

 

 

 

Address for notices:

 

c/o Diplomat Pharmacy, Inc.

 

4100 S. Saginaw Street

 

Flint, MI 18507

 

Attn: Sean Whelan, Chief Financial Officer

 

Facsimile:

810-282-0195

 

 

 

MEDPRO RX, INC.

 

 

 

By:

/s/ Jeffrey Rowe

 

Name:

Jeffrey Rowe

 

Title:

Manager

 

FEIN:

 

 

 

Address for notices:

 

c/o Diplomat Pharmacy, Inc.

 

4100 S. Saginaw Street

 

Flint, MI 18507

 

Attn: Sean Whelan, Chief Financial Officer

 

Facsimile:

810-282-0195

 

[SIGNATURE PAGE TO AMENDED AND RESTATED CREDIT AGREEMENT]

 



 

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed and delivered by their duly authorized officers as of the day and year first above written.

 

 

GENERAL ELECTRIC CAPITAL CORPORATION, as Agent and Swingline Lender

 

 

 

By:

/s/ Jason M. Dufour

 

Name: Jason M. Dufour

 

Title: Duly Authorized Signatory

 

Address for Notices:

Address for payments:

 

General Electric Capital Corporation

Two Bethesda Metro Center, Suite 600

Bethesda,  Maryland  20814

Attn: Diplomat Pharmacy, Inc. Account Mgr.

Facsimile:  (301) 664-9855

 

E-mail:  CapitalGECHFSABLReporting@ge.com

 

With copies to:

 

General Electric Capital Corporation

c/o GE Healthcare Financial Services, Inc.

Two Bethesda Metro Center, Suite 600

Bethesda,  Maryland  20814

Attention: General Counsel

Phone: (301) 961-1640

Facsimile:  (301) 664-9866

 

And

 

General Electric Capital Corporation

500 W. Monroe Street, 14th Floor

Chicago, Illinois 60661

Attention:  Ted Tuerk

Facsimile: (312) 873-4367


ABA No. 021-001-033

Account Number 50287265

Deutsche Bank Trust Company Americas

New York, New York

Account Name: GECC HFS CF Agented

Reference: HFS3117 / Diplomat Pharmacy

 

[SIGNATURE PAGE TO AMENDED AND RESTATED CREDIT AGREEMENT]

 



 

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed and delivered by their duly authorized officers as of the day and year first above written.

 

 

GE CAPITAL BANK ,

 

as a Lender

 

 

 

By:

/s/ Jeffrey Thoms

 

Name:

Jeffrey Thoms

 

Title:

Duly Authorized Signatory

 

 

 

 

 

Address for notices:

 

 

 

GE Capital Bank

 

c/o General Electric Capital Corporation

 

Two Bethesda Metro Center, Suite 600

 

Bethesda, Maryland 20814

 

Attn: Diplomat Pharmacy, Inc. Account Mgr.

 

Facsimile: (301) 664-9855

 

 

 

With a copy to:

 

 

 

GE Capital Bank

 

6510 Millrock Drive

 

Suite 200

 

Salt Lake City, Utah 84121

 

Attn: Chief Financial Officer

 

 

 

Lending office:

 

 

 

GE Capital Bank

 

c/o General Electric Capital Corporation

 

Two Bethesda Metro Center, Suite 600

 

Bethesda, Maryland 20814

 

Attn: Diplomat Pharmacy, Inc. Account Mgr.

 

Facsimile: (301) 664-9855

 

 

 

With a copy to:

 

 

 

GE Capital Bank

 

6510 Millrock Drive

 

Suite 200

 

Salt Lake City, Utah 84121

 

Attn: Chief Financial Officer

 

[SIGNATURE PAGE TO AMENDED AND RESTATED CREDIT AGREEMENT]

 



 

 

COMERICA BANK,

 

as a Lender

 

 

 

By:

/s/ Michael Cliff

 

Name:

Michael Cliff

 

Title:

Vice President

 

 

 

Address for notices:

 

411 W. Lafayette

 

Detroit, MI 48226

 

Attn: Michael Cliff

 

Facsimile: (313) 222-1237

 

 

 

Lending office:

 

 

 

Same as above

 

 

 

 

 

JPMORGAN CHASE BANK, N.A.,

 

as a Lender

 

 

 

By:

/s/ Wieslaw R. Sliwinski

 

Name: Wieslaw R. Sliwinski

 

Title: Underwriter II - CB

 

 

 

Address for notices:

 

JPMorgan Chase Bank, N.A.

 

28660 Northwestern Highway

 

Southfield, Michigan 48034

 

Attn: Wieslaw (Wes) R. Sliwinski

 

Facsimile: 855-897-9864

 

 

 

Lending office:

 

 

 

Same as above

 

[SIGNATURE PAGE TO AMENDED AND RESTATED CREDIT AGREEMENT]

 



 

 

WELLS FARGO BANK, N.A.,

 

 

 

as a Lender

 

 

 

By:

/s/ Steve Scott

 

Name: Steve Scott

 

Title: Duly Authorized Signatory

 

 

 

Address for notices:

 

Wells Fargo Bank, National Association

 

2450 Colorado Avenue, Suite 3000 West

 

Santa Monica, California 90404

 

Attn:

Specialty Finance Loan Portfolio Manager

 

Facsimile:

(866) 358-0913

 

 

 

Lending office:

 

 

 

 

 

[SIGNATURE PAGE TO AMENDED AND RESTATED CREDIT AGREEMENT]

 



 

SCHEDULE 1.1(b)

TO

AMENDED AND RESTATED CREDIT AGREEMENT

 

Revolving Loan Commitments

 

GE Capital Bank

 

$

51,000,000

 

Comerica Bank

 

$

25,500,000

 

JPMorgan Chase Bank, N.A.

 

$

25,500,000

 

Wells Fargo Bank, N.A.

 

$

18,000,000

 

Aggregate Commitments

 

$

120,000,000

 

 


 

SCHEDULE 3.5
TO
AMENDED AND RESTATED CREDIT AGREEMENT

 

LITIGATION

 

None.

 



 

SCHEDULE 3.7

TO

AMENDED AND RESTATED CREDIT AGREEMENT

 

ERISA PLANS

 

·                   BCBS PPO 500— Medical

·                   BCBS PPO 1500— Medical

·                   BCBS PPO 2500— Medical

·                   BCN HMO 1000— Medical

·                   BCN HMO2500— Medical

·                   Priority Health HMO — Medical

·                   Met Life — Dental, Short-term Disability, Long-Term Disability, Life (Basic — company paid, Voluntary — employee paid)

·                   Paychex — Section125, Flexible Spending Account

·                   Paychex — 401K (Safe Harbor)

·                   ENI - Employee Assistance Program

 



 

SCHEDULE 3.9

TO

AMENDED AND RESTATED CREDIT AGREEMENT

 

REAL ESTATE

 

Owned Real Estate

 

Owner

 

Address

 

Leases of Owned Real Property

DSP-Building C, LLC

 

4100 S. SAGINAW STREET
FLINT, MI 48507-2687
(Building C)

 

Lease between DSP Building C, LLC as Lessor, and Diplomat Pharmacy, Inc. as Lessee dated 6/1/10

 

Lease between DSP Building C, LLC as Lessor, and Navigator Pharmacy Services, LLC as Lessee dated 6/1/11

 

 

 

 

 

DSP Flint Real Estate, LLC

 

325 W. ATHERTON ROAD
FLINT, MI 48507-2601
(Buildings B & D)

 

Lease between DSP Flint Real Estate, LLC as Lessor, and Diplomat Pharmacy, Inc. as Lessee dated 6/1/10

 

 

 

 

 

Diplomat Corporate Properties, LLC

 

G-3320 BEECHER ROAD
FLINT, MI 48532

 

n/a

 

 

 

 

 

Diplomat Corporate Properties, LLC

 

2029 & 2033 S. ELMS ROAD
SWARTZ CREEK, MI 48473

 

Lease between Diplomat Corporate Properties, LLC and Schindler Elevator Corporation dated June 1, 2011

 

Lease between Diplomat Corporate Properties, LLC and Growth Management Group, Inc. dated November 22, 2010

 

 

 

 

 

 

 

 

 

Lease between Diplomat Corporate Properties, LLC and Flenniken Financial dated September 26, 2005

 

 

 

 

 

 

 

 

 

Lease between Diplomat Corporate Properties, LLC and RGIS Inventory Specialists dated November 1, 2013

 

 

 

 

 

 

 

 

 

Lease between Diplomat Corporate Properties, LLC and Future Engineering, Inc. dated July 6, 2005

 



 

Leased Real Estate

 

Lessee

 

Address

 

Landlord

 

Date of Lease
Agreement

Diplomat Pharmacy, Inc.

 

214 E. FULTON STREET
GRAND RAPIDS, MI 49503-3211

 

The Ellen Van Assen Trust

 

December 16, 2004

 

 

 

 

 

 

 

Diplomat Specialty Pharmacy of Chicago, LLC

 

1370 BUSCH PARKWAY
BUFFALO GROVE, IL 60089-4505

 

CGA Investment Company, L.L.C.

 

December 6, 2010

 

 

 

 

 

 

 

Diplomat Specialty Pharmacy of Ft. Lauderdale, LLC

 

500 SE 15 TH  STREET, STE. 102
FT. LAUDERDALE, FL 33316-1952

 

500 Tarpon LLC

 

May 3, 2012

 

 

 

 

 

 

 

Diplomat Specialty Pharmacy of Southern California, LLC

 

1809 EXCISE AVENUE, STE. 205-208
ONTARIO, CA 91761-8560

 

ACCO Airport CenterI, LLC

 

December 15, 2011

 

 

 

 

 

 

 

American Homecare Federation, Inc.

 

95 Ashley Avenue
West Springfield, Massachusetts

 

Ashley Associates, LLC

 

February 26, 2009

 

 

 

 

 

 

 

American Homecare Federation, Inc.

 

31 Moody Road
Enfield, Connecticut
Hartford County

 

31 Moody Road, LLC

 

December 16, 2013

 



 

SCHEDULE 3.12

TO

AMENDED AND RESTATED CREDIT AGREEMENT

 

ENVIRONMENTAL

 

3.12(a)(v)

 

Due Care Plan and Phase II Environmental Site Assessment and Category-N Baseline Environmental Assessment, dated May 2, 2010 prepared by PM Environmental, Inc.

 



 

SCHEDULE 3.15

TO

AMENDED AND RESTATED CREDIT AGREEMENT

 

LABOR RELATIONS

 

None

 


 

SCHEDULE 3.16

TO

AMENDED AND RESTATED CREDIT AGREEMENT

 

INTELLECTUAL PROPERTY

 

Trademarks

 

Trademark

 

Jurisdiction

 

Registration
Number

 

Serial
Number

 

Status/Status
Date

 

Owner

 

Filing
Date

 

Registration
Date

 

Full Goods/Services

 

Licenses
Granted

DIPLOMAT SPECIALTY PHARMACY

 

USPTO

 

3,875,888

 

77-896402

 

Registered November 16, 2010

 

Diplomat Pharmacy, Inc.

 

December 18, 2009

 

November 16, 2010

 

(Int’l Class: 44) Pharmacy services

 

None

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

ENAV

 

USPTO

 

3,859,520

 

77-896403

 

Registered October 12, 2010

 

Diplomat Pharmacy, Inc.

 

December 18, 2009

 

October 12, 2010

 

(Int’l Class: 44) Pharmacy services and providing an internet web site for medical professionals and medical patients for patient care that allows for the exchange of information from remote locations using devices that feed information to the web site that is then processed and can be accessed in real-time by users

 

None

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

KEEPING PATIENTS HEALTHIER...LONGER

 

USPTO

 

3,824,892

 

77-896405

 

Registered July 27, 2010

 

Diplomat Pharmacy, Inc.

 

December 18, 2009

 

July 27, 2010

 

(Int’l Class: 44) Pharmacy services

 

None

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

DIPLOMAT

 

USPTO

 

4365666

 

SN:85-589865

 

Registered July 9, 2013

 

Diplomat Pharmacy, Inc.

 

April 5, 2012

 

July 9, 2013

 

(Int’l Class: 44) Pharmacy services

 

None

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

USPTO

 

1720982

 

74235173

 

Registered September 29, 1992

 

American Homecare Federation, Inc.

 

January 6, 1992

 

September 29, 1992

 

INT. CL. 42 hemophilia homecare delivery services; namely, delivering to customers, medicine, gauze, needles, syringes, and other related supplies

 

None

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

AHF

 

USPTO

 

1722812

 

74233719

 

Registered October 6, 1992

 

American Homecare Federation, Inc.

 

December 27, 1991

 

October 6, 1992

 

INT. CL. 42 hemophilia homecare delivery services; namely, delivering to customers medicine, gauze, needles, syringes, and other related supplies

 

None

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

AHF

 

North Dakota

 

27448100

 

n/a

 

Registered November 23, 2010

 

American Homecare Federation, Inc.

 

n/a

 

November 23, 2010

 

n/a

 

None

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

ENVOYHEALTH

 

USPTO

 

n/a

 

86212969

 

Applied March 6, 2014

 

Diplomat Pharmacy, Inc.

 

March 6, 2014

 

n/a

 

(Int’l Class 35) Providing electronic healthcare administrative services.

 

None

 


 

Patents

 

None.

 

Registered Copyrights

 

None.

 

Software

 

Owner

 

Title

 

Jurisdiction

 

Registration #/
Application #

 

Licenses Granted

Diplomat Pharmacy, Inc.

 

eNAV
(Diplomat Pharmacy, Inc. possesses an unregistered copyright.)

 

N/A

 

N/A

 

Non-exclusive, non-transferable license to Costco Wholesale Corporation

 

Domain Names

 

Owner

 

Title

 

Jurisdiction

 

Registration #/
Application #

 

Licenses Granted

Diplomat Pharmacy, Inc.

 

http://diplomatpharmacy.com

 

Register.com

 

N/A

 

None

Diplomat Pharmacy, Inc.

 

http://diplomatpharmacy.wordpress.com/

 

Register.com

 

N/A

 

None

Diplomat Pharmacy, Inc.

 

http://hemophilianavigator.com/

 

Register.com

 

N/A

 

None

Diplomat Pharmacy, Inc.

 

http://diplomatuniversity.com

 

Register.com

 

N/A

 

None

Diplomat Pharmacy, Inc.

 

http://diplomatconnect.com

 

Register.com

 

N/A

 

None

Diplomat Pharmacy, Inc.

 

http://callnhs.com

 

Register.com

 

N/A

 

None

Diplomat Pharmacy, Inc.

 

http://cfnavigator.com

 

Register.com

 

N/A

 

None

Diplomat Pharmacy, Inc.

 

http://chronsnavigator.com

 

Register.com

 

N/A

 

None

Diplomat Pharmacy, Inc.

 

http://ckdnav.com

 

Register.com

 

N/A

 

None

Diplomat Pharmacy, Inc.

 

http://crohnsnavigator.com

 

Register.com

 

N/A

 

None

Diplomat Pharmacy, Inc.

 

http://diplomathelpinghands.com

 

Register.com

 

N/A

 

None

Diplomat Pharmacy, Inc.

 

http://ghnavigator.com

 

Register.com

 

N/A

 

None

Diplomat Pharmacy, Inc.

 

http://hepatitisnavigator.com

 

Register.com

 

N/A

 

None

Diplomat Pharmacy, Inc.

 

http://oncologynav.com

 

Register.com

 

N/A

 

None

Diplomat Pharmacy, Inc.

 

http://psoriasisnavigator.com

 

Register.com

 

N/A

 

None

 



 

Diplomat Pharmacy, Inc.

 

http://ranavigator.com

 

Register.com

 

N/A

 

None

American Homecare Federation, Inc.

 

http://Ahfinfo.com

 

 

 

N/A

 

None

Diplomat Pharmacy, Inc.

 

http://diplomat.is

 

 

 

N/A

 

None

 


 

SCHEDULE 3.18

TO

AMENDED AND RESTATED CREDIT AGREEMENT

 

INSURANCE CERTIFICATE

 



 

SCHEDULE 3.19

TO

AMENDED AND RESTATED CREDIT AGREEMENT

 

VENTURES, SUBSIDIARIES AND AFFILIATES; OUTSTANDING STOCK

 

1)              The ownership of Diplomat Pharmacy, Inc. is as set forth on the attached capitalization table (the “ Cap Table ”)

 

·                   Note: Pursuant to a Stock Redemption Agreement, dated January 17, 2005, as amended by that certain Amendment #1 to the Stock Redemption Agreement dated June 7, 2012, in the event that (a) Philip R. Hagerman sells his shares of Diplomat Pharmacy, Inc. so that following such sale he is no longer the majority shareholder of Diplomat Pharmacy, Inc. or (b) substantially all of the assets of Diplomat Pharmacy, Inc. are sold (collectively, the “ Sale ”), Deborah L. Ward shall receive one percent (1%) of the net proceeds of the Sale.

 

·                   In February 2012, Diplomat Pharmacy, Inc. redeemed 650 shares owned by Steve Chafee and the Chaffee Family Trust.  These shares were redeemed for $2,000,000 cash along with an $18,716,963 promissory note payable over five years in quarterly installments of $725,001 from July 2012 through October 2013, then $845,835 from January 2014 through October 2016, including interest along with a final payment of $5,000,000, plus any remaining principal and accrued interest, due at maturity.  It bears interest at 1.3% and matures on January 10, 2017.  This note is secured by redeemed shares, which are held in escrow until released pursuant to the associated Pledge and Escrow Agreement.

 

·                   In September 2012, Diplomat Pharmacy, Inc. redeemed 275 shares owned by Jeffrey Rowe.  These shares were redeemed for $785,700 cash along with an $8,061,966  promissory note payable over five years in quarterly installments of $100,000, along with a final payment of $6,161,966, plus any remaining principal and accrued interest, due at maturity.  It bears interest at 1.3% and matures on July 20, 2017.  This note is secured by redeemed shares, which are held in escrow until released pursuant to the associated Pledge and Escrow Agreement.

 

2)              All of the issued and outstanding equity interests of each of the following subsidiaries are 100% owned directly by Diplomat Pharmacy, Inc.:

 

ENVOY HEALTH MANAGEMENT, LLC

NAVIGATOR HEALTH SERVICES, LLC

DIPLOMAT HEALTH SERVICES, LLC

DIPLOMAT SPECIALTY PHARMACY OF FLINT, LLC

DIPLOMAT SPECIALTY PHARMACY OF GRAND RAPIDS, LLC

DIPLOMAT SPECIALTY PHARMACY OF CHICAGO, LLC

DIPLOMAT SPECIALTY PHARMACY OF FT. LAUDERDALE, LLC

 



 

DIPLOMAT SPECIALTY PHARMACY OF SOUTHERN CALIFORNIA, LLC

DIPLOMAT SPECIALTY PHARMACY GREAT LAKES DISTRIBUTION CENTER, LLC

DSP FLINT REAL ESTATE, LLC          

DSP-BUILDING C, LLC

DIPLOMAT CORPORATE PROPERTIES, LLC

DIPLOMAT HOLDING, LLC

DIPLOMAT INFUSION SERVICES, LLC

DIPLOMAT HEALTH MANAGEMENT, LLC

AMERICAN HOMECARE FEDERATION, INC.

AMBASSADOR COMPOUNDING, LLC

 

3)              Diplomat Pharmacy, Inc. is engaged in a joint venture with Ageology LLC (formerly WorkSmartMD LLC).

 

4)              Diplomat has entered into stock option award agreements with the option holders identified on the Cap Table.

 

5)              First Amended and Restated Investors’ Rights Agreement, dated March 31, 2014, between Diplomat Pharmacy, Inc. and the holders of the Company’s Series A Preferred Stock

 

6)              First Amended and Restated Right of First Refusal, Co-Sale and Drag-Along Agreement, dated March 31, 2014, between Diplomat Pharmacy, Inc. and the other parties thereto

 

7)              Restated Charter

 

8)              Organizational Chart: See Attached

 


 

 


 

SCHEDULE 3.20

TO

AMENDED AND RESTATED CREDIT AGREEMENT

 

JURISDICTION OF ORGANIZATION; CHIEF EXECUTIVE OFFICE

 

Each Credit Party is organized in the State of Michigan and the chief executive office is located at 4100 S. Saginaw St., Flint, Michigan.

 

CREDIT PARTY

 

ORGANIZATIONAL
ID

DIPLOMAT PHARMACY, INC.

 

099705

ENVOY HEALTH MANAGEMENT, LLC

 

D5993K

NAVIGATOR HEALTH SERVICES, LLC

 

D3758P

DIPLOMAT HOLDING, LLC

 

D0056Q

DIPLOMAT SPECIALTY PHARMACY OF FLINT, LLC

 

B7143L

DIPLOMAT SPECIALTY PHARMACY OF GRAND RAPIDS, LLC

 

B1155L

DIPLOMAT SPECIALTY PHARMACY OF CHICAGO, LLC

 

B6616Y

DIPLOMAT SPECIALTY PHARMACY OF FT. LAUDERDALE, LLC

 

D15734

DIPLOMAT SPECIALTY PHARMACY OF SOUTHERN CALIFORNIA, LLC

 

D2823M

DIPLOMAT SPECIALTY PHARMACY GREAT LAKES DISTRIBUTION CENTER, LLC

 

D1555U

DSP FLINT REAL ESTATE, LLC

 

D3982L

DSP-BUILDING C, LLC

 

D42349

DIPLOMAT CORPORATE PROPERTIES, LLC

 

E15980

DIPLOMAT HEALTH SERVICES, LLC

 

D37755P

DIPLOMAT INFUSION SERVICES, LLC

 

D06531

DIPLOMAT HEALTH MANAGEMENT, LLC

 

D06532

AMERICAN HOMECARE FEDERATION, INC.

 

0608788

AMBASSADOR COMPOUNDING, LLC

 

E3846U

 

Former Names

 

Credit Party

 

Former Name

 

Date of Change

Diplomat Holding, LLC

 

Diplomat Health Services, LLC

 

June 27, 2006

Diplomat Specialty Pharmacy of Flint, LLC

 

Diplomat Specialty Pharmacy, LLC

 

January 18, 2010

Diplomat Specialty Pharmacy Great Lakes Distribution Center, LLC

 

Diplomat Specialty Pharmacy of Swartz Creek, LLC

 

March 6, 2007

Envoy Health Management, LLC

 

Navigator Pharmacy Services, LLC

 

February 10, 2014

 



 

SCHEDULE 3.21

TO

AMENDED AND RESTATED CREDIT AGREEMENT

 

LOCATIONS OF INVENTORY, EQUIPMENT AND BOOKS AND RECORDS

 

Credit Party

 

Collateral Locations

Diplomat Pharmacy, Inc.

 

*4100 S. SAGINAW STREET, SUITE D
FLINT, MI 48507-2687

 

 

2029 & 2033 S. ELMS ROAD
SWARTZ CREEK, MI 48473

 

 

1370 BUSCH PARKWAY
BUFFALO GROVE, IL 60089-4505

 

 

G-3320 BEECHER ROAD
FLINT, MI 48532

 

 

500 SE 15 TH  STREET, STE. 102
FT. LAUDERDALE, FL 33316-1952

 

 

214 E. FULTON STREET
GRAND RAPIDS, MI 49503-3211

 

 

1809 EXCISE AVENUE, STE. 205-208
ONTARIO, CA 91761-8560

 

 

325 W. ATHERTON ROAD
FLINT, MI 48507-2601

Diplomat Corporate Properties, LLC

 

*4100 S. SAGINAW STREET, SUITE D
FLINT, MI 48507-2687

Diplomat Health Management, LLC

 

*4100 S. SAGINAW STREET, SUITE D
FLINT, MI 48507-2687

Diplomat Holding, LLC

 

*4100 S. SAGINAW STREET, SUITE D
FLINT, MI 48507-2687

Diplomat Health Services, LLC

 

*4100 S. SAGINAW STREET, SUITE D
FLINT, MI 48507-2687

Diplomat Infusion Services, LLC

 

*4100 S. SAGINAW STREET, SUITE D
FLINT, MI 48507-2687

Diplomat Specialty Pharmacy Great Lakes Distribution Center, LLC

 

*4100 S. SAGINAW STREET, SUITE D
FLINT, MI 48507-2687

Diplomat Specialty Pharmacy of Chicago, LLC

 

*1370 BUSCH PARKWAY
BUFFALO GROVE, IL 60089-4505

 

 

4100 S. SAGINAW STREET, SUITE D
FLINT, MI 48507-2687

Diplomat Specialty Pharmacy of Flint, LLC

 

*G-3320 BEECHER ROAD
FLINT, MI 48532

 

 

4100 S. SAGINAW STREET, SUITE D
FLINT, MI 48507-2687

Diplomat Specialty Pharmacy of Ft. Lauderdale, LLC

 

*500 SE 15 TH  STREET, STE. 102
FT. LAUDERDALE, FL 33316-1952

 

 

4100 S. SAGINAW STREET, SUITE D
FLINT, MI 48507-2687

Diplomat Specialty Pharmacy of Grand Rapids, LLC

 

*214 E. FULTON STREET
GRAND RAPIDS, MI 49503-3211

 

 

4100 S. SAGINAW STREET, SUITE D
FLINT, MI 48507-2687

Diplomat Specialty Pharmacy of Southern California, LLC

 

*1809 EXCISE AVENUE, STE. 205-208
ONTARIO, CA 91761-8560

 



 

Credit Party

 

Collateral Locations

 

 

4100 S. SAGINAW STREET, SUITE D
FLINT, MI 48507-2687

DSP-Building C, LLC

 

*4100 S. SAGINAW STREET, SUITE D
FLINT, MI 48507-2687

DSP Flint Real Estate, LLC

 

*4100 S. SAGINAW STREET, SUITE D
FLINT, MI 48507-2687

Navigator Health Services, LLC

 

*4100 S. SAGINAW STREET, SUITE D
FLINT, MI 48507-2687

Envoy Health Management, LLC

 

*325 W. ATHERTON ROAD
FLINT, MI 48507-2601

 

 

4100 S. SAGINAW STREET, SUITE D
FLINT, MI 48507-2687

 

 

*31 MOODY ROAD, ENFIELD, HARTFORD COUNTY,
CONNECTICUT

American Homecare Federation, Inc.

 

95 ASHLEY AVENUE, WEST SPRINGFIELD,
MASSACHUSETTS

 

 

30 LOCUST ST, NORTHAMPTON, MA 01061

 


*Indicates books and records of Credit Party maintained at location.

 


 

SCHEDULE 3.22

TO

AMENDED AND RESTATED CREDIT AGREEMENT

 

DEPOSIT ACCOUNTS AND OTHER ACCOUNTS

 



 

SCHEDULE 3.23

TO

AMENDED AND RESTATED CREDIT AGREEMENT

 

GOVERNMENT CONTRACTS

 

None

 



 

SCHEDULE 3.25

TO

AMENDED AND RESTATED CREDIT AGREEMENT

 

BONDING

 

None

 



 

SCHEDULE 3.31

TO

AMENDED AND RESTATED CREDIT AGREEMENT

 

REGULATORY MATTERS

 

(See attached)

 


 

DIPLOMAT SPECIALTY PHARMACY

PHARMACY LICENSES

 

Summary Tab

 

State License Expiration Dates (Check individual tabs for more information)

 

 

 

 

 

 

 

 

 

Grand

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

State

 

CHI –

 

Flint–

 

 

 

Rapids

 

Ontario CA –

 

GLDC

 

GLDC

 

DPS Envoy

 

Envoy

 

 

 

 

 

FLO

 

State

 

Abbr.

 

Pharmacy

 

Pharmacy

 

Ft. Lauderdale

 

Pharmacy

 

Pharmacy

 

Pharmacy

 

Wholesale

 

Wholesale

 

Pharmacy

 

AHF CT

 

AHF MA

 

Wholesale

 

Alabama

 

AL

 

 

 

12/31/2014

 

 

 

12/31/2014

 

12/31/2014

 

12/31/2014

 

12/31/2014

 

12/31/2014

 

 

 

 

Alabama CS

 

AL

 

 

 

12/31/2014

 

 

 

12/31/2014

 

 

 

12/31/2014

 

 

 

 

 

Alaska

 

AK

 

 

 

 

 

6/30/2014

 

6/30/2014

 

 

 

6/30/2016

 

6/30/2014

 

 

 

 

Arizona

 

AZ

 

 

10/31/2015

 

 

 

 

10/31/2015

 

10/31/2015

 

10/31/2014

 

10/31/2014

 

n/a

 

 

 

 

Arkansas

 

AR

 

 

 

12/31/2015

 

 

 

12/31/2015

 

12/31/2014

 

12/31/2014

 

12/31/2015

 

n/a

 

 

 

 

California

 

CA

 

 

 

 

 

11/1/2014

 

10/1/2014

 

 

2/1/2015

 

2/1/2015

 

n/a

 

 

 

 

CA Compounding

 

CA

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Colorado

 

CO

 

 

10/31/2014

 

 

 

10/31/2014

 

10/31/2014

 

 

10/31/2014

 

10/31/2014

 

10/31/2014

 

 

 

 

Connecticut

 

CT

 

 

8/31/2014

 

 

 

 

8/31/2014

 

6/30/2015

 

6/30/2015

 

8/31/2014

 

8/31/2014

 

8/31/2014

 

 

 

Delaware

 

DE

 

9/30/2014

 

9/30/2014

 

 

 

 

9/30/2014

 

9/30/2014

 

9/30/2014

 

9/30/2014

 

9/30/2014

 

 

 

 

Florida

 

FL

 

 

2/28/2015

 

2/28/2015

 

 

 

2/28/2015

 

 

 

2/28/2015

 

2/28/2015

 

 

1/31/2016

 

Georgia

 

GA

 

 

 

 

 

 

N/A

 

6/30/2015

 

6/30/2015

 

N/A

 

n/a

 

 

 

 

Hawaii

 

HI

 

 

 

 

 

12/31/2015

 

12/31/2015

 

 

 

12/31/2015

 

12/31/2015

 

 

 

 

Idaho

 

ID

 

 

 

 

 

6/30/2014

 

6/30/2014

 

6/30/2015

 

 

6/30/2014

 

6/30/2015

 

 

 

 

Idaho CS

 

ID

 

 

 

 

 

 

 

6/30/2015

 

 

 

 

 

 

 

Illinois

 

IL

 

3/31/2016

 

3/31/2016

 

 

 

 

3/31/2016

 

12/31/2014

 

12/31/2014

 

3/31/2016

 

3/31/2016

 

 

 

 

Illinois CS

 

IL

 

3/31/2016

 

3/31/2014

 

 

 

 

3/31/2016

 

 

 

3/31/2016

 

 

 

 

 

Indiana

 

IN

 

12/31/2015

 

12/31/2015

 

 

 

 

12/31/2015

 

 

9/30/2014

 

12/31/2015

 

12/31/2015

 

 

 

 

Iowa

 

IA

 

12/31/2014

 

12/31/2014

 

 

 

 

12/31/2014

 

12/31/2014

 

12/31/2014

 

12/31/2014

 

12/31/2014

 

 

 

 

 

 

1


 

Summary Tab

 

State License Expiration Dates (Check individual tabs for more information)

 

State

 

State
Abbr.

 

CHI
Pharmacy

 

Flint-
Pharmacy

 

Ft. Lauderdale

 

Grand
Rapids
Pharmacy

 

Ontario CA —
Pharmacy

 

GLDC
Pharmacy

 

GLDC
Wholesale

 

DPS Envoy
Wholesale

 

Envoy
Pharmacy

 

AHF CT

 

AHF MA

 

FLO
Wholesale

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Kansas

 

KS

 

6/30/2014

 

6/30/2014

 

 

 

 

6/30/2015

 

6/30/2014

 

6/30/2015

 

6/30/2015

 

6/30/2015

 

 

 

 

Kentucky

 

KY

 

 

6/30/2015

 

6/30/2015

 

 

 

6/30/2015

 

9/30/2014

 

9/30/2014

 

6/30/2014

 

n/a

 

 

 

 

Louisiana

 

LA

 

 

12/31/2014

 

12/31/2014

 

 

 

12/31/2014

 

12/31/2014

 

12/31/2014

 

12/31/2014

 

n/a

 

 

 

 

Maine

 

ME

 

12/31/2014

 

12/31/2014

 

 

 

 

12/31/2014

 

12/31/2014

 

12/31/2014

 

12/31/2014

 

12/31/2014

 

12/31/2014

 

 

 

Maryland

 

MD

 

 

5/31/2016

 

 

 

 

5/31/2016

 

 

 

5/31/2015

 

5/31/2014

 

5/31/2016

 

5/31/2016

 

 

 

Maryland CS

 

MD

 

 

 

5/31/2016

 

 

 

 

2/29/2016

 

 

 

1/31/2016

 

 

 

 

 

Massachusetts

 

MA

 

 

 

 

 

 

N/A

 

 

 

N/A

 

n/a

 

12/31/2015

 

 

 

Massachusetts CS

 

MA

 

 

 

 

 

 

 

 

 

 

 

12/31/2015

 

 

 

Michigan

 

MI

 

6/30/2015

 

6/30/2016

 

 

6/30/2015

 

 

6/30/2016

 

6/30/2015

 

6/30/2016

 

6/30/2014

 

6/30/2015

 

 

 

 

Michigan CS

 

MI

 

6/30/2015

 

6/30/2016

 

 

6/30/2015

 

 

6/30/2016

 

 

 

6/30/2014

 

6/30/2015

 

 

 

 

Minnesota

 

MN

 

6/30/2014

 

6/30/2014

 

 

 

 

6/30/2015

 

 

5/31/2014

 

6/30/2014

 

6/30/2015

 

 

 

 

Mississippi

 

MS

 

 

12/31/2015

 

12/31/2015

 

 

 

12/31/2015

 

12/31/2015

 

12/31/2015

 

12/31/2015

 

n/a

 

 

 

 

Mississippi CS

 

MS

 

 

 

12/31/2014

 

 

 

12/31/2014

 

 

 

12/31/2014

 

 

 

 

 

Missouri

 

MO

 

10/31/2015

 

10/31/2015

 

 

 

 

10/31/2015

 

10/31/2015

 

10/31/2015

 

10/31/2015

 

10/31/2015

 

 

 

 

Montana

 

MT

 

 

 

 

 

11/30/2014

 

11/30/2014

 

11/30/2014

 

11/30/2014

 

11/30/2014

 

n/a

 

 

 

 

Nebraska

 

NE

 

 

 

 

 

 

11/25/2014

 

7/1/2014

 

7/1/2014

 

11/17/2014

 

 

 

 

 

Nevada

 

NV

 

 

 

 

 

10/31/2014

 

10/31/2014

 

10/31/2014

 

10/31/2014

 

10/31/2014

 

10/31/2014

 

 

 

 

New Hampshire

 

NH

 

3/31/2015

 

3/31/2015

 

 

 

 

3/31/2015

 

6/30/2014

 

6/30/2014

 

3/31/2015

 

3/31/2015

 

 

 

 

New Jersey

 

NJ

 

 

6/30/2014

 

 

 

 

6/30/2015

 

1/31/2015

 

1/31/2015

 

6/30/2014

 

 

 

 

 

New Mexico

 

NM

 

 

 

 

 

12/31/2014

 

12/31/2015

 

12/31/2014

 

12/31/2015

 

12/31/2015

 

 

 

 

 

 


 

Summary Tab

 

State License Expiration Dates (Check individual tabs for more information)

 

 

 

 

 

 

 

 

 

Grand

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

State

 

CHI

 

Flint-

 

 

 

Rapids

 

Ontario CA –

 

GLDC

 

GLDC

 

DPS Envoy

 

Envoy

 

 

 

 

 

FLO

 

State

 

Abbr.

 

Pharmacy

 

Pharmacy

 

Ft. Lauderdale

 

Pharmacy

 

Pharmacy

 

Pharmacy

 

Wholesale

 

Wholesale

 

Pharmacy

 

AHF CT

 

AHF MA

 

Wholesale

 

New Mexico CS

 

NM

 

 

 

 

 

6/30/2014

 

6/30/2014

 

 

 

 

 

 

 

 

New York

 

NY

 

12/31/2016

 

9/30/2016

 

 

 

 

4/30/2017

 

12/31/2014

 

10/31/2014

 

10/31/2014

 

3/31/2015

 

 

 

 

North Carolina

 

NC

 

 

 

12/31/2014

 

 

 

12/31/2014

 

12/31/2014

 

12/31/2014

 

12/31/2014

 

12/31/2014

 

 

 

 

North Dakota

 

ND

 

6/30/2015

 

6/30/2014

 

 

 

 

6/30/2014

 

 

6/30/2015

 

6/30/2015

 

6/30/2014

 

 

 

 

Ohio

 

OH

 

 

12/31/2014

 

 

 

 

12/31/2014

 

6/30/2015

 

6/30/2014

 

12/31/2014

 

12/31/2014

 

 

 

 

Ohio CS

 

OH

 

 

 

 

 

 

 

6/30/2015

 

 

 

 

 

 

 

Oklahoma

 

OK

 

6/30/2014

 

1/31/2015

 

 

 

 

1/31/2015

 

2/28/2015

 

4/30/2015

 

9/30/2014

 

1/31/2015

 

 

 

 

Oregon

 

OR

 

 

3/31/2015

 

 

 

3/31/2015

 

3/31/2015

 

 

9/30/2014

 

3/31/2015

 

3/31/2015

 

3/31/2015

 

 

 

Pennsylvania

 

PA

 

 

 

 

 

 

 

12/31/2014

 

12/31/2014

 

N/A

 

n/a

 

 

 

 

Rhode Island

 

RI

 

9/30/2014

 

9/30/2014

 

 

 

 

9/30/2014

 

9/30/2014

 

9/30/2014

 

9/30/2014

 

9/30/2014

 

9/30/2014

 

 

 

Rhone Island

 

RI

 

 

9/30/2014

 

 

 

 

9/30/2014

 

 

 

9/30/2014

 

1/0/1900

 

 

 

 

South Carolina

 

SC

 

 

6/30/2015

 

 

 

 

6/30/2015

 

6/30/2015

 

6/30/2015

 

6/30/2014

 

6/30/2015

 

 

 

 

South Dakota

 

SD

 

6/30/2014

 

6/30/2015

 

 

 

 

6/30/2015

 

12/31/2014

 

12/31/2014

 

6/30/2015

 

6/30/2015

 

 

 

 

Tennessee

 

TN

 

 

3/31/2015

 

2/28/2014

 

 

 

11/30/2014

 

1/31/2015

 

4/30/2016

 

9/30/2015

 

n/a

 

 

 

 

Texas

 

TX

 

3/31/2015

 

2/28/2015

 

1/0/1900

 

 

 

3/31/2016

 

10/1/2015

 

9/5/2015

 

4/30/2016

 

4/30/2016

 

 

 

 

Utah

 

UT

 

 

 

 

 

9/30/2015

 

9/30/2015

 

 

 

9/30/2015

 

9/30/2015

 

 

 

 

Utah CS

 

UT

 

 

 

 

 

9/30/2015

 

9/30/2015

 

 

 

9/30/2015

 

 

 

 

 

Vermont

 

VT

 

7/31/2015

 

7/31/2015

 

 

 

 

7/31/2015

 

7/31/2015

 

7/31/2015

 

7/31/2015

 

7/31/2017

 

 

 

 

Virginia

 

VA

 

 

4/30/2015

 

4/30/2015

 

 

 

4/30/2015

 

2/28/2015

 

 

 

4/30/2015

 

4/30/2015

 

 

 

 

Washington

 

WA

 

 

5/31/2015

 

 

 

5/31/2014

 

5/31/2015

 

9/30/2014

 

9/30/2014

 

5/31/2014

 

5/31/2015

 

 

 

 

 


 

Summary Tab

 

State License Expiration Dates (Check individual tabs for more information)

 

State

 

State
Abbr.

 

CHI
Pharmacy

 

Flint-
Pharmacy

 

Ft. Lauderdale

 

Grand
Rapids
Pharmacy

 

Ontario CA —
Pharmacy

 

GLDC
Pharmacy

 

GLDC
Wholesale

 

DPS Envoy
Wholesale

 

Envoy
Pharmacy

 

AHF CT

 

AHF MA

 

FLO
Wholesale

 

Washington DC

 

D.C.

 

 

 

 

 

 

5/31/2015

 

6/30/2014

 

10/31/2014

 

5/31/2015

 

3/31/2015

 

 

 

 

West Virginia

 

WV

 

 

6/30/2014

 

6/30/2014

 

 

 

6/30/2014

 

6/30/2014

 

6/30/2014

 

6/30/2014

 

6/30/2014

 

 

 

 

West Virginia CS

 

WV

 

 

 

 

 

 

 

 

 

6/30/2014

 

 

 

 

 

Wisconsin

 

WI

 

5/31/2016

 

5/31/2016

 

 

 

 

5/31/2016

 

5/31/2016

 

5/31/2016

 

5/31/2016

 

5/31/2016

 

 

 

 

Wyoming

 

WY

 

 

6/30/2015

 

 

 

6/30/2014

 

6/30/2014

 

1/0/1900

 

6/30/2015

 

6/30/2014

 

6/30/2015

 

 

 

 

 


 

SCHEDULE 4.15

TO

AMENDED AND RESTATED CREDIT AGREEMENT

 

POST CLOSING OBLIGATIONS

 

Delivery of following items:

 

·                   Joinder to Guaranty and Security Agreement and Credit Agreement

·                   Pledge Amendment for MedPro Shares

·                   Assignment of Representations, Warranties, Covenants, Indemnities

·                   UCC termination for following:

 

MedPro RX, Inc.

 

North Carolina

 

1/9/12

 

20120002765G

 

·                   Opinion of Honigman Miller Schwartz and Cohn LLP with respect to Loan Documents for MedPro Joinder

·                   Officer’s Certificate Regarding MedPro Acquisition Documents

·                   Officer’s Certificate of MedPro

·                   Certificate of a Responsible Officer of the Borrower to the effect that each of the requirements for the MedPro Acquisition to be a Permitted Acquisition has been satisfied

 

Deliver of following items within one Business Day after the MedPro Acquisition Closing Date:

 

·       Stock Certificates and Blank Stock Powers as set forth in Pledge Amendment for MedPro Shares

 



 

SCHEDULE 5.1

TO

AMENDED AND RESTATED CREDIT AGREEMENT

 

LIENS

 

None.

 



 

SCHEDULE 5.4

TO

AMENDED AND RESTATED CREDIT AGREEMENT

 

INVESTMENTS

 

Diplomat Pharmacy, Inc. directly owns 25% of the issued and outstanding equity interests of Ageology LLC (formerly WorkSmartMC LLC).

 

All of the issued and outstanding equity interests of each of the following subsidiaries are 100% owned directly by Diplomat Pharmacy, Inc.:

 

ENVOY HEALTH MANAGEMENT, LLC

NAVIGATOR HEALTH SERVICES, LLC

DIPLOMAT HEALTH SERVICES, LLC

DIPLOMAT SPECIALTY PHARMACY OF FLINT, LLC

DIPLOMAT SPECIALTY PHARMACY OF GRAND RAPIDS, LLC

DIPLOMAT SPECIALTY PHARMACY OF CHICAGO, LLC

DIPLOMAT SPECIALTY PHARMACY OF FT. LAUDERDALE, LLC

DIPLOMAT SPECIALTY PHARMACY OF SOUTHERN CALIFORNIA, LLC

DIPLOMAT SPECIALTY PHARMACY GREAT LAKES DISTRIBUTION CENTER, LLC

DSP FLINT REAL ESTATE, LLC

DSP-BUILDING C, LLC

DIPLOMAT CORPORATE PROPERTIES, LLC

DIPLOMAT HOLDING, LLC

DIPLOMAT INFUSION SERVICES, LLC

DIPLOMAT HEALTH MANAGEMENT, LLC

AMERICAN HOMECARE FEDERATION, INC.

AMBASSADOR COMPOUNDING, LLC

 



 

SCHEDULE 5.5

TO

AMENDED AND RESTATED CREDIT AGREEMENT

 

INDEBTEDNESS

 

None.

 



 

SCHEDULE 5.6

TO

AMENDED AND RESTATED CREDIT AGREEMENT

 

TRANSACTIONS WITH AFFILIATES

 

None

 



 

SCHEDULE 5.9

TO

AMENDED AND RESTATED CREDIT AGREEMENT

 

CONTINGENT OBLIGATIONS

 

None.

 



 

SCHEDULE 11.1B

TO

AMENDED AND RESTATED CREDIT AGREEMENT

 

SUBORDINATED INDEBTEDNESS

 

1.               Non-Negotiable Promissory Note by Diplomat Pharmacy, Inc. in favor of Steven Chaffee, dated February 1, 2012, in an aggregate principal amount of $18,716,963, pursuant to the Stock Redemption Agreement dated February 1, 2012, between Steven Chaffee and Diplomat Pharmacy, Inc.

 

2.               Promissory Note #2 by Diplomat Pharmacy, Inc. in favor of Deborah L. Ward, dated June 7, 2012, in an aggregate principal amount of $480,000.

 

3.               Non-Negotiable Promissory Note by Diplomat Pharmacy, Inc. (the “ Rowe Note ”) in favor of Jeffrey Rowe, dated September 18, 2012 in an aggregate principal amount of $8,061,966, pursuant to the Stock Redemption Agreement dated September 18, 2012, between Jeffrey Rowe and Diplomat Pharmacy, Inc.

 

4.               Non-Negotiable Promissory Note by Diplomat Pharmacy, Inc. in favor of Stephen M. Lund (the “ Lund Note ”) dated October 1, 2012 in an aggregate amount of $1,423,013.

 


 

EXHIBIT 1.1(c)
TO
CREDIT AGREEMENT

 

FORM OF L/C REQUEST

[NAME OF L/C ISSUER], as L/C Issuer
under the Credit Agreement referred to below

 

                      , 20    

 

Re:                              Diplomat Pharmacy, Inc. (the “Borrower”)

 

Reference is made to the Amended and Restated Credit Agreement, dated as of June      , 2014 (as the same may be amended, restated, supplemented or otherwise modified from time to time, the “ Credit Agreement ”), among the Borrower, each other “Credit Party” that is a party thereto, the Lenders, L/C Issuers party thereto and General Electric Capital Corporation, as administrative agent for the Lenders.  Capitalized terms used herein but not otherwise defined herein shall have the respective meanings ascribed to such terms in the Credit Agreement.

 

The Borrower hereby gives you notice, irrevocably, pursuant to Section 1.1(c)  of the Credit Agreement, of its request for your Issuance of a Letter of Credit, in the form attached hereto, for the benefit of [Name of Beneficiary], in the amount of $            , to be issued on               ,           (the “ Issue Date ”) with an expiration date of                ,         .

 

The undersigned hereby certifies that, except as set forth on Schedule A attached hereto, the following statements are true on the date hereof and will be true on the Issue Date, both before and after giving effect to the Issuance of the Letter of Credit requested above and any Loan to be made or any other Letter of Credit to be Issued on or before the Issue Date:

 

(i)                                      the representations and warranties set forth in Article III of the Credit Agreement and elsewhere in the Loan Documents are true and correct in all material respects (without duplication of any materiality qualifier contained therein), except to the extent such representations and warranties expressly relate to an earlier date, in which case such representations and warranties were true and correct as of such earlier date;

 

(ii)                                   no Default or Event of Default has occurred and is continuing; and

 

(iii)                                the aggregate outstanding amount of Revolving Loans does not exceed the Maximum Revolving Loan Balance.

[ Signature page follows ]

 



 

 

DIPLOMAT PHARMACY, INC., as the Borrower

 

 

 

 

 

By:

 

 

 

Name:

 

 

Title:

 

[SIGNATURE PAGE TO L/C REQUEST]

 



 

EXHIBIT 1.1(d)

to

Credit Agreement

 

FORM OF SWINGLINE REQUEST

 

GENERAL ELECTRIC CAPITAL CORPORATION
as Agent under the Credit Agreement referred to below

 

                      ,        

 

Re:                              Diplomat Pharmacy, Inc.(the “Borrower”)

 

Reference is made to the Amended and Restated Credit Agreement, dated as of June      , 2014 (as the same may be amended, restated, supplemented or otherwise modified from time to time, the “ Credit Agreement ”), among the Borrower, each other “Credit Party” that is a party thereto, the Lenders, L/C Issuers party thereto and General Electric Capital Corporation, as administrative agent for the Lenders.  Capitalized terms used herein but not otherwise defined herein shall have the respective meanings ascribed to such terms in the Credit Agreement.

 

The Borrower hereby gives you irrevocable notice pursuant to Section 1.1(d)  of the Credit Agreement that it requests Swing Loans under the Credit Agreement (the “ Proposed Advance ”) and, in connection therewith, sets for the following information:

 

A.                                     The date of the Proposed Advance is                  ,           (the “ Funding Date ”).

 

B.                                     The aggregate principal amount of Proposed Advance is $               .

 

The undersigned hereby certifies that, except as set forth on Schedule A attached hereto, the following statements are true on the date hereof both before and after giving effect to the Proposed Advance and any other Loan to be made or Letter of Credit to be issued on or before the Funding Date:

 

(i)                                      the representations and warranties set forth in Article III of the Credit Agreement and elsewhere in the Loan Documents are true and correct in all material respects (without duplication of any materiality qualifier contained therein) with the same effect as though made on and as of such Funding Date, except to the extent such representations and warranties expressly relate to an earlier date, in which case such representations and warranties were true and correct in all material respects (without duplication of any materiality qualifier contained therein) as of such earlier date;

 



 

(ii)                                   the aggregate principal amount of all Revolving Loans does not exceed the Maximum Revolving Loan Balance; and

 

(iii)                                no Default or Event of Default is continuing.

 

 

Sincerely,

 

 

 

DIPLOMAT PHARMACY, INC., a Michigan

 

corporation

 

 

 

 

 

By:

 

 

Name:

 

 

Title:

 

 

[SIGNATURE PAGE TO SWINGLINE REQUEST DATED                ,      ]

 



 

EXHIBIT 1.6
TO
CREDIT AGREEMENT

 

FORM OF NOTICE OF CONVERSION/CONTINUATION

 

GENERAL ELECTRIC CAPITAL CORPORATION
as Agent under the Credit Agreement referred to below

 

                       ,         

 

Re:                              Diplomat Pharmacy, Inc. (the “Borrower”)

 

Reference is made to the Amended and Restated Credit Agreement, dated as of June       , 2014 (as the same may be amended, restated, supplemented or otherwise modified from time to time, the “ Credit Agreement ”), among the Borrower, each other “Credit Party” that is a party thereto, the Lenders, L/C Issuers party thereto and General Electric Capital Corporation, as administrative agent for the Lenders.  Capitalized terms used herein but not otherwise defined herein shall have the respective meanings ascribed to such terms in the Credit Agreement.

 

The Borrower, hereby gives you irrevocable notice, pursuant to Section 1.6 of the Credit Agreement of its request for the following (the “ Proposed Conversion/Continuation ”):

 

(i)                                      a continuation, on              ,          , as LIBOR Rate Loans having an Interest Period of            months of Revolving Loans in an aggregate outstanding principal amount of $                  having an Interest Period ending on the proposed date for such continuation;

 

(ii)                                   a conversion, on                 ,           , to LIBOR Rate Loans having an Interest Period of           months of Revolving Loans in an aggregate outstanding principal amount of $             ; and(1)

 

(iii)                                a conversion, on               ,             , to Base Rate Loans, of Revolving Loans in an aggregate outstanding principal amount of $                   .

 

The undersigned hereby certifies that, except as set forth on Schedule A attached hereto, the following statements are true on the date hereof both before and after giving effect to the Proposed Conversion/Continuation:

 

(i)                                      the representations and warranties set forth in Article III of the Credit Agreement and elsewhere in the Loan Documents are true and correct in all material respects (without duplication of any materiality qualifier contained therein) with the same effect as though made on and as of such Funding Date, except to the extent such representations and warranties expressly relate to an earlier date, in which case such representations and warranties were true and correct in all material respects (without duplication of any materiality qualifier contained therein) as of such earlier date;

 


(1)    Cannot be used prior to the Syndication Completion Date.

 

1



 

(ii)                                   the aggregate principal amount of all Revolving Loans does not exceed the Maximum Revolving Loan Balance; and

 

(iii)                                no Default or Event of Default is continuing.

 

 

DIPLOMAT PHARMACY, INC., a Michigan

 

corporation

 

 

 

 

 

By:

 

 

Name:

 

 

Title:

 

 

[SIGNATURE PAGE TO NOTICE OF CONVERSION/CONTINUATION DATED                 ,        ]

 



 

EXHIBIT 2.1

CLOSING CHECKLIST

 



 

EXHIBIT 4.2(b)

 

COMPLIANCE CERTIFICATE

 

DIPLOMAT PHARMACY, INC.

 

Date: [               , 201   ]

 

This Compliance Certificate (this “Certificate”) is given by Diplomat Pharmacy, Inc., a Michigan corporation (the “ Borrower ”), pursuant to Section 4.2(b) of that certain Amended and Restated Credit Agreement, dated as of June     , 2014 (as the same may be amended, restated, supplemented or otherwise modified from time to time, the “ Credit Agreement ”), among the Borrower, each other “Credit Party” that is a party thereto, the Lenders, L/C Issuers party thereto and General Electric Capital Corporation, as administrative agent for the Lenders.  Capitalized terms used herein but not otherwise defined herein shall have the respective meanings ascribed to such terms in the Credit Agreement.

 

The officer executing this Certificate is a Responsible Officer of the Borrower and as such is duly authorized to execute and deliver this Certificate on behalf of the Borrower.  By executing this Certificate, such officer hereby certifies to Agent, Lenders and L/C Issuer, on behalf of the Borrower, that:

 

(a)                                  the financial statements delivered with this Certificate in accordance with Section 4.1(a) and/or 4.1(b) of the Credit Agreement fairly present, in all material respects, in accordance with GAAP the financial position and the results of operations of the Borrower and its Subsidiaries as of the dates of and for the periods covered by such financial statements (subject, in the case of interim financial statements, to normal year-end adjustments and the absence of footnote disclosure);

 

(b)                                  to the best of such officer’s knowledge, each Credit Party and each of their Subsidiaries, during the period covered by such financial statements, has observed and performed all of their respective covenants and other agreements in the Credit Agreement and the other Loan Documents to be observed, performed or satisfied by them, and such officer had not obtained knowledge of any Default or Event of Default [except as specified on the written attachment hereto];

 

(c)                                   Exhibit A hereto is a correct calculation of the financial covenant contained in Article VI of the Credit Agreement;

 

(d)                                  If the financial covenant set forth in Article VI was currently being tested, the Borrower and each of its Subsidiaries [are/are not ] in compliance with such financial covenant.(2)

 

Exhibit B hereto is a correct calculation of Excess Cash Flow for the year ended [December 31, 201   ] ; and

 


(2) Whether such financial covenant is currently being tested is based on average daily Availability as described in Section 6.1 of the Credit Agreement.

 



 

(e)                                   since the Closing Date and except as disclosed in prior Compliance Certificates delivered to Agent, no Credit Party and no Subsidiary of any Credit Party has:

 

(i)                                      changed its legal name, identity, jurisdiction of incorporation, organization or formation or organizational structure or formed or acquired any Subsidiary except as follows:                                                                         ;

 

(ii)                                   acquired the assets of, or merged or consolidated with or into, any Person, except as follows:                                                                                                   ; or

 

(iii)                                changed its address or otherwise relocated, acquired fee simple title to any real property or entered into any real property leases, except as follows:                                                                                                        .

 

[ Signature Page Follows ]

 



 

IN WITNESS WHEREOF, the Borrower has caused this Certificate to be executed by one of its Responsible Officers this            day of                               , 201     .

 

 

 

DIPLOMAT PHARMACY, INC.

 

 

 

By:

 

 

 

 

 

Name:

 

 

 

 

 

Title:

 

 

Note:  Unless otherwise specified, all financial covenants are calculated for the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP and all calculations are without duplication.

 


 

EXHIBIT A TO EXHIBIT 4.2(b)

 

COMPLIANCE CERTIFICATE

 

Covenant 6.1 Fixed Charge Coverage

 

Fixed Charge Coverage is defined as follows:

 

 

 

 

 

 

 

Net Cash Flow:

 

 

 

 

 

 

 

Cash Flow (defined below)

 

$

 

 

 

 

 

 

Minus:      Restricted Payments paid in cash during such period (excluding dividends from Subsidiaries of the Borrower to the Borrower or other Subsidiaries of the Borrower, Special Tax Distributions and other Tax Distributions (as defined in the Existing Credit Agreement), the initial Series A Preferred Proceeds Distribution (as defined in the Existing Credit Agreement), the Janus Series A Preferred Proceeds Distribution and Restricted Payments which constitute Fixed Charges (defined below))

 

$

 

 

 

 

 

 

Net Cash Flow

 

$

 

 

 

 

 

 

Fixed Charges:

 

 

 

 

 

 

 

Net Interest Expense (defined below)

 

$

 

 

 

 

 

 

Plus:                  Scheduled principal payments of Indebtedness during such period
(including on Subordinated Indebtedness)

 

$

 

 

 

 

 

 

Fixed Charges

 

$               

 

 

 

 

 

Fixed Charge Coverage (Net Cash Flow divided by Fixed Charges)

 

 

 

 

 

 

 

Required Fixed Charge Coverage

 

1.10x

 

 

 

 

 

In Compliance

 

[Yes/No]

 

 



 

Calculation of Net Interest Expense

 

Net Interest Expense is defined as follows:

 

 

 

 

 

 

 

Gross interest expense for such period paid or required to be paid in cash (including all commissions, discounts, fees and other charges in connection with letters of credit and similar instruments and net amounts paid or payable and/or received or receivable under permitted Rate Contracts in respect of interest rates) for the Borrower and its Subsidiaries on a consolidated basis, including on Subordinated Indebtedness

 

$

 

 

 

 

 

 

 

Less:                     Interest income received in cash for such period

 

$

 

 

 

 

 

 

 

Net Interest Expense (used in calculation of Fixed Charge Coverage and Excess Cash Flow)

 

$               

 

 



 

Calculation of EBITDA

 

EBITDA is defined as follows:

 

 

 

 

 

 

 

Net income (or loss) for the applicable period of measurement of the Borrower and its Subsidiaries on a consolidated basis determined in accordance with GAAP, but excluding: (a) the income (or loss) of any joint venture or other Person which is not a Subsidiary of the Borrower, except to the extent of the amount of dividends or other distributions actually paid to the Borrower or any of its Subsidiaries in cash by such Person during such period (b) the undistributed earnings of any Subsidiary of the Borrower if the payment of dividends or similar distributions by that Subsidiary is not permitted by operation of the terms of its charter or of any agreement or Requirement of Law applicable to that Subsidiary; (c) the income (or loss) of any Person accrued prior to the date it becomes a Subsidiary of the Borrower or is merged into or consolidated with the Borrower or any of its Subsidiaries or that Person’s assets are acquired by the Borrower or any of its Subsidiaries; (d) any net gain from the collection of life insurance proceeds; (e) any aggregate net gain, and any aggregate net loss of up to $500,000 in any measurement period, from the sale, exchange, transfer or other disposition of Property or assets not in the Ordinary Course of Business of the Borrower and its Subsidiaries, and related tax effects in accordance with GAAP; and (f) any other extraordinary gains or losses of the Borrower or its Subsidiaries, and related tax effects in accordance with GAAP

 

$

 

 

 

 

 

 

 

Plus:                       All amounts deducted in calculating net income (or loss) for depreciation or amortization for such period

 

$

 

 

 

 

 

 

 

Net Interest Expense

 

$

 

 

 

 

 

 

 

All taxes, accrued or payable, on or measured by income to the extent deducted in calculating net income (or loss) for such period

 

$

 

 

 

 

 

 

 

The amount of any non-cash deduction from net income as a result of any grant of Stock or Stock Equivalents to employees

 

$

 

 

 

 

 

 

 

Minus: All tax credits

 

$

 

 

 

 

 

 

 

All non-cash income or gains (including without limitation, income arising from the cancellation of Indebtedness.)

 

$

 

 

 

 

 

 

 

EBITDA

 

$

 

 

 



 

Calculation of Cash Flow

 

Cash Flow is defined as follows:

 

 

 

 

 

 

 

EBITDA (defined above) for the applicable period of measurement:

 

$

 

 

 

 

 

 

Less:                     Unfinanced Capital Expenditures (defined below)

 

$

 

 

 

 

 

 

Special Tax Distributions and other Tax Distributions (as defined in the Existing Credit Agreement) during such period

 

$

 

 

 

 

 

 

Taxes on or measured by income paid or payable in cash during such period

 

$

 

 

 

 

 

 

Investments made under Section 5.4(h) during such period, provided that, if applicable, such amount shall be reduced by an amount equal to the original cost to the Borrower of that portion of the Investment sold by the Borrower pursuant Section 5.2(e);

 

$

 

 

 

 

 

 

Investments made under Section 5.4(d) during such period

 

$

 

 

 

 

 

 

Plus:                  Proceeds received in cash by the Borrower or its Subsidiaries from the sale of tax credits, to the extent constituting an extraordinary gain

 

$

 

 

 

 

 

 

Cash Flow (used in calculation of Excess Cash Flow and Fixed Charge Coverage)

 

$               

 

 

 

 

 

For purposes of calculating Cash Flow, Capital Expenditures and Unfinanced Capital Expenditures are defined as follows:

 

 

 

 

 

 

 

The aggregate of all expenditures and other obligations for the twelve month period ending on the last day of the month covered by such financial statements which should be capitalized under GAAP

 

$

 

 

 

 

 

 

Less:                     Net Proceeds from Dispositions and/or Events of Loss which are included above

 

$

 

 

 

 

 

 

To the extent included above, amounts paid as the purchase price for a Target in a Permitted Acquisition

 

$

 

 

 

 

 

 

Capital Expenditures

 

$               

 

 

 

 

 

Less: Portion of Capital Expenditures financed under Capital Leases or with proceeds of other long term Indebtedness incurred substantially concurrently with such expenditure (Indebtedness, for this purpose, does not include drawings under the Revolving Loan Commitment)

 

$

 

 

 

 

 

 

Unfinanced Capital Expenditures (used in calculation of Cash Flow)

 

$               

 

 



 

EXHIBIT B TO EXHIBIT 4.2(b)

 

COMPLIANCE CERTIFICATE

 

Excess Cash Flow

 

Excess Cash Flow is defined as follows:

 

 

 

 

 

 

 

Cash Flow (per Exhibit A to this Exhibit 4.2(b))

 

$

 

 

 

 

 

 

Less:                     Scheduled principal payments with respect

 

 

 

 

 

 

 

to Indebtedness actually paid in cash (including on Subordinated Indebtedness)

 

$

 

 

 

 

 

Net Interest Expense (defined above) actually paid in cash

 

$

 

 

 

 

 

 

Restricted Payments made in cash (excluding the the Series A Preferred Proceeds Distribution (as defined in the Existing Credit Agreement and the Janus Series A Preferred Proceeds Distribution)

 

$

 

 

 

 

 

 

Increase in Working Capital (defined below)

 

$

 

 

 

 

 

 

Plus:                       Decrease in Working Capital

 

$

 

 

 

 

 

 

Excess Cash Flow

 

$

 

 

 



 

Decrease (increase) in Working Capital, for the purposes of the calculation of Excess Cash Flow, means the following:

 

 

 

Beg. of Period

 

End of Period

 

 

 

 

 

 

 

Current assets:

 

$

 

 

$

 

 

 

 

 

 

 

 

Less (to the extent included in current assets):

 

 

 

 

 

 

 

 

 

 

 

Cash

 

 

 

 

 

 

 

 

 

 

 

Cash Equivalents

 

 

 

 

 

 

 

 

 

 

 

Adjusted current assets

 

$

 

 

$

 

 

 

 

 

 

 

 

Current liabilities:

 

$

 

 

$

 

 

 

 

 

 

 

 

Less (to the extent included in current Liabilities):

 

 

 

 

 

 

 

 

 

 

 

Revolving Loans

 

 

 

 

 

 

 

 

 

 

 

Swing Loans

 

 

 

 

 

 

 

 

 

 

 

Current portion of Indebtedness

 

 

 

 

 

 

 

 

 

 

 

Adjusted current liabilities

 

$

 

 

$

 

 

Working Capital (adjusted current assets minus adjusted current liabilities)

 

$

 

 

$

 

 

 

 

 

 

 

 

Decrease (Increase) in Working Capital (beginning of period minus end of period Working Capital)

 

 

 

$

 

 

 

To the extent the Borrower or any of its Subsidiaries consummates an acquisition during such period, Beginning of Period Working Capital shall be recalculated on a pro forma basis to include Working Capital acquired in such acquisition.

 



 

EXHIBIT 11.1(a)
TO
CREDIT AGREEMENT

 

FORM OF ASSIGNMENT

 

This ASSIGNMENT, dated as of the Effective Date, is entered into between                        (“the Assignor”) and                             (“the Assignee”).

 

The parties hereto hereby agree as follows:

 

Borrower:

 

Diplomat Pharmacy, Inc., a Michigan corporation (the “ Borrower ”)

 

 

 

Agent:

 

General Electric Capital Corporation, as administrative agent for the Lenders and L/C Issuers (in such capacity and together with its successors and permitted assigns, the “ Agent ”)

 

 

 

Credit Agreement:

 

Amended and Restated Credit Agreement, dated as of June       , 2014 among the Borrower, the other Credit Parties party thereto, the Lenders and L/C Issuers party thereto and the Agent (as the same may be amended, restated, supplemented or otherwise modified from time to time, the “ Credit Agreement ”; capitalized terms used herein without definition are used as defined in the Credit Agreement)

 

 

 

[Trade Date:

 

                ,              ](2)

 

 

 

Effective Date:

 

               ,               (3)

 


(2)                             Insert for informational purposes only if needed to determine other arrangements between the assignor and                                             the assignee.

 

(3)                               To be filled out by Agent upon entry in the Register.

 

1



 

Loan/
Commitment 
Assigned(4)

 

Aggregate amount of 
Commitments or 
principal amount of 
Loans for all Lenders(5)

 

Aggregate amount of 
Commitments(5) or 
principal amount of 
Loans Assigned(6)

 

Percentage Assigned(7)

 

 

 

$

 

 

$

 

 

.    

%

 

 

$

 

 

$

 

 

.    

%

 

 

$

 

 

$

 

 

.    

%

 

[THE REMAINDER OF THIS PAGE WAS INTENTIONALLY LEFT BLANK]

 


(4)                             Fill in the appropriate defined term for the type of Loan and/or Commitment under the Credit Agreement that are being assigned under this Assignment.  (e.g., “Revolving Loan Commitment”, etc.)

 

(5)                               In the case of the Revolving Loan Commitment, including Revolving Loans and interests, participations and obligations to participate in Letter of Credit Obligations and Swing Loans.

 

(6)                               Amount to be adjusted by the counterparties to take into account any payments or prepayments made between the Trade Date and the Effective Date.  The aggregate amounts are inserted for informational purposes only to help in calculating the percentages assigned which, themselves, are for informational purposes only.

 

(7)                                 Set forth, to at least 9 decimals, the Assigned Interest as a percentage of the aggregate Commitment or Loans in the Facility.  This percentage is set forth for informational purposes only and is not intended to be binding.  The assignments are based on the amounts assigned not on the percentages listed in this column.

 



 

Section 1 .                                            Assignment .  Assignor hereby sells and assigns to Assignee, and  Assignee hereby purchases and assumes from Assignor, Assignor’s rights and obligations in its capacity as Lender under the Credit Agreement (including Liabilities owing to or by  Assignor thereunder) and the other Loan Documents, in each case to the extent related to the amounts identified above (the “ Assigned Interest ”).

 

Section 2 .                                            Representations, Warranties and Covenants of Assignors .  Assignor (a) represents and warrants to Assignee and the Agent that (i) it has full power and authority, and has taken all actions necessary for it, to execute and deliver this Assignment and to consummate the transactions contemplated hereby and (ii) it is the legal and beneficial owner of its Assigned Interest and that such Assigned Interest is free and clear of any Lien and other adverse claims and (iii) by executing, signing and delivering this assignment via ClearPar® or any other electronic settlement system designated by the Agent, the Person signing, executing and delivering this Assignment on behalf of the Assignor is an authorized signatory for the Assignor and is authorized to execute, sign and deliver this Agreement, (b) makes no other representation or warranty and assumes no responsibility, including with respect to the aggregate amount of the Loans and Commitments, the percentage of the Loans and Commitments represented by the amounts assigned, any statements, representations and warranties made in or in connection with any Loan Document or any other document or information furnished pursuant thereto, the execution, legality, validity, enforceability or genuineness of any Loan Document or any document or information provided in connection therewith and the existence, nature or value of any Collateral, (c) assumes no responsibility (and makes no representation or warranty) with respect to the financial condition of any Credit Party or the performance or nonperformance by any Credit Party of any obligation under any Loan Document or any document provided in connection therewith and (d) attaches any Notes held by it evidencing at least in part the Assigned Interest of such Assignor (or, if applicable, an affidavit of loss or similar affidavit therefor) and requests that the Agent exchange such Notes for new Notes in accordance with Section 1.2 of the Credit Agreement.

 

Section 3 .                                            Representations, Warranties and Covenants of Assignees .  Assignee (a) represents and warrants to Assignor and the Agent that (i) it has full power and authority, and has taken all actions necessary for Assignee, to execute and deliver this Assignment and to consummate the transactions contemplated hereby, (ii) it is [not] an Affiliate or an Approved Fund of            , a Lender and (iii) it is sophisticated with respect to decisions to acquire assets of the type represented by the Assigned Interest assigned to it hereunder and either Assignee or the Person exercising discretion in making the decision for such assignment is experienced in acquiring assets of such type, (iv) by executing, signing and delivering this Assignment via ClearPar® or any other electronic settlement system designated by the Agent, the Person signing, executing and delivering this Assignment on behalf of the Assignor is an authorized signatory for the Assignor and is authorized to execute, sign and deliver this Agreement  (b) appoints and authorizes the Agent to take such action as administrative agent on its behalf and to exercise such powers under the Loan Documents as are delegated to the Agent by the terms thereof, together with such powers as are reasonably incidental thereto, (c) shall perform in accordance with their terms all obligations that, by the terms of the Loan Documents, are required to be performed by it as a Lender, (d) confirms it has received such documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into this Assignment and shall continue to make its own credit decisions in taking or not taking any action under any Loan

 



 

Document independently and without reliance upon Agent, any L/C Issuer, any Lender or any other Indemnitee and based on such documents and information as it shall deem appropriate at the time, (e) acknowledges and agrees that, as a Lender, it may receive material non-public information and confidential information concerning the Credit Parties and their Affiliates and their Stock and agrees to use such information in accordance with Section 9.10 of the Credit Agreement, (f) specifies as its applicable lending offices (and addresses for notices) the offices at the addresses set forth beneath its name on the signature pages hereof, (g) shall pay to the Agent an assignment fee in the amount of $3,500 to the extent such fee is required to be paid under Section 9.9 of the Credit Agreement and (h) to the extent required pursuant to Section 10.1(f)  of the Credit Agreement, attaches two completed originals of Forms W-8ECI, W-8BEN, W-8IMY or W-9 and, if applicable, a portfolio interest exemption certificate.

 

Section 4 .                                            Determination of Effective Date; Register .  Following the due execution and delivery of this Assignment by Assignor, Assignee and, to the extent required by Section 9.9 of the Credit Agreement, the Borrower and each L/C Issuer that is a Lender, this Assignment (including its attachments) will be delivered to the Agent for its acceptance and recording in the Register.  The effective date of this Assignment (the “ Effective Date ”) shall be the later of (i) the acceptance of this Assignment by the Agent and (ii) the recording of this Assignment in the Register.  The Agent shall insert the Effective Date when known in the space provided therefor at the beginning of this Assignment.

 

Section 5 .                                            Effect .  As of the Effective Date, (a) Assignee shall be a party to the Credit Agreement and, to the extent provided in this Assignment, have the rights and obligations of a Lender under the Credit Agreement and (b) Assignor shall, to the extent provided in this Assignment, relinquish its rights (except those surviving the termination of the Commitments and payment in full of the Obligations) and be released from its obligations under the Loan Documents other than those obligations relating to events and circumstances occurring prior to the Effective Date.

 

Section 6 .                                            Distribution of Payments .  On and after the Effective Date, the Agent shall make all payments under the Loan Documents in respect of each Assigned Interest (a) in the case of amounts accrued to but excluding the Effective Date, to Assignor and (b) otherwise, to Assignee.

 

Section 7 .                                            Miscellaneous .  (a) The parties hereto, to the extent permitted by law, waive all right to trial by jury in any action, suit, or proceeding arising out of, in connection with or relating to, this Assignment and any other transaction contemplated hereby.  This waiver applies to any action, suit or proceeding whether sounding in tort, contract or otherwise.

 

(b)                                  On and after the Effective Date, this Assignment shall be binding upon, and inure to the benefit of, the Assignor, Assignee, the Agent and their Related Persons and their successors and assigns.

 

(c)                                   This Assignment shall be governed by, and be construed and interpreted in accordance with, the law of the State of New York.

 



 

(d)                                  This Assignment may be executed in any number of counterparts and by different parties in separate counterparts, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute one and the same agreement.

 

(e)                                   Signature pages may be detached from multiple separate counterparts and attached to a single counterpart.  Delivery of an executed signature page of this Assignment by facsimile transmission or Electronic Transmission shall be as effective as delivery of a manually executed counterpart of this Assignment.

 


 

IN WITNESS WHEREOF, the parties hereto have caused this Assignment to be executed by their respective officers thereunto duly authorized, as of the date first above written.

 

 

[NAME OF ASSIGNOR]

 

as Assignor

 

 

 

 

 

By:

 

 

 

Name:

 

 

Title:

 

 

 

[NAME OF ASSIGNEE]

 

as Assignee

 

 

 

 

 

By:

 

 

 

Name:

 

 

Title:

 

 

 

 

 

Lending Office for LIBOR Rate Loans:

 

 

 

[Insert Address (including contact name, fax number and e-mail address)]

 

 

 

 

 

Lending Office (and address for notices)

 

for any other purpose:

 

 

 

 

 

[Insert Address (including contact name, fax number and e-mail address)]

 



 

ACCEPTED and AGREED

 

this      day of                         :

 

 

 

GENERAL ELECTRIC CAPITAL CORPORATION

 

as Agent

 

 

 

By:

 

 

 

Name:

 

 

 

Title:

 

 

 

 

 

 

DIPLOMAT PHARMACY, INC.,

 

a Michigan corporation

 

 

 

By:

 

 

Name:

 

 

Title:

 

 

 

 

 

 

[NAME OF L/C ISSUER](7)

 

 

 

By:

 

 

 

Name:

 

 

 

Title:

 

 

 

[SIGNATURE PAGE FOR ASSIGNMENT FOR DIPLOMAT PHARMACY’S CREDIT AGREEMENT]

 



 

EXHIBIT 11.1(b)
to
CREDIT AGREEMENT

 

FORM OF CONSOLIDATED BORROWING BASE CERTIFICATE

 

This Certificate is given by Diplomat Pharmacy, Inc. (the “ Borrower ”), pursuant to subsection 4.2(d)  of that certain Amended and Restated Credit Agreement, dated as of June    , 2014 among the Borrower, the other Credit Parties party thereto, the Lenders from time to time party thereto and General Electric Capital Corporation, as agent for the Lenders and other Secured Parties (as such agreement may have been amended, restated, supplemented or otherwise modified from time to time the “ Credit Agreement ”).  Capitalized terms used herein without definition shall have the meanings set forth in the Credit Agreement.

 

The undersigned is duly authorized to execute and deliver this Borrowing Base Certificate on behalf of the Borrower.  By executing this Certificate such officer of the Borrower hereby certifies to Agent and Lenders on behalf of the Borrower and without personal liability that:

 

(a)                                  Attached hereto as Schedule 1 is a calculation of the Borrowing Base for the period ending on                                  (the “Reporting Date”);

 

(b)                                  Based on such schedule, the Borrowing Base as of the Reporting Date is:

 

$ [            ]

 

(c)                                   The effective date of this Borrowing Base Certificate will be the date this Certificate is received by Agent.

 

1



 

IN WITNESS WHEREOF, the Borrower has caused this Borrowing Base Certificate to be executed by its [         ] this [       day of          , 20      ] .

 

 

DIPLOMAT PHARMACY, INC., a

 

Michigan corporation

 

 

 

 

 

By:

 

 

Name:

 

 

Title:

 

 

[SIGNATURE PAGE TO BORROWING BASE CERTIFICATE DATED                   ,         ]

 



 

EXHIBIT 11.1(c)
TO
CREDIT AGREEMENT

 

FORM OF NOTICE OF BORROWING

 

GENERAL ELECTRIC CAPITAL CORPORATION

as Agent under the Credit Agreement referred to below

 

                           ,         

 

Re:           Diplomat Pharmacy, Inc. (the “Borrower”)

 

Reference is made to the Amended and Restated Credit Agreement, dated as of June      , 2014 (as the same may be amended, restated, supplemented or otherwise modified from time to time, the “ Credit Agreement ”), among the Borrower, the other Credit Parties, the Lenders and L/C Issuers party thereto and General Electric Capital Corporation, as administrative agent for such Lenders and L/C Issuers.  Capitalized terms used herein without definition are used as defined in the Credit Agreement.

 

The Borrower hereby gives you irrevocable notice, pursuant to Section 1.5 of the Credit Agreement of its request of a Borrowing (the “ Proposed Borrowing ”) under the Credit Agreement and, in that connection, sets forth the following information:

 

A.             The date of the Proposed Borrowing is               ,         (the “ Funding Date ”).

 

B.             The aggregate principal amount of requested Revolving Loans is $             , of which $              consists of Base Rate Loans and $              consists of LIBOR Rate Loans having an initial Interest Period of             months.

 

The undersigned hereby certifies that, except as set forth on Schedule A attached hereto, the following statements are true on the date hereof and will be true on the Funding Date, both before and after giving effect to the Proposed Borrowing and any other Loan to be made or Letter of Credit to be Issued on or before the Funding Date:

 

(i)             the representations and warranties set forth in Article III of the Credit Agreement and elsewhere in the Loan Documents are true and correct in all material respects (without duplication of any materiality qualifier contained therein), except to the extent such representations and warranties expressly relate to an earlier date, in which case such representations and warranties were true and correct as of such earlier date (without duplication of any materiality qualifier contained therein);

 

(ii)            no Default or Event of Default has occurred and is continuing; and

 



 

(iii)           the aggregate outstanding amount of Revolving Loans does not exceed the Maximum Revolving Loan Balance.

 

 

DIPLOMAT PHARMACY, INC.,

 

a Michigan corporation

 

 

 

 

 

By:

 

 

Name:

 

 

Title:

 

 

[SIGNATURE PAGE TO BORROWING BASE CERTIFICATE DATED                 ,         ]

 



 

EXHIBIT 11.1(d)
TO
CREDIT AGREEMENT

 

FORM OF REVOLVING LOAN NOTE

 

 

New York, New York

Lender: [NAME OF LENDER]

 

Principal Amount:  $           

               , 20      

 

FOR VALUE RECEIVED, the undersigned, Diplomat Pharmacy, Inc., a Michigan corporation (the “ Borrower ”), hereby promises to pay to the Lender set forth above (the “ Lender ”) the Principal Amount set forth above, or, if less, the aggregate unpaid principal amount of all Revolving Loans (as defined in the Credit Agreement referred to below) of the Lender to the Borrower, payable at such times and in such amounts as are specified in the Credit Agreement.

 

The Borrower hereby promises to pay interest on the unpaid principal amount of the Revolving Loans from the date made until such principal amount is paid in full, payable at such times and at such interest rates as are specified in the Credit Agreement.  Demand, diligence, presentment, protest and notice of non-payment and protest are hereby waived by the Borrower.

 

Both principal and interest are payable in Dollars to General Electric Capital Corporation, as Agent, at the address set forth in the Credit Agreement, in immediately available funds.

 

This Note is one of the Notes referred to in, and is entitled to the benefits of, the Amended and Restated Credit Agreement, dated as of June    , 2014 (as the same may be amended, restated, supplemented or otherwise modified from time to time, the “ Credit Agreement ”), among the Borrower, the other Credit Parties party thereto, the Lenders and the L/C Issuers party thereto and General Electric Capital Corporation, as administrative agent for the Lenders and L/C Issuers.  Capitalized terms used herein without definition are used as defined in the Credit Agreement.

 

The Credit Agreement, among other things, (a) provides for the making of Revolving Loans by the Lender to the Borrower in an aggregate amount not to exceed at any time outstanding the Principal Amount set forth above, the indebtedness of the Borrower resulting from such Revolving Loans being evidenced by this Note and (b) contains provisions for acceleration of the maturity of the unpaid principal amount of this Note upon the happening of certain stated events and also for prepayments on account of the principal hereof prior to the maturity hereof upon the terms and conditions specified therein.

 

This Note is a Loan Document, is entitled to the benefits of the Loan Documents and is subject to certain provisions of the Credit Agreement, including Sections 9.18(b ) (Submission to Jurisdiction),  9.19 (Waiver of Jury Trial), 9.23 (Joint and Several) and 11.2 (Other Interpretive Provisions) thereof.

 

1



 

This Note is a registered obligation, transferable only upon notation in the Register, and no assignment hereof shall be effective until recorded therein.

 

This Note shall be governed by, and construed and interpreted in accordance with, the law of the State of New York.

 

[ Remainder of page intentionally left blank;

signature page follows ]

 

2



 

IN WITNESS WHEREOF, the Borrower has caused this Note to be executed and delivered by its duly authorized officer as of the day and year and at the place set forth above.

 

 

DIPLOMAT PHARMACY, INC.,

 

a Michigan corporation

 

 

 

 

 

By:

 

 

Name:

 

 

Title:

 

 

[$             ] REVOLVING LOAN NOTE OF DIPLOMAT PHARMACY, INC. FOR THE BENEFIT OF [NAME OF LENDER]

 



 

EXHIBIT 11.1(e)
TO
CREDIT AGREEMENT

 

FORM OF SWINGLINE NOTE

 

 

New York, New York

Swingline Lender: General Electric Capital Corporation

 

Principal Amount: $5,000,000

                   , 20     

 

FOR VALUE RECEIVED, the undersigned, Diplomat Pharmacy, Inc., a Michigan Corporation (the “ Borrower ”), hereby promises to pay to the Swingline Lender set forth above (the “ Swingline Lender ”) the Principal Amount set forth above, or, if less, the aggregate unpaid principal amount of all Swing Loans (as defined in the Credit Agreement referred to below) of the Swingline Lender to the Borrower, payable at such times and in such amounts as are specified in the Credit Agreement.

 

The Borrower hereby promises to pay interest on the unpaid principal amount of the Swing Loans from the date made until such principal amount is paid in full, payable at such times and at such interest rates as are specified in the Credit Agreement.  Demand, diligence, presentment, protest and notice of non-payment and protest are hereby waived by the Borrower.

 

Both principal and interest are payable in Dollars to General Electric Capital Corporation, as Agent, at the address set forth in the Credit Agreement, in immediately available funds.

 

This Note is one of the Notes referred to in, and is entitled to the benefits of, the Amended and Restated Credit Agreement, dated as of June     , 2014 (as the same may be amended, restated, supplemented or otherwise modified from time to time, the “ Credit Agreement ”), among the Borrower, the other Credit Parties party thereto, the Lenders, the L/C Issuer, the Swingline Lender and General Electric Capital Corporation, as administrative agent for the Lenders and L/C Issuer.  Capitalized terms used herein without definition are used as defined in the Credit Agreement.

 

The Credit Agreement, among other things, (a) provides for the making of Swing Loans by the Swingline Lender to the Borrower in an aggregate amount not to exceed at any time outstanding the Principal Amount set forth above, the indebtedness of the Borrower resulting from such Swing Loans being evidenced by this Note and (b) contains provisions for acceleration of the maturity of the unpaid principal amount of this Note upon the happening of certain stated events and also for prepayments on account of the principal hereof prior to the maturity hereof upon the terms and conditions specified therein.

 

This Note is a Loan Document, is entitled to the benefits of the Loan Documents and is subject to certain provisions of the Credit Agreement, including Sections 9.18(b ) (Submission to Jurisdiction),  9.19 (Waiver of Jury Trial), 9.23 (Joint and Several) and 11.2 (Other Interpretive Provisions) thereof.

 



 

This Note is a registered obligation, transferable only upon notation in the Register, and no assignment hereof shall be effective until recorded therein.

 

This Note shall be governed by, and construed and interpreted in accordance with, the law of the State of New York.

 

[ Remainder of page intentionally left blank;

signature page follows ]

 

2



 

IN WITNESS WHEREOF, the Borrower has caused this Note to be executed and delivered by its duly authorized officer as of the day and year and at the place set forth above.

 

 

DIPLOMAT PHARMACY, INC., a Michigan corporation

 

 

 

 

 

By:

 

 

Name:

 

 

Title:

 

 

[$5,000,000 SWINGLINE NOTE OF DIPLOMAT PHARMACY, INC. FOR THE BENEFIT OF GE CAPITAL]

 




Exhibit 10.2

 

EXECUTION VERSION

 

AMENDED AND RESTATED
GUARANTY AND SECURITY AGREEMENT

 

Dated as of June 26, 2014

 

by

 

DIPLOMAT PHARMACY, INC.,
as the Borrower,

 

and

 

Each Other Grantor
From Time to Time Party Hereto

 

in favor of

 

GENERAL ELECTRIC CAPITAL CORPORATION,
as Agent

 



 

TABLE OF CONTENTS

 

 

 

Page

 

 

 

ARTICLE I

DEFINED TERMS

2

 

 

 

1.1

Definitions

2

 

1.2

Certain Other Terms

4

 

 

ARTICLE II

GUARANTY

6

 

 

 

2.1

Guaranty

6

 

2.2

Limitation of Guaranty

6

 

2.3

Contribution

6

 

2.4

Authorization; Other Agreements

6

 

2.5

Guaranty Absolute and Unconditional

7

 

2.6

Waivers

8

 

2.7

Reliance

8

 

 

ARTICLE III

GRANT OF SECURITY INTEREST

9

 

 

 

3.1

Collateral

9

 

3.2

Grant of Security Interest in Collateral

9

 

 

ARTICLE IV

REPRESENTATIONS AND WARRANTIES

10

 

 

 

4.1

Title; No Other Liens

10

 

4.2

Perfection and Priority

10

 

4.3

Pledged Collateral

11

 

4.4

Instruments and Tangible Chattel Paper Formerly Accounts

11

 

4.5

Intellectual Property

11

 

4.6

Commercial Tort Claims

12

 

4.7

Specific Collateral

12

 

4.8

Enforcement

12

 

4.9

Representations and Warranties of the Credit Agreement

12

 

 

ARTICLE V

COVENANTS

12

 

 

 

5.1

Maintenance of Perfected Security Interest; Further Documentation and Consents

12

 

5.2

Pledged Collateral

13

 

5.3

Accounts

14

 

5.4

Commodity Contracts

14

 

5.5

Delivery of Instruments and Tangible Chattel Paper and Control of Investment Property, Letter-of-Credit Rights and Electronic Chattel Paper

14

 

5.6

Intellectual Property

15

 

5.7

Notices

16

 

5.8

Notice of Commercial Tort Claims

16

 

5.9

Controlled Securities Account

17

 

 

 

ARTICLE VI

REMEDIAL PROVISIONS

17

 

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TABLE OF CONTENTS

(continued)

 

 

 

Page

 

 

 

 

6.1

Code and Other Remedies

17

 

6.2

Accounts and Payments in Respect of General Intangibles

20

 

6.3

Pledged Collateral

21

 

6.4

Proceeds to be Turned over to and Held by Agent

22

 

6.5

Sale of Pledged Collateral

22

 

6.6

Deficiency

23

 

 

ARTICLE VII

AGENT

23

 

 

 

7.1

Agent’s Appointment as Attorney-in-Fact

23

 

7.2

Authorization to File Financing Statements

25

 

7.3

Authority of Agent

25

 

7.4

Duty; Obligations and Liabilities

26

 

 

ARTICLE VIII

MISCELLANEOUS

26

 

 

 

8.1

Reinstatement

26

 

8.2

Release of Collateral

27

 

8.3

Independent Obligations

27

 

8.4

No Waiver by Course of Conduct

27

 

8.5

Amendments in Writing

28

 

8.6

Additional Grantors; Additional Pledged Collateral

28

 

8.7

Notices

28

 

8.8

Successors and Assigns

28

 

8.9

Counterparts

28

 

8.10

Severability

29

 

8.11

Governing Law

29

 

8.12

Waiver of Jury Trial

29

 

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ANNEXES AND SCHEDULES

 

Annex 1

Form of Pledge Amendment

Annex 2

Form of Joinder Agreement

Annex 3

Form of Intellectual Property Security Agreement

Schedule 1

Commercial Tort Claims

Schedule 2

Filings

Schedule 3

Pledged Collateral

 

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AMENDED AND RESTATED GUARANTY AND SECURITY AGREEMENT, dated as of June 26, 2014 (this “ Agreement ”), by Diplomat Pharmacy, Inc., a Michigan corporation (the “ Borrower ”) and each of the other entities listed on the signature pages hereof or that becomes a party hereto pursuant to Section 8.6 (together with the Borrower, the “ Grantors ”), in favor of General Electric Capital Corporation (“ GE Capital ”), as administrative agent (in such capacity, together with its successors and permitted assigns, “ Agent ”) for the Lenders, the L/C Issuers and each other Secured Party (each as defined in the Credit Agreement referred to below).

 

W I T N E S S E T H:

 

WHEREAS, Borrower, the other Grantors, Lenders and Agent are party to that certain Credit Agreement dated as of July 20, 2012 (as amended, supplemented or otherwise modified prior to the date hereof, the “ Original Credit Agreement ”) by and among the Borrower, the other Credit Parties thereto, the Lenders, the L/C Issuers from time to time party thereto and GE Capital, as Agent;

 

WHEREAS, in connection with the Original Credit Agreement, Borrowers, Grantors and Agent entered into that certain Guaranty and Security Agreement dated as of July 20, 2012 (as amended, the “Original Guaranty and Security Agreement”);

 

WHEREAS, the parties hereto are entering into that certain Amended and Restated Credit Agreement dated of even date herewith (as the same may be amended, restated, supplemented or otherwise modified from time to time, the “ Credit Agreement ”), which amends and restates the Original Credit Agreement;

 

WHEREAS, the parties hereto are entering into this Guaranty and Security Agreement, which amends and restates the Original Guaranty and Security Agreement, in connection with the Credit Agreement.

 

WHEREAS, each Grantor has agreed to guaranty the Obligations (as defined in the Credit Agreement) of the Borrower;

 

WHEREAS, each Grantor will derive substantial direct and indirect benefits from the making of the extensions of credit under the Credit Agreement; and

 

WHEREAS, it is a condition precedent to the obligation of the Lenders and the L/C Issuers to make their respective extensions of credit to the Borrower under the Credit Agreement that the Grantors shall have executed and delivered this Agreement to Agent.

 

NOW, THEREFORE, in consideration of the premises and to induce the Lenders, the L/C Issuers and Agent to enter into the Credit Agreement and to induce the Lenders and the L/C Issuers to make their respective extensions of credit to the Borrower thereunder, each Grantor hereby agrees with Agent as follows:

 



 

ARTICLE I

 

DEFINED TERMS

 

1.1                                Definitions .

 

(a)                                  Capitalized terms used herein without definition are used as defined in the Credit Agreement.

 

(b)                                  The following terms have the meanings given to them in the UCC and terms used herein without definition that are defined in the UCC have the meanings given to them in the UCC (such meanings to be equally applicable to both the singular and plural forms of the terms defined):  “ account ”, “ account debtor ”, “ as-extracted collateral ”, “ certificated security ”, “ chattel paper ”, “ commercial tort claim ”, “ commodity contract ”, “ deposit account ”, “ electronic chattel paper ”, “ equipment ”, “ farm products ”, “ fixture ”, “ general intangible ”, “ goods ”, “ health-care-insurance receivable ”, “ instruments ”, “ inventory ”, “ investment property ”, “ letter-of-credit right ”, “ proceeds ”, “ record ”, “ securities account ”, “ security ”, “ supporting obligation ” and “ tangible chattel paper ”.

 

(c)                                   The following terms shall have the following meanings:

 

Agreement ” means this Amended and Restated Guaranty and Security Agreement.

 

Applicable IP Office ” means the United States Patent and Trademark Office, the United States Copyright Office or any similar office or agency within or outside the United States.

 

Cash Collateral Account ” means a deposit account or securities account subject, in each instance, to a Control Agreement, other than accounts established to cash collateralize L/C Reimbursement Obligations.

 

Collateral ” has the meaning specified in Section 3.1 .

 

Controlled Securities Account ” means each securities account (including all financial assets held therein and all certificates and instruments, if any, representing or evidencing such financial assets) that is the subject of an effective Control Agreement.

 

Excluded Equity ” means any voting stock in excess of 65% of the outstanding voting stock of any Foreign Subsidiary, which, pursuant to the terms of the Credit Agreement, is not required to guaranty the Obligations.  For the purposes of this definition, “ voting stock ” means, with respect to any issuer, the issued and outstanding shares of each class of Stock of such issuer entitled to vote (within the meaning of Treasury Regulations § 1.956-2(c)(2)).

 

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Excluded Property ” means, collectively, (i) Excluded Equity, (ii) any permit or license or any Contractual Obligation entered into by any Grantor (A) that prohibits or requires the consent of any Person other than the Borrower and its Affiliates which has not been obtained as a condition to the creation by such Grantor of a Lien on any right, title or interest in such permit, license or Contractual Obligation or any Stock or Stock Equivalent related thereto or (B) to the extent that any Requirement of Law applicable thereto prohibits the creation of a Lien thereon, but only, with respect to the prohibition in (A) and (B), to the extent, and for as long as, such prohibition is not terminated or rendered unenforceable or otherwise deemed ineffective by the UCC or any other Requirement of Law, (iii) Property owned by any Grantor that is subject to a purchase money Lien or a Capital Lease permitted under the Credit Agreement if the Contractual Obligation pursuant to which such Lien is granted (or in the document providing for such Capital Lease) prohibits or requires the consent of any Person other than the Borrower and its Affiliates which has not been obtained as a condition to the creation of any other Lien on such equipment, (iv) any “intent to use” Trademark applications for which a statement of use has not been filed (but only until such statement is filed) and (v) any Segregated Governmental Account; provided , however , “ Excluded Property ” shall not include any proceeds, products, substitutions or replacements of Excluded Property (unless such proceeds, products, substitutions or replacements would otherwise constitute Excluded Property).

 

Guaranteed Obligations ” has the meaning set forth in Section 2.1 .

 

Guarantor ” means each Grantor, other than the Borrower.

 

Guaranty ” means the guaranty of the Guaranteed Obligations made by the Guarantors as set forth in this Agreement.

 

Internet Domain Name ” means all right, title and interest (and all related IP Ancillary Rights) arising under any Requirement of Law in or relating to Internet domain names.

 

Material Intellectual Property ” means Intellectual Property that is owned by or licensed to a Grantor and material to the conduct of any Grantor’s business.

 

Pledged Certificated Stock ” means all certificated securities and any other Stock or Stock Equivalent of any Person evidenced by a certificate, instrument or other similar document (as defined in the UCC), in each case owned by any Grantor, and any distribution of property made on, in respect of or in exchange for the foregoing from time to time, including all Stock and Stock Equivalents listed on Schedule 3 .  Pledged Certificated Stock excludes any Excluded Property.

 

Pledged Collateral ” means, collectively, the Pledged Stock and the Pledged Debt Instruments.

 

3



 

Pledged Debt Instruments ” means all right, title and interest of any Grantor in instruments evidencing any Indebtedness owed to such Grantor or other obligations owed to such Grantor, and any distribution of property made on, in respect of or in exchange for the foregoing from time to time, including all Indebtedness described on Schedule 3 , issued by the obligors named therein.

 

Pledged Investment Property ” means any investment property of any Grantor, and any distribution of property made on, in respect of or in exchange for the foregoing from time to time, other than any Pledged Stock or Pledged Debt Instruments.  Pledged Investment Property.

 

Pledged Stock ” means all Pledged Certificated Stock and all Pledged Uncertificated Stock.

 

Pledged Uncertificated Stock ” means any Stock or Stock Equivalent of any Person that is not Pledged Certificated Stock, including all right, title and interest of any Grantor as a limited or general partner in any partnership not constituting Pledged Certificated Stock or as a member of any limited liability company, all right, title and interest of any Grantor in, to and under any Organization Document of any partnership or limited liability company to which it is a party, and any distribution of property made on, in respect of or in exchange for the foregoing from time to time, including in each case those interests set forth on Schedule 3 , to the extent such interests are not certificated.  Pledged Uncertificated Stock excludes any Excluded Property.

 

Software ” means (a) all computer programs, including source code and object code versions, (b) all data, databases and compilations of data, whether machine readable or otherwise, and (c) all documentation, training materials and configurations related to any of the foregoing.

 

UCC ” means the Uniform Commercial Code as from time to time in effect in the State of New York; provided , however , that, in the event that, by reason of mandatory provisions of any applicable Requirement of Law, any of the attachment, perfection or priority of Agent’s or any other Secured Party’s security interest in any Collateral is governed by the Uniform Commercial Code of a jurisdiction other than the State of New York, “ UCC ” shall mean the Uniform Commercial Code as in effect in such other jurisdiction for purposes of the provisions hereof relating to such attachment, perfection or priority and for purposes of the definitions related to or otherwise used in such provisions.

 

Vehicles ” means all vehicles covered by a certificate of title law of any state.

 

1.2                                Certain Other Terms .

 

(a)                                  The meanings given to terms defined herein shall be equally applicable to both the singular and plural forms of such terms.  The terms “herein”,

 

4



 

“hereof” and similar terms refer to this Agreement as a whole and not to any particular Article, Section or clause in this Agreement.  References herein to an Annex, Schedule, Article, Section or clause refer to the appropriate Annex or Schedule to, or Article, Section or clause in this Agreement.  Where the context requires, provisions relating to any Collateral when used in relation to a Grantor shall refer to such Grantor’s Collateral or any relevant part thereof.

 

(b)                                  Other Interpretive Provisions .

 

(i)                                      Defined Terms .  Unless otherwise specified herein or therein, all terms defined in this Agreement shall have the defined meanings when used in any certificate or other document made or delivered pursuant hereto.

 

(ii)                                   The Agreement .  The words “hereof”, “herein”, “hereunder” and words of similar import when used in this Agreement shall refer to this Agreement as a whole and not to any particular provision of this Agreement.

 

(iii)                                Certain Common Terms .  The term “including” is not limiting and means “including without limitation.”

 

(iv)                               Performance; Time .  Whenever any performance obligation hereunder (other than a payment obligation) shall be stated to be due or required to be satisfied on a day other than a Business Day, such performance shall be made or satisfied on the next succeeding Business Day.  In the computation of periods of time from a specified date to a later specified date, the word “from” means “from and including”; the words “to” and “until” each mean “to but excluding”, and the word “through” means “to and including.”  If any provision of this Agreement refers to any action taken or to be taken by any Person, or which such Person is prohibited from taking, such provision shall be interpreted to encompass any and all means, direct or indirect, of taking, or not taking, such action.

 

(v)                                  Contracts .  Unless otherwise expressly provided herein, references to agreements and other contractual instruments, including this Agreement and the other Loan Documents, shall be deemed to include all subsequent amendments, thereto, restatements and substitutions thereof and other modifications and supplements thereto which are in effect from time to time, but only to the extent such amendments and other modifications are not prohibited by the terms of any Loan Document.

 

(vi)                               Laws .  References to any statute or regulation are to be construed as including all statutory and regulatory provisions related thereto or consolidating, amending, replacing, supplementing or interpreting the statute or regulation.

 

5



 

ARTICLE II

 

GUARANTY

 

2.1                                Guaranty To induce the Lenders to make the Loans, the L/C Issuers to Issue Letters of Credit and each other Secured Party to make credit available to or for the benefit of one or more Grantors, each Guarantor hereby, jointly and severally, absolutely, unconditionally and irrevocably guarantees, as primary obligor and not merely as surety, the full and punctual payment and performance when due, whether at stated maturity or earlier, by reason of acceleration, mandatory prepayment or otherwise in accordance with any Loan Document, of all the Obligations of the Borrower whether existing on the date hereof or hereinafter incurred or created (the “ Guaranteed Obligations ”).  This Guaranty by each Guarantor hereunder constitutes a guaranty of payment and performance and not of collection.

 

2.2                                Limitation of Guaranty Any term or provision of this Guaranty or any other Loan Document to the contrary notwithstanding, the maximum aggregate amount for which any Guarantor shall be liable hereunder shall not exceed the maximum amount for which such Guarantor can be liable without rendering this Guaranty or any other Loan Document, as it relates to such Guarantor, subject to avoidance under applicable Requirements of Law relating to fraudulent conveyance or fraudulent transfer (including the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act and Section 548 of Title 11 of the United States Code or any applicable provisions of comparable Requirements of Law) (collectively, “ Fraudulent Transfer Laws ”).  Any analysis of the provisions of this Guaranty for purposes of Fraudulent Transfer Laws shall take into account the right of contribution established in Section 2.3 and, for purposes of such analysis, give effect to any discharge of intercompany debt as a result of any payment made under the Guaranty.

 

2.3                                Contribution To the extent that any Guarantor shall be required hereunder to pay any portion of any Guaranteed Obligation exceeding the greater of (a) the amount of the value actually received by such Guarantor and its Subsidiaries from the Loans and other Obligations and (b) the amount such Guarantor would otherwise have paid if such Guarantor had paid the aggregate amount of the Guaranteed Obligations in the same proportion as such Guarantor’s net worth on the date enforcement is sought hereunder bears to the aggregate net worth of all the Guarantors on such date, then such Guarantor shall be reimbursed by such other Guarantors for the amount of such excess, pro rata, based on the respective net worth of such other Guarantors on such date.

 

2.4                                Authorization; Other Agreements The Secured Parties are hereby authorized, without notice to or demand upon any Guarantor and without discharging or otherwise affecting the obligations of any Guarantor hereunder and without incurring any liability hereunder, from time to time, to do each of the following:

 

6


 

(a)                                  (i) subject to compliance, if applicable, with Section 9.1 of the Credit Agreement, modify, amend, supplement or otherwise change, (ii) accelerate or otherwise change the time of payment or (iii) waive or otherwise consent to noncompliance with, any Guaranteed Obligation or any Loan Document;

 

(b)                                  apply to the Guaranteed Obligations any sums by whomever paid or however realized to any Guaranteed Obligation in such order as provided in the Loan Documents;

 

(c)                                   refund at any time any payment received by any Secured Party in respect of any Guaranteed Obligation;

 

(d)                                  (i) sell, exchange, enforce, waive, substitute, liquidate, terminate, release, abandon, fail to perfect, subordinate, accept, substitute, surrender, exchange, affect, impair or otherwise alter or release any Collateral for any Guaranteed Obligation or any other guaranty therefor in any manner, (ii) receive, take and hold additional Collateral to secure any Guaranteed Obligation, (iii) add, release or substitute any one or more other Guarantors, makers or endorsers of any Guaranteed Obligation or any part thereof and (iv) otherwise deal in any manner with the Borrower or any other Guarantor, maker or endorser of any Guaranteed Obligation or any part thereof; and

 

(e)                                   settle, release, compromise, collect or otherwise liquidate the Guaranteed Obligations.

 

2.5                                Guaranty Absolute and Unconditional Each Guarantor hereby waives and agrees not to assert any defense, whether arising in connection with or in respect of any of the following or otherwise, and hereby agrees that its obligations under this Guaranty are irrevocable, absolute and unconditional and shall not be discharged as a result of or otherwise affected by any of the following (which may not be pleaded and evidence of which may not be introduced in any proceeding with respect to this Guaranty, in each case except as otherwise agreed in writing by Agent):

 

(a)                                  the invalidity or unenforceability of any obligation of the Borrower or any other Guarantor under any Loan Document or any other agreement or instrument relating thereto (including any amendment, consent or waiver thereto), or any security for, or other guaranty of, any Guaranteed Obligation or any part thereof, or the lack of perfection or continuing perfection or failure of priority of any security for the Guaranteed Obligations or any part thereof;

 

(b)                                  the absence of (i) any attempt to collect any Guaranteed Obligation or any part thereof from the Borrower or any other Guarantor or other action to enforce the same or (ii) any action to enforce any Loan Document or any Lien thereunder;

 

(c)                                   the failure by any Person to take any steps to perfect and maintain any Lien on, or to preserve any rights with respect to, any Collateral;

 

7



 

(d)                                  any workout, insolvency, bankruptcy proceeding, reorganization, arrangement, liquidation or dissolution by or against the Borrower, any other Guarantor or any of the Borrower’s other Subsidiaries or any procedure, agreement, order, stipulation, election, action or omission thereunder, including any discharge or disallowance of, or bar or stay against collecting, any Guaranteed Obligation (or any interest thereon) in or as a result of any such proceeding;

 

(e)                                   any foreclosure, whether or not through judicial sale, and any other sale or other disposition of any Collateral or any election following the occurrence of an Event of Default by any Secured Party to proceed separately against any Collateral in accordance with such Secured Party’s rights under any applicable Requirement of Law; or

 

(f)                                    any other defense, setoff, counterclaim or any other circumstance that might otherwise constitute a legal or equitable discharge of the Borrower, any other Guarantor or any other Subsidiary of the Borrower, in each case other than the payment in full of the Guaranteed Obligations.

 

2.6                                Waivers Each Guarantor hereby unconditionally and irrevocably waives and agrees not to assert any claim, defense, setoff or counterclaim based on diligence, promptness, presentment, requirements for any demand or notice hereunder including any of the following:  (a) any demand for payment or performance and protest and notice of protest; (b) any notice of acceptance; (c) any presentment, demand, protest or further notice or other requirements of any kind with respect to any Guaranteed Obligation (including any accrued but unpaid interest thereon) becoming immediately due and payable; and (d) any other notice in respect of any Guaranteed Obligation or any part thereof, and any defense arising by reason of any disability or other defense of the Borrower or any other Guarantor.  Each Guarantor further unconditionally and irrevocably agrees not to (x) enforce or otherwise exercise any right of subrogation or any right of reimbursement or contribution or similar right against the Borrower or any other Guarantor by reason of any Loan Document or any payment made thereunder or (y) assert any claim, defense, setoff or counterclaim it may have against any other Credit Party or set off any of its obligations to such other Credit Party against obligations of such Credit Party to such Guarantor.  No obligation of any Guarantor hereunder shall be discharged other than by complete performance.

 

2.7                                Reliance .  Each Guarantor hereby assumes responsibility for keeping itself informed of the financial condition of the Borrower, each other Guarantor and any other guarantor, maker or endorser of any Guaranteed Obligation or any part thereof, and of all other circumstances bearing upon the risk of nonpayment of any Guaranteed Obligation or any part thereof that diligent inquiry would reveal, and each Guarantor hereby agrees that no Secured Party shall have any duty to advise any Guarantor of information known to it regarding such condition or any such circumstances.  In the event any Secured Party, in its sole discretion, undertakes at any time or from time to time to provide any such information to any Guarantor, such Secured Party shall be under no obligation to (a) undertake any investigation not a part of its regular business routine, (b) disclose any

 

8



 

information that such Secured Party, pursuant to accepted or reasonable commercial finance or banking practices, wishes to maintain confidential or (c) make any future disclosures of such information or any other information to any Guarantor.

 

ARTICLE III

 

GRANT OF SECURITY INTEREST

 

3.1                                Collateral .  For the purposes of this Agreement, all of the following property now owned or at any time hereafter acquired by a Grantor or in which a Grantor now has or at any time in the future may acquire any right, title or interests is collectively referred to as the “ Collateral ”:

 

(a)                                  all accounts, chattel paper, deposit accounts, documents (as defined in the UCC), equipment, general intangibles, instruments, inventory, investment property, letter of credit rights and any supporting obligations related to any of the foregoing;

 

(b)                                  the commercial tort claims described on Schedule 1 and on any supplement thereto received by Agent pursuant to Section 5.8 ;

 

(c)                                   all books and records pertaining to the other property described in this Section 3.1 ;

 

(d)                                  all property of such Grantor held by any Secured Party, including all property of every description, in the custody of or in transit to such Secured Party for any purpose, including safekeeping, collection or pledge, for the account of such Grantor or as to which such Grantor may have any right or power, including but not limited to cash;

 

(e)                                   all other goods (including but not limited to fixtures) and personal property of such Grantor, whether tangible or intangible and wherever located; and

 

(f)                                    to the extent not otherwise included, all proceeds of the foregoing.

 

3.2                                Grant of Security Interest in Collateral .

 

(a)                                  Each Grantor, as collateral security for the prompt and complete payment and performance when due (whether at stated maturity, by acceleration or otherwise) of the Obligations of such Grantor (the “ Secured Obligations ”), hereby mortgages, pledges and hypothecates to Agent for the benefit of the Secured Parties, and grants to Agent for the benefit of the Secured Parties a Lien on and security interest in, all of its right, title and interest in, to and under the Collateral of such Grantor; provided , however , notwithstanding the foregoing, no Lien or security interest is hereby granted on any Excluded Property; provided , further , that if and when any property shall cease to be Excluded Property, a Lien on and security in such property shall be deemed granted

 

9



 

therein.  Each Grantor hereby represents and warrants that the Excluded Property, when taken as a whole, is not material to the business operations or financial condition of the Grantors, taken as a whole.

 

(b)                                  Without limiting the generality of the foregoing, each Grantor hereby reaffirms and continues in effect the respective grants of security interests in the Original Guaranty and Security Agreement, and all UCC financing statements and other documents of assignment, perfection and priority executed and delivered pursuant to the Original Guaranty and Security Agreement.

 

ARTICLE IV

 

REPRESENTATIONS AND WARRANTIES

 

To induce the Lenders, the L/C Issuers and Agent to enter into the Loan Documents, each Grantor hereby represents and warrants each of the following to Agent, the Lenders, the L/C Issuers and the other Secured Parties.

 

4.1                                Title; No Other Liens .  Except for the Lien granted to Agent pursuant to this Agreement and other Permitted Liens (except for those Permitted Liens not permitted to exist on any Collateral) under any Loan Document (including Section 4.2 ), such Grantor owns or holds title to, as applicable, each item of the Collateral free and clear of any and all Liens or claims of others.  Such Grantor (a) is the record and beneficial owner of the Collateral pledged by it hereunder constituting instruments or certificates and (b) has rights in or the power to transfer each other item of Collateral in which a Lien is granted by it hereunder, free and clear of any other Lien.

 

4.2                                Perfection and Priority .  The security interest granted pursuant to this Agreement constitutes a valid and continuing perfected security interest in favor of Agent in all Collateral subject, for the following Collateral, to the occurrence of the following:  (i) in the case of all Collateral in which a security interest may be perfected by filing a financing statement under the UCC, the completion of the filings and other actions specified on Schedule 2 (which, in the case of all filings and other documents referred to on such schedule, have been delivered to Agent in completed and duly authorized form), (ii) with respect to any deposit account, the execution of Control Agreements, (iii) in the case of all Copyrights, Trademarks and Patents for which UCC filings are insufficient, all appropriate filings having been made with the United States Copyright Office or the United States Patent and Trademark Office, as applicable, (iv) in the case of letter-of-credit rights that are not supporting obligations of Collateral, the execution of a Contractual Obligation granting control to Agent over such letter-of-credit rights, and (v) in the case of electronic chattel paper, the completion of all steps necessary to grant control to Agent over such electronic chattel paper.  Such security interest shall be prior to all other Liens on the Collateral except for Permitted Liens having priority over Agent’s Lien by operation of law or permitted pursuant to Section 5.1(e) , 5.1(g) , 5 .1(h) , 5.1(i) , 5.1(k) , 5.1(p)  or 5.1(q)  of the Credit Agreement upon (i) in the case of all Pledged Certificated Stock, Pledged Debt Instruments and Pledged Investment Property, the

 

10



 

delivery thereof to Agent of such Pledged Certificated Stock, Pledged Debt Instruments and Pledged Investment Property consisting of instruments and certificates, in each case properly endorsed for transfer to Agent or in blank, (ii) in the case of all Pledged Investment Property not in certificated form, the execution of Control Agreements with respect to such investment property and (iii) in the case of all other instruments and tangible chattel paper that are not Pledged Certificated Stock, Pledged Debt Instruments or Pledged Investment Property, the delivery thereof to Agent of such instruments and tangible chattel paper.  Except as set forth in this Section 4.2 , all actions by each Grantor necessary or desirable to protect and perfect the Lien granted hereunder on the Collateral have been duly taken.

 

4.3                                Pledged Collateral .

 

(a)                                  The Pledged Stock pledged by such Grantor hereunder (a) is listed on Schedule 3 and constitutes that percentage of the issued and outstanding equity of all classes of each issuer thereof as set forth on Schedule 3 , (b) has been duly authorized, validly issued and is fully paid and nonassessable (other than Pledged Stock in limited liability companies and partnerships) and (c) constitutes the legal, valid and binding obligation of the obligor with respect thereto, enforceable in accordance with its terms.

 

(b)                                  As of the Closing Date, all Pledged Collateral (other than Pledged Uncertificated Stock) and all Pledged Investment Property consisting of instruments and certificates has been delivered to Agent in accordance with Section 5.2(a) .

 

(c)                                   Upon the occurrence and during the continuance of an Event of Default, Agent shall be entitled to exercise all of the rights of the Grantor granting the security interest in any Pledged Stock, and a transferee or assignee of such Pledged Stock shall become a holder of such Pledged Stock to the same extent as such Grantor and be entitled to participate in the management of the issuer of such Pledged Stock and, upon the transfer of the entire interest of such Grantor, such Grantor shall, by operation of law, cease to be a holder of such Pledged Stock.

 

4.4                                Instruments and Tangible Chattel Paper Formerly Accounts .  No amount payable to such Grantor under or in connection with any account is evidenced by any instrument or tangible chattel paper that has not been delivered to Agent, properly endorsed for transfer, to the extent delivery is required by Section 5.5(a) .

 

4.5                                Intellectual Property .  On the Closing Date, all Material Intellectual Property owned by such Grantor is valid, in full force and effect, subsisting, unexpired and enforceable, and no Material Intellectual Property has been abandoned.  No breach or default of any material IP License shall be caused by any of the following, and none of the following shall limit or impair the ownership, use, validity or enforceability of, or any rights of such Grantor in, any Material Intellectual Property:  (i) the consummation of the transactions contemplated by any Loan Document or (ii) any holding, decision, judgment or order rendered by any Governmental Authority.  There are no pending (or, to the knowledge of such Grantor, threatened) actions, investigations, suits, proceedings, audits,

 

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claims, demands, orders or disputes challenging the ownership, use, validity, enforceability of, or such Grantor’s rights in, any Material Intellectual Property of such Grantor.  To such Grantor’s knowledge, no Person has been or is infringing, misappropriating, diluting, violating or otherwise impairing any Intellectual Property of such Grantor.  Such Grantor, and to such Grantor’s knowledge each other party thereto, is not in material breach or default of any material IP License.

 

4.6                                Commercial Tort Claims .  The only commercial tort claims of any Grantor existing on the date hereof (regardless of whether the amount, defendant or other material facts can be determined and regardless of whether such commercial tort claim has been asserted, threatened or has otherwise been made known to the obligee thereof or whether litigation has been commenced for such claims) are those listed on Schedule 1 , which sets forth such information separately for each Grantor.

 

4.7                                Specific Collateral .  None of the Collateral is or is proceeds or products of farm products, as-extracted collateral, health-care-insurance receivables or timber to be cut.

 

4.8                                Enforcement .  No Permit, notice to or filing with any Governmental Authority or any other Person or any consent from any Person is required for the exercise by Agent of its rights (including voting rights) provided for in this Agreement or the enforcement of remedies in respect of the Collateral pursuant to this Agreement, including the transfer of any Collateral, except as may be required in connection with the disposition of any portion of the Pledged Collateral by laws affecting the offering and sale of securities generally or any approvals that may be required to be obtained from any bailees or landlords to collect the Collateral.

 

4.9                                Representations and Warranties of the Credit Agreement .  The representations and warranties as to such Grantor and its Subsidiaries made in Article III (Representations and Warranties) of the Credit Agreement are true and correct on each date as required by Section 2.2 of the Credit Agreement.

 

ARTICLE V

 

COVENANTS

 

Each Grantor agrees with Agent to the following, as long as any Obligation or Commitment remains outstanding (other than contingent indemnification Obligations to the extent no claim giving rise thereto has been asserted):

 

5.1                                Maintenance of Perfected Security Interest; Further Documentation and Consents .

 

(a)                                  Generally .  Such Grantor shall (i) not use or permit any Collateral to be used unlawfully or in violation of any provision of any Loan Document, any Related Agreement, any Requirement of Law or any policy of insurance covering the

 

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Collateral and (ii) not enter into any Contractual Obligation or undertaking restricting the right or ability of such Grantor or Agent to sell, assign, convey or transfer any Collateral if such restriction would reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect.

 

(b)                                  Such Grantor shall maintain the security interest created by this Agreement as a perfected security interest having at least the priority described in Section 4.2 and shall defend such security interest and such priority against the claims and demands of all Persons.

 

(c)                                   Subject to any applicable limitations in the Credit Agreement, such Grantor shall furnish to Agent from time to time statements and schedules further identifying and describing the Collateral and such other documents in connection with the Collateral as Agent may reasonably request, all in reasonable detail and in form and substance satisfactory to Agent.

 

(d)                                  At any time and from time to time, upon the written request of Agent, such Grantor shall, for the purpose of obtaining or preserving the full benefits of this Agreement and of the rights and powers herein granted, (i) promptly and duly execute and deliver, and have recorded, such further documents, including an authorization to file (or, as applicable, the filing) of any financing statement or amendment under the UCC (or other filings under similar Requirements of Law) in effect in any jurisdiction with respect to the security interest created hereby and (ii) take such further action as Agent may reasonably request, including (A) using its commercially reasonable efforts to secure all approvals necessary or appropriate for the assignment to or for the benefit of Agent of any Contractual Obligation, including any IP License, held by such Grantor and to enforce the security interests granted hereunder and (B) executing and delivering any Control Agreements with respect to deposit accounts and securities accounts.

 

(e)                                   [Intentionally Omitted]..

 

(f)                                    To ensure that a Lien and security interest is granted on any of the Excluded Property set forth in clause (ii) of the definition of Excluded Property , such Grantor shall use its commercially reasonable efforts to obtain any required consents from any Person other than the Borrower and its Affiliates with respect to any p ermit or license or any Contractual Obligation with such Person entered into by such Grantor that requires such consent as a condition to the creation by such Grantor of a Lien on any right, title or interest in such permit, license or Contractual Obligation or any Stock or Stock Equivalent related thereto.

 

5.2                                Pledged Collateral .

 

(a)                                  Delivery of Pledged Collateral .  Such Grantor shall (i) deliver to Agent, in suitable form for transfer and in form and substance satisfactory to Agent, (A) all Pledged Certificated Stock, (B) all Pledged Debt Instruments and (C) all certificates

 

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and instruments evidencing Pledged Investment Property and (ii) maintain all other Pledged Investment Property in a Controlled Securities Account.

 

(b)                                  Event of Default .  During the continuance of an Event of Default, Agent shall have the right, at any time in its discretion and without notice to the Grantor, to (i) transfer to or to register in its name or in the name of its nominees any Pledged Collateral or any Pledged Investment Property and (ii) exchange any certificate or instrument representing or evidencing any Pledged Collateral or any Pledged Investment Property for certificates or instruments of smaller or larger denominations.

 

(c)                                   Cash Distributions with respect to Pledged Collateral .  Except as provided in Article VI and subject to the limitations set forth in the Credit Agreement, such Grantor shall be entitled to receive all cash distributions paid in respect of the Pledged Collateral.

 

(d)                                  Voting Rights .  Except as provided in Article VI , such Grantor shall be entitled to exercise all voting, consent and corporate, partnership, limited liability company and similar rights with respect to the Pledged Collateral; provided , however , that no vote shall be cast, consent given or right exercised or other action taken by such Grantor that would impair the Collateral or be inconsistent with or result in any violation of any provision of any Loan Document.

 

5.3                                Accounts .

 

(a)                                  Such Grantor shall not, other than in the ordinary course of business, (i) grant any extension of the time of payment of any account, (ii) compromise or settle any account for less than the full amount thereof, (iii) release, wholly or partially, any Person liable for the payment of any account, (iv) allow any credit or discount on any account or (v) amend, supplement or modify any account in any manner that could adversely affect the value thereof.

 

(b)                                  Agent shall have the right to make test verifications of the Accounts in any manner and through any medium that it reasonably considers advisable, and such Grantor shall furnish all such assistance and information as Agent may reasonably require in connection therewith.  At any time and from time to time, upon Agent’s reasonable request and subject to any applicable limitations in the Credit Agreement, such Grantor shall cause independent public accountants or others satisfactory to Agent to furnish to Agent reports showing reconciliations, aging and test verifications of, and trial balances for, the accounts.

 

5.4                                Commodity Contracts .  Such Grantor shall not have any commodity contract unless subject to a Control Agreement.

 

5.5                                Delivery of Instruments and Tangible Chattel Paper and Control of Investment Property, Letter-of-Credit Rights and Electronic Chattel Paper .  If any amount payable under or in connection with any Collateral owned by such Grantor shall be or

 

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become evidenced by an instrument or tangible chattel paper other than such instrument delivered in accordance with Section 5.2(a)  and in the possession of Agent, such Grantor shall mark all such instruments and tangible chattel paper with the following legend:  “This writing and the obligations evidenced or secured hereby are subject to the security interest of General Electric Capital Corporation, as Agent” and, at the request of Agent, shall immediately deliver such instrument or tangible chattel paper to Agent, duly indorsed in a manner satisfactory to Agent.

 

(b)                                  Such Grantor shall not grant “ control ” (within the meaning of such term under Article 9-106 of the UCC) over any investment property to any Person other than Agent.

 

(c)                                   If such Grantor is or becomes the beneficiary of a letter of credit that is (i) not a supporting obligation of any Collateral and (ii) in excess of $100,000, such Grantor shall promptly, and in any event within 2 Business Days after becoming a beneficiary, notify Agent thereof and enter into a Contractual Obligation with Agent, the issuer of such letter of credit or any nominated person with respect to the letter-of-credit rights under such letter of credit.  Such Contractual Obligation shall assign such letter-of-credit rights to Agent and such assignment shall be sufficient to grant control for the purposes of Section 9-107 of the UCC (or any similar section under any equivalent UCC).  Such Contractual Obligation shall also direct all payments thereunder to a Cash Collateral Account.  The provisions of the Contractual Obligation shall be in form and substance reasonably satisfactory to Agent.

 

(d)                                  If any amount payable under or in connection with any Collateral owned by such Grantor shall be or become evidenced by electronic chattel paper, such Grantor shall take all steps necessary to grant Agent control of all such electronic chattel paper for the purposes of Section 9-105 of the UCC (or any similar section under any equivalent UCC) and all “ transferable records ” as defined in each of the Uniform Electronic Transactions Act and the Electronic Signatures in Global and National Commerce Act.

 

5.6                                Intellectual Property .

 

(a)                                  Within 30 days after any change to Schedule 3.16 to the Credit Agreement for such Grantor, such Grantor shall provide Agent notification thereof and the short-form intellectual property agreements and assignments as described in this Section 5.6 and any other documents that Agent reasonably requests with respect thereto.

 

(b)                                  Such Grantor shall (and shall cause all its licensees to) (i) (1) continue to use each Trademark included in the Material Intellectual Property in order to maintain such Trademark in full force and effect with respect to each class of goods for which such Trademark is currently used, free from any claim of abandonment for non-use, (2) maintain at least the same standards of quality of products and services offered under such Trademark as are currently maintained, (3) use such Trademark with the appropriate notice of registration and all other notices and legends required by applicable

 

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Requirements of Law, (4) not adopt or use any other Trademark that is confusingly similar or a colorable imitation of such Trademark unless Agent shall obtain a perfected security interest in such other Trademark pursuant to this Agreement and (ii) not do any act or omit to do any act whereby (w) such Trademark (or any goodwill associated therewith) may become destroyed, invalidated, impaired or harmed in any way, (x) any Patent included in the Material Intellectual Property may become forfeited, misused, unenforceable, abandoned or dedicated to the public, (y) any portion of the Copyrights included in the Material Intellectual Property may become invalidated, otherwise impaired or fall into the public domain or (z) any Trade Secret that is Material Intellectual Property may become publicly available or otherwise unprotectable.

 

(c)                                   Such Grantor shall notify Agent immediately if it knows, or has reason to know, that any application or registration relating to any Material Intellectual Property may become forfeited, misused, unenforceable, abandoned or dedicated to the public, or of any adverse determination or development regarding the validity or enforceability or such Grantor’s ownership of, interest in, right to use, register, own or maintain any Material Intellectual Property (including the institution of, or any such determination or development in, any proceeding relating to the foregoing in any Applicable IP Office).  Such Grantor shall take all actions that are necessary or reasonably requested by Agent to maintain and pursue each application (and to obtain the relevant registration or recordation) and to maintain each registration and recordation included in the Material Intellectual Property.

 

(d)                                  Such Grantor shall not knowingly do any act or omit to do any act to infringe, misappropriate, dilute, violate or otherwise impair the Intellectual Property of any other Person.  In the event that any Material Intellectual Property of such Grantor is or has been infringed, misappropriated, violated, diluted or otherwise impaired by a third party, such Grantor shall take such action as it reasonably deems appropriate under the circumstances in response thereto, including promptly bringing suit and recovering all damages therefor.

 

(e)                                   Such Grantor shall execute and deliver to Agent in form and substance reasonably acceptable to Agent and suitable for (i) filing in the Applicable IP Office the short-form intellectual property security agreements in the form attached hereto as Annex 3 for all Copyrights, Trademarks, Patents and IP Licenses of such Grantor and (ii) recording with the appropriate Internet domain name registrar, a duly executed form of assignment for all Internet Domain Names of such Grantor (together with appropriate supporting documentation as may be requested by Agent).

 

5.7                                Notices .  Such Grantor shall promptly notify Agent in writing of its acquisition of any interest hereafter in property that is of a type where a security interest or lien must be or may be registered, recorded or filed under, or notice thereof given under, any federal statute or regulation.

 

5.8                                Notice of Commercial Tort Claims .  Such Grantor agrees that, if it shall acquire any interest in any commercial tort claim (whether from another Person or

 

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because such commercial tort claim shall have come into existence), (i) such Grantor shall, immediately upon such acquisition, deliver to Agent, in each case in form and substance satisfactory to Agent, a notice of the existence and nature of such commercial tort claim and a supplement to Schedule 1 containing a specific description of such commercial tort claim, (ii)  Section 3.1 shall apply to such commercial tort claim and (iii) such Grantor shall execute and deliver to Agent, in each case in form and substance satisfactory to Agent, any document, and take all other action, deemed by Agent to be reasonably necessary or appropriate for Agent to obtain, on behalf of the Lenders, a perfected security interest having at least the priority set forth in Section 4.2 in all such commercial tort claims.  Any supplement to Schedule 1 delivered pursuant to this Section 5.8 shall, after the receipt thereof by Agent, become part of Schedule 1 for all purposes hereunder other than in respect of representations and warranties made prior to the date of such receipt.

 

5.9                                Controlled Securities Account .   Each Grantor shall deposit all of its Cash Equivalents in securities accounts that are Controlled Securities Accounts.

 

ARTICLE VI

 

REMEDIAL PROVISIONS

 

6.1                                Code and Other Remedies .

 

(a)                                  UCC Remedies .  During the continuance of an Event of Default, Agent may exercise, in addition to all other rights and remedies granted to it in this Agreement and in any other instrument or agreement securing, evidencing or relating to any Secured Obligation, all rights and remedies of a secured party under the UCC or any other applicable law.

 

(b)                                  Disposition of Collateral .  Without limiting the generality of the foregoing, Agent may, without demand of performance or other demand, presentment, protest, advertisement or notice of any kind (except any notice required by law referred to below) to or upon any Grantor or any other Person (all and each of which demands, defenses, advertisements and notices are hereby waived), during the continuance of any Event of Default (personally or through its agents or attorneys), (i) enter upon the premises where any Collateral is located, without any obligation to pay rent, through self-help, without judicial process, without first obtaining a final judgment or giving any Grantor or any other Person notice or opportunity for a hearing on Agent’s claim or action, (ii) collect, receive, appropriate and realize upon any Collateral and (iii) sell, assign, convey, transfer, grant option or options to purchase and deliver any Collateral (enter into Contractual Obligations to do any of the foregoing), in one or more parcels at public or private sale or sales, at any exchange, broker’s board or office of any Secured Party or elsewhere upon such terms and conditions as it may deem advisable and at such prices as it may deem best, for cash or on credit or for future delivery without assumption of any credit risk.  Agent shall have the right, upon any such public sale or sales and, to the extent permitted by the UCC and other applicable Requirements of Law, upon any

 

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such private sale, to purchase the whole or any part of the Collateral so sold, free of any right or equity of redemption of any Grantor, which right or equity is hereby waived and released.

 

(c)                                   Management of the Collateral .  Each Grantor further agrees, that, during the continuance of any Event of Default, (i) at Agent’s request, it shall assemble the Collateral and make it available to Agent at places that Agent shall reasonably select, whether at such Grantor’s premises or elsewhere, (ii) without limiting the foregoing, Agent also has the right to require that each Grantor store and keep any Collateral pending further action by Agent and, while any such Collateral is so stored or kept, provide such guards and maintenance services as shall be necessary to protect the same and to preserve and maintain such Collateral in good condition, (iii) until Agent is able to sell, assign, convey or transfer any Collateral, Agent shall have the right to hold or use such Collateral to the extent that it deems appropriate for the purpose of preserving the Collateral or its value or for any other purpose deemed appropriate by Agent and (iv) Agent may, if it so elects, seek the appointment of a receiver or keeper to take possession of any Collateral and to enforce any of Agent’s remedies (for the benefit of the Secured Parties), with respect to such appointment without prior notice or hearing as to such appointment.  Agent shall not have any obligation to any Grantor to maintain or preserve the rights of any Grantor as against third parties with respect to any Collateral while such Collateral is in the possession of Agent.

 

(d)                                  Application of Proceeds .  Agent shall apply the cash proceeds of any action taken by it pursuant to this Section 6.1 , after deducting all reasonable costs and expenses of every kind incurred in connection therewith or incidental to the care or safekeeping of any Collateral or in any way relating to the Collateral or the rights of Agent and any other Secured Party hereunder, including reasonable attorneys’ fees and disbursements, to the payment in whole or in part of the Secured Obligations, as set forth in the Credit Agreement, and only after such application and after the payment by Agent of any other amount required by any Requirement of Law, need Agent account for the surplus, if any, to any Grantor.

 

(e)                                   Direct Obligation .  Neither Agent nor any other Secured Party shall be required to make any demand upon, or pursue or exhaust any right or remedy against, any Grantor, any other Credit Party or any other Person with respect to the payment of the Obligations or to pursue or exhaust any right or remedy with respect to any Collateral therefor or any direct or indirect guaranty thereof.  All of the rights and remedies of Agent and any other Secured Party under any Loan Document shall be cumulative, may be exercised individually or concurrently and not exclusive of any other rights or remedies provided by any Requirement of Law.  To the extent it may lawfully do so, each Grantor absolutely and irrevocably waives and relinquishes the benefit and advantage of, and covenants not to assert against Agent or any other Secured Party, any valuation, stay, appraisement, extension, redemption or similar laws and any and all rights or defenses it may have as a surety, now or hereafter existing, arising out of the exercise by them of any rights hereunder.  If any notice of a proposed sale or other

 

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disposition of any Collateral shall be required by law, such notice shall be deemed reasonable and proper if given at least 10 days before such sale or other disposition.

 

(f)                                    Commercially Reasonable .  To the extent that applicable Requirements of Law impose duties on Agent to exercise remedies in a commercially reasonable manner, each Grantor acknowledges and agrees that it is not commercially unreasonable for Agent to do any of the following:

 

(i)                                      fail to incur significant costs, expenses or other Liabilities reasonably deemed as such by Agent to prepare any Collateral for disposition or otherwise to complete raw material or work in process into finished goods or other finished products for disposition;

 

(ii)                                   fail to obtain Permits, or other consents, for access to any Collateral to sell or for the collection or sale of any Collateral, or, if not required by other Requirements of Law, fail to obtain Permits or other consents for the collection or disposition of any Collateral;

 

(iii)                                fail to exercise remedies against account debtors or other Persons obligated on any Collateral or to remove Liens on any Collateral or to remove any adverse claims against any Collateral;

 

(iv)                               advertise dispositions of any Collateral through publications or media of general circulation, whether or not such Collateral is of a specialized nature, or to contact other Persons, whether or not in the same business as any Grantor, for expressions of interest in acquiring any such Collateral;

 

(v)                                  exercise collection remedies against account debtors and other Persons obligated on any Collateral, directly or through the use of collection agencies or other collection specialists, hire one or more professional auctioneers to assist in the disposition of any Collateral, whether or not such Collateral is of a specialized nature, or, to the extent deemed appropriate by Agent, obtain the services of other brokers, investment bankers, consultants and other professionals to assist Agent in the collection or disposition of any Collateral, or utilize Internet sites that provide for the auction of assets of the types included in the Collateral or that have the reasonable capacity of doing so, or that match buyers and sellers of assets to dispose of any Collateral;

 

(vi)                               dispose of assets in wholesale rather than retail markets;

 

(vii)                            disclaim disposition warranties, such as title, possession or quiet enjoyment; or

 

(viii)                         purchase insurance or credit enhancements to insure Agent against risks of loss, collection or disposition of any Collateral or to provide to Agent a guaranteed return from the collection or disposition of any Collateral.

 

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Each Grantor acknowledges that the purpose of this Section 6.1 is to provide a non-exhaustive list of actions or omissions that are commercially reasonable when exercising remedies against any Collateral and that other actions or omissions by the Secured Parties shall not be deemed commercially unreasonable solely on account of not being indicated in this Section 6.1 .  Without limitation upon the foregoing, nothing contained in this Section 6.1 shall be construed to grant any rights to any Grantor or to impose any duties on Agent that would not have been granted or imposed by this Agreement or by applicable Requirements of Law in the absence of this Section 6.1 .

 

(g)                                   IP Licenses .  For the purpose of enabling Agent to exercise rights and remedies under this Section 6.1 (including in order to take possession of, collect, receive, assemble, process, appropriate, remove, realize upon, sell, assign, convey, transfer or grant options to purchase any Collateral) at such time as Agent shall be lawfully entitled to exercise such rights and remedies, each Grantor hereby grants to Agent, for the benefit of the Secured Parties, (i) an irrevocable, nonexclusive, worldwide license (exercisable without payment of royalty or other compensation to such Grantor), including in such license the right to sublicense, use and practice any Intellectual Property now owned or hereafter acquired by such Grantor and access to all media in which any of the licensed items may be recorded or stored and to all Software and programs used for the compilation or printout thereof and (ii) an irrevocable license (without payment of rent or other compensation to such Grantor) to use, operate and occupy all real Property owned, operated, leased, subleased or otherwise occupied by such Grantor.

 

6.2                                Accounts and Payments in Respect of General Intangibles .

 

(a)                                  In addition to, and not in substitution for, any similar requirement in the Credit Agreement, if required by Agent at any time during the continuance of an Event of Default, any payment of accounts or payment in respect of general intangibles, when collected by any Grantor, shall be promptly (and, in any event, within 2 Business Days) deposited by such Grantor in the exact form received, duly indorsed by such Grantor to Agent, in a Cash Collateral Account, subject to withdrawal by Agent as provided in Section 6.4 .  Until so turned over, such payment shall be held by such Grantor in trust for Agent, segregated from other funds of such Grantor.  Each such deposit of proceeds of accounts and payments in respect of general intangibles shall be accompanied by a report identifying in reasonable detail the nature and source of the payments included in the deposit.

 

(b)                                  At any time during the continuance of an Event of Default:

 

(i)                                      each Grantor shall, upon Agent’s request, deliver to Agent all original and other documents evidencing, and relating to, the Contractual Obligations and transactions that gave rise to any account or any payment in respect of general intangibles, including all original orders, invoices and shipping receipts and notify account debtors that the accounts or general intangibles have been collaterally assigned to Agent and that payments in respect thereof shall be made directly to Agent;

 

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(ii)                                   Agent may, without notice, at any time during the continuance of an Event of Default, limit or terminate the authority of a Grantor to collect its accounts or amounts due under general intangibles or any thereof and, in its own name or in the name of others, communicate with account debtors to verify with them to Agent’s satisfaction the existence, amount and terms of any account or amounts due under any general intangible.  In addition, Agent may at any time enforce such Grantor’s rights against such account debtors and obligors of general intangibles; and

 

(iii)                                each Grantor shall take all actions, deliver all documents and provide all information necessary or reasonably requested by Agent to ensure any Internet Domain Name is registered.

 

(c)                                   Anything herein to the contrary notwithstanding, each Grantor shall remain liable under each account and each payment in respect of general intangibles to observe and perform all the conditions and obligations to be observed and performed by it thereunder, all in accordance with the terms of any agreement giving rise thereto.  No Secured Party shall have any obligation or liability under any agreement giving rise to an account or a payment in respect of a general intangible by reason of or arising out of any Loan Document or the receipt by any Secured Party of any payment relating thereto, nor shall any Secured Party be obligated in any manner to perform any obligation of any Grantor under or pursuant to any agreement giving rise to an account or a payment in respect of a general intangible, to make any payment, to make any inquiry as to the nature or the sufficiency of any payment received by it or as to the sufficiency of any performance by any party thereunder, to present or file any claim, to take any action to enforce any performance or to collect the payment of any amounts that may have been assigned to it or to which it may be entitled at any time or times.

 

6.3                                Pledged Collateral .

 

(a)                                  Voting Rights .  During the continuance of an Event of Default, upon notice by Agent to the relevant Grantor or Grantors, Agent or its nominee may exercise (A) any voting, consent, corporate and other right pertaining to the Pledged Collateral at any meeting of shareholders, partners or members, as the case may be, of the relevant issuer or issuers of Pledged Collateral or otherwise and (B) any right of conversion, exchange and subscription and any other right, privilege or option pertaining to the Pledged Collateral as if it were the absolute owner thereof (including the right to exchange at its discretion any Pledged Collateral upon the merger, amalgamation, consolidation, reorganization, recapitalization or other fundamental change in the corporate or equivalent structure of any issuer of Pledged Stock, the right to deposit and deliver any Pledged Collateral with any committee, depositary, transfer agent, registrar or other designated agency upon such terms and conditions as Agent may determine), all without liability except to account for property actually received by it; provided , however , that Agent shall have no duty to any Grantor to exercise any such right, privilege or option and shall not be responsible for any failure to do so or delay in so doing.

 

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(b)                                  Proxies .  In order to permit Agent to exercise the voting and other consensual rights that it may be entitled to exercise pursuant hereto and to receive all dividends and other distributions that it may be entitled to receive hereunder, (i) each Grantor shall promptly execute and deliver (or cause to be executed and delivered) to Agent all such proxies, dividend payment orders and other instruments as Agent may from time to time reasonably request and (ii) without limiting the effect of clause (i) above, such Grantor hereby grants to Agent an irrevocable proxy to vote all or any part of the Pledged Collateral and to exercise all other rights, powers, privileges and remedies to which a holder of the Pledged Collateral would be entitled (including giving or withholding written consents of shareholders, partners or members, as the case may be, calling special meetings of shareholders, partners or members, as the case may be, and voting at such meetings), which proxy shall be effective, automatically and without the necessity of any action (including any transfer of any Pledged Collateral on the record books of the issuer thereof) by any other person (including the issuer of such Pledged Collateral or any officer or agent thereof) during the continuance of an Event of Default and which proxy shall only terminate upon the payment in full of the Secured Obligations (other than contingent indemnification obligations to the extent no claim giving rise thereto has been asserted).

 

(c)                                   Authorization of Issuers .  Each Grantor hereby expressly and irrevocably authorizes and instructs, without any further instructions from such Grantor, each issuer of any Pledged Collateral pledged hereunder by such Grantor to (i) comply with any instruction received by it from Agent in writing that states that an Event of Default is continuing and is otherwise in accordance with the terms of this Agreement and each Grantor agrees that such issuer shall be fully protected from Liabilities to such Grantor in so complying and (ii) unless otherwise expressly permitted hereby or the Credit Agreement, pay any dividend or make any other payment with respect to the Pledged Collateral directly to Agent.

 

6.4                                Proceeds to be Turned over to and Held by Agent .  Unless otherwise expressly provided in the Credit Agreement or this Agreement, all proceeds of any Collateral received by any Grantor hereunder in cash or Cash Equivalents shall be held by such Grantor in trust for Agent and the other Secured Parties, segregated from other funds of such Grantor, and shall, promptly upon receipt by any Grantor, be turned over to Agent in the exact form received (with any necessary endorsement).  All such proceeds of Collateral and any other proceeds of any Collateral received by Agent in cash or Cash Equivalents shall be held by Agent in a Cash Collateral Account.  All proceeds being held by Agent in a Cash Collateral Account (or by such Grantor in trust for Agent) shall continue to be held as collateral security for the Secured Obligations and shall not constitute payment thereof until applied as provided in the Credit Agreement.

 

6.5                                Sale of Pledged Collateral .

 

(a)                                  Each Grantor recognizes that Agent may be unable to effect a public sale of any Pledged Collateral by reason of certain prohibitions contained in the Securities Act and applicable state or foreign securities laws or otherwise or may

 

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determine that a public sale is impracticable, not desirable or not commercially reasonable and, accordingly, may resort to one or more private sales thereof to a restricted group of purchasers that shall be obliged to agree, among other things, to acquire such securities for their own account for investment and not with a view to the distribution or resale thereof.  Each Grantor acknowledges and agrees that any such private sale may result in prices and other terms less favorable than if such sale were a public sale and, notwithstanding such circumstances, agrees that any such private sale shall be deemed to have been made in a commercially reasonable manner.  Agent shall be under no obligation to delay a sale of any Pledged Collateral for the period of time necessary to permit the issuer thereof to register such securities for public sale under the Securities Act or under applicable state securities laws even if such issuer would agree to do so.

 

(b)                                  Each Grantor agrees to use its best efforts to do or cause to be done all such other acts as may be necessary to make such sale or sales of any portion of the Pledged Collateral pursuant to Section 6.1 and this Section 6.5 valid and binding and in compliance with all applicable Requirements of Law.  Each Grantor further agrees that a breach of any covenant contained herein will cause irreparable injury to Agent and other Secured Parties, that Agent and the other Secured Parties have no adequate remedy at law in respect of such breach and, as a consequence, that each and every covenant contained herein shall be specifically enforceable against such Grantor, and such Grantor hereby waives and agrees not to assert any defense against an action for specific performance of such covenants except for a defense that no Event of Default has occurred under the Credit Agreement.  Each Grantor waives any and all rights of contribution or subrogation upon the sale or disposition of all or any portion of the Pledged Collateral by Agent.

 

6.6                                Deficiency .  Each Grantor shall remain liable for any deficiency if the proceeds of any sale or other disposition of any Collateral are insufficient to pay the Secured Obligations and the fees and disbursements of any attorney employed by Agent or any other Secured Party to collect such deficiency.

 

ARTICLE VII

 

AGENT

 

7.1                                Agent’s Appointment as Attorney-in-Fact .

 

(a)                                  Each Grantor hereby irrevocably constitutes and appoints Agent and any Related Person thereof, with full power of substitution, as its true and lawful attorney-in-fact with full irrevocable power and authority in the place and stead of such Grantor and in the name of such Grantor or in its own name, for the purpose of carrying out the terms of the Loan Documents, to take any appropriate action and to execute any document or instrument that may be necessary or desirable to accomplish the purposes of the Loan Documents, and, without limiting the generality of the foregoing, each Grantor hereby gives Agent and its Related Persons the power and right, on behalf of such

 

23



 

Grantor, without notice to or assent by such Grantor, to do any of the following when an Event of Default shall be continuing:

 

(i)                                      in the name of such Grantor, in its own name or otherwise, take possession of and indorse and collect any check, draft, note, acceptance or other instrument for the payment of moneys due under any account or general intangible or with respect to any other Collateral and file any claim or take any other action or proceeding in any court of law or equity or otherwise deemed appropriate by Agent for the purpose of collecting any such moneys due under any account or general intangible or with respect to any other Collateral whenever payable;

 

(ii)                                   in the case of any Intellectual Property owned by or licensed to the Grantors, execute, deliver and have recorded any document that Agent may request to evidence, effect, publicize or record Agent’s security interest in such Intellectual Property and the goodwill and general intangibles of such Grantor relating thereto or represented thereby;

 

(iii)                                pay or discharge taxes and Liens levied or placed on or threatened against any Collateral, effect any repair or pay any insurance called for by the terms of the Credit Agreement (including all or any part of the premiums therefor and the costs thereof);

 

(iv)                               execute, in connection with any sale provided for in Section 6.1 or 6.5 , any document to effect or otherwise necessary or appropriate in relation to evidence the sale of any Collateral; or

 

(v)                                  (A) direct any party liable for any payment under any Collateral to make payment of any moneys due or to become due thereunder directly to Agent or as Agent shall direct, (B) ask or demand for, and collect and receive payment of and receipt for, any moneys, claims and other amounts due or to become due at any time in respect of or arising out of any Collateral, (C) sign and indorse any invoice, freight or express bill, bill of lading, storage or warehouse receipt, draft against debtors, assignment, verification, notice and other document in connection with any Collateral, (D) commence and prosecute any suit, action or proceeding at law or in equity in any court of competent jurisdiction to collect any Collateral and to enforce any other right in respect of any Collateral, (E) defend any actions, suits, proceedings, audits, claims, demands, orders or disputes brought against such Grantor with respect to any Collateral, (F) settle, compromise or adjust any such actions, suits, proceedings, audits, claims, demands, orders or disputes and, in connection therewith, give such discharges or releases as Agent may deem appropriate, (G) assign any Intellectual Property owned by the Grantors or any IP Licenses of the Grantors throughout the world on such terms and conditions and in such manner as Agent shall in its sole discretion determine, including the execution and filing of any document necessary to effectuate or record such assignment and (H) generally, sell, assign, convey, transfer or grant a Lien on, make any Contractual Obligation with respect to and otherwise deal with, any Collateral as fully and completely as though Agent were the absolute owner thereof for all purposes and do,

 

24



 

at Agent’s option, at any time or from time to time, all acts and things that Agent deems necessary to protect, preserve or realize upon any Collateral and the Secured Parties’ security interests therein and to effect the intent of the Loan Documents, all as fully and effectively as such Grantor might do.

 

(vi)                               If any Grantor fails to perform or comply with any Contractual Obligation contained herein, Agent, at its option, but without any obligation so to do, may perform or comply, or otherwise cause performance or compliance, with such Contractual Obligation.

 

(b)                                  The expenses of Agent incurred in connection with actions undertaken as provided in this Section 7.1 , together with interest thereon at a rate set forth in Section 1.3(c)  of the Credit Agreement, from the date of payment by Agent to the date reimbursed by the relevant Grantor, shall be payable by such Grantor to Agent on demand.

 

(c)                                   Each Grantor hereby ratifies all that said attorneys shall lawfully do or cause to be done by virtue of this Section 7.1 .  All powers, authorizations and agencies contained in this Agreement are coupled with an interest and are irrevocable until this Agreement is terminated and the security interests created hereby are released.

 

7.2                                Authorization to File Financing Statements .  Each Grantor authorizes Agent and its Related Persons, at any time and from time to time, to file or record financing statements, amendments thereto, and other filing or recording documents or instruments with respect to any Collateral in such form and in such offices as Agent reasonably determines appropriate to perfect the security interests of Agent under this Agreement, and such financing statements and amendments may described the Collateral covered thereby as “ all assets of the debtor ”.  A photographic or other reproduction of this Agreement shall be sufficient as a financing statement or other filing or recording document or instrument for filing or recording in any jurisdiction.  Such Grantor also hereby ratifies its authorization for Agent to have filed any initial financing statement or amendment thereto under the UCC (or other similar laws) in effect in any jurisdiction if filed prior to the date hereof.

 

7.3                                Authority of Agent .  Each Grantor acknowledges that the rights and responsibilities of Agent under this Agreement with respect to any action taken by Agent or the exercise or non-exercise by Agent of any option, voting right, request, judgment or other right or remedy provided for herein or resulting or arising out of this Agreement shall, as between Agent and the other Secured Parties, be governed by the Credit Agreement and by such other agreements with respect thereto as may exist from time to time among them, but, as between Agent and the Grantors, Agent shall be conclusively presumed to be acting as agent for the Secured Parties with full and valid authority so to act or refrain from acting, and no Grantor shall be under any obligation or entitlement to make any inquiry respecting such authority.

 

25



 

7.4                                Duty; Obligations and Liabilities .

 

(a)                                  Duty of Agent .  Agent’s sole duty with respect to the custody, safekeeping and physical preservation of the Collateral in its possession shall be to deal with it in the same manner as Agent deals with similar property for its own account.  The powers conferred on Agent hereunder are solely to protect Agent’s interest in the Collateral and shall not impose any duty upon Agent to exercise any such powers.  Agent shall be accountable only for amounts that it receives as a result of the exercise of such powers, and neither it nor any of its Related Persons shall be responsible to any Grantor for any act or failure to act hereunder, except for their own gross negligence or willful misconduct as finally determined by a court of competent jurisdiction.  In addition, Agent shall not be liable or responsible for any loss or damage to any Collateral, or for any diminution in the value thereof, by reason of the act or omission of any warehousemen, carrier, forwarding agency, consignee or other bailee if such Person has been selected by Agent in good faith.

 

(b)                                  Obligations and Liabilities with respect to Collateral .  No Secured Party and no Related Person thereof shall be liable for failure to demand, collect or realize upon any Collateral or for any delay in doing so or shall be under any obligation to sell or otherwise dispose of any Collateral upon the request of any Grantor or any other Person or to take any other action whatsoever with regard to any Collateral.  The powers conferred on Agent hereunder shall not impose any duty upon any other Secured Party to exercise any such powers.  The other Secured Parties shall be accountable only for amounts that they actually receive as a result of the exercise of such powers, and neither they nor any of their respective officers, directors, employees or agents shall be responsible to any Grantor for any act or failure to act hereunder, except for their own gross negligence or willful misconduct as finally determined by a court of competent jurisdiction.

 

ARTICLE VIII

 

MISCELLANEOUS

 

8.1                                Reinstatement .  Each Grantor agrees that, if any payment made by any Credit Party or other Person and applied to the Secured Obligations is at any time annulled, avoided, set aside, rescinded, invalidated, declared to be fraudulent or preferential or otherwise required to be refunded or repaid, or the proceeds of any Collateral are required to be returned by any Secured Party to such Credit Party, its estate, trustee, receiver or any other party, including any Grantor, under any bankruptcy law, state or federal law, common law or equitable cause, then, to the extent of such payment or repayment, any Lien or other Collateral securing such liability shall be and remain in full force and effect, as fully as if such payment had never been made.  If, prior to any of the foregoing, (a) any Lien or other Collateral securing such Grantor’s liability hereunder shall have been released or terminated by virtue of the foregoing or (b) any provision of the Guaranty hereunder shall have been terminated, cancelled or surrendered, such Lien, other Collateral or provision shall be reinstated in full force and effect and such prior release, termination, cancellation or surrender shall not diminish, release, discharge, impair or otherwise affect the obligations of any such Grantor in

 

26


 

respect of any Lien or other Collateral securing such obligation or the amount of such payment.

 

8.2          Release of Collateral .

 

(a)           At the time provided in Section 8.10(b)(iii)  of the Credit Agreement, the Collateral shall be released from the Lien created hereby and this Agreement and all obligations (other than those expressly stated to survive such termination) of Agent and each Grantor hereunder shall terminate, all without delivery of any instrument or performance of any act by any party, and all rights to the Collateral shall revert to the Grantors.  Each Grantor is hereby authorized to file UCC amendments at such time evidencing the termination of the Liens so released.  At the request of any Grantor following any such termination, Agent shall deliver to such Grantor any Collateral of such Grantor held by Agent hereunder and execute and deliver to such Grantor such documents as such Grantor shall reasonably request to evidence such termination.

 

(b)           If Agent shall be directed or permitted pursuant to Section 8.10(b)  of the Credit Agreement to release any Lien or any Collateral, such Collateral shall be released from the Lien created hereby to the extent provided under, and subject to the terms and conditions set forth in, Section 8.10(b) .  In connection therewith, Agent, at the request of any Grantor, shall execute and deliver to such Grantor such documents as such Grantor shall reasonably request to evidence such release.

 

(c)           At the time provided in Section 8.10(b)  of the Credit Agreement and at the request of the Borrower, a Grantor shall be released from its obligations hereunder in the event that all the Stock and Stock Equivalents of such Grantor shall be sold to any Person that is not an Affiliate of the Borrower or the Subsidiaries of the Borrower in a transaction permitted by the Loan Documents.

 

8.3          Independent Obligations .   The obligations of each Grantor hereunder are independent of and separate from the Secured Obligations and the Guaranteed Obligations.  If any Secured Obligation or Guaranteed Obligation is not paid when due, or upon any Event of Default, Agent may, at its sole election, proceed directly and at once, without notice, against any Grantor and any Collateral to collect and recover the full amount of any Secured Obligation or Guaranteed Obligation then due, without first proceeding against any other Grantor, any other Credit Party or any other Collateral and without first joining any other Grantor or any other Credit Party in any proceeding.

 

8.4          No Waiver by Course of Conduct .  No Secured Party shall by any act (except by a written instrument pursuant to Section 8.5 ), delay, indulgence, omission or otherwise be deemed to have waived any right or remedy hereunder or to have acquiesced in any Default or Event of Default.  No failure to exercise, nor any delay in exercising, on the part of any Secured Party, any right, power or privilege hereunder shall operate as a waiver thereof.  No single or partial exercise of any right, power or privilege hereunder shall preclude any other or further exercise thereof or the exercise of any other

 

27



 

right, power or privilege.  A waiver by any Secured Party of any right or remedy hereunder on any one occasion shall not be construed as a bar to any right or remedy that such Secured Party would otherwise have on any future occasion.

 

8.5          Amendments in Writing .  None of the terms or provisions of this Agreement may be waived, amended, supplemented or otherwise modified except in accordance with Section 9.1 of the Credit Agreement; provided , however , that annexes to this Agreement may be supplemented (but no existing provisions may be modified and no Collateral may be released) through Pledge Amendments and Joinder Agreements, in substantially the form of Annex 1 and Annex 2, respectively, in each case duly executed by Agent and each Grantor directly affected thereby.

 

8.6          Additional Grantors; Additional Pledged Collateral Joinder Agreements .  If, at the option of the Borrower or as required pursuant to Section 4.13 of the Credit Agreement, the Borrower shall cause any Subsidiary that is not a Grantor to become a Grantor hereunder, such Subsidiary shall execute and deliver to Agent a Joinder Agreement substantially in the form of Annex 2 and shall thereafter for all purposes be a party hereto and have the same rights, benefits and obligations as a Grantor party hereto on the Closing Date.

 

(b)           Pledge Amendments .  To the extent any Pledged Collateral has not been delivered as of the Closing Date or upon obtaining additional Stock or Indebtedness required to be pledged to Agent pursuant to this Agreement, such Grantor shall deliver a pledge amendment duly executed by the Grantor in substantially the form of Annex 1 (each, a “ Pledge Amendment ”), in respect of any such Stock or Indebtedness pursuant to which such Grantor shall pledge to Agent, for the benefit of Agent and Lenders, all of such additional Stock or Indebtedness.  Such Grantor authorizes Agent to attach each Pledge Amendment to this Agreement.

 

8.7          Notices .  All notices, requests and demands to or upon Agent or any Grantor hereunder shall be effected in the manner provided for in Section 9.2 of the Credit Agreement; provided , however , that any such notice, request or demand to or upon any Grantor shall be addressed to the Borrower’s notice address set forth in Section 9.2 .

 

8.8          Successors and Assigns .  This Agreement shall be binding upon the successors and assigns of each Grantor and shall inure to the benefit of each Secured Party and their successors and assigns; provided , however , that no Grantor may assign, transfer or delegate any of its rights or obligations under this Agreement without the prior written consent of Agent.

 

8.9          Counterparts .  This Agreement may be executed in any number of counterparts and by different parties in separate counterparts, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute one and the same agreement.  Signature pages may be detached from multiple separate counterparts and attached to a single counterpart.  Delivery of an executed signature page

 

28



 

of this Agreement by facsimile transmission or by Electronic Transmission shall be as effective as delivery of a manually executed counterpart hereof.

 

8.10        Severability .  Any provision of this Agreement being held illegal, invalid or unenforceable in any jurisdiction shall not affect any part of such provision not held illegal, invalid or unenforceable, any other provision of this Agreement or any part of such provision in any other jurisdiction.

 

8.11        Governing Law .   This Agreement and the rights and obligations of the parties hereto shall be governed by, and construed and interpreted in accordance with, the law of the State of New York .

 

8.12        Waiver of Jury Trial .  EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES TRIAL BY JURY IN ANY SUIT, ACTION OR PROCEEDING WITH RESPECT TO, OR DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH, ANY LOAN DOCUMENT OR THE TRANSACTIONS CONTEMPLATED THEREIN OR RELATED THERETO (WHETHER FOUNDED IN CONTRACT, TORT OR ANY OTHER THEORY).  EACH PARTY HERETO (A) CERTIFIES THAT NO OTHER PARTY AND NO RELATED PERSON OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 8.12.

 

EACH GRANTOR AGREES TO BE BOUND BY THE PROVISIONS OF SECTIONS 9.18(b)  AND 9.18(c)  OF THE CREDIT AGREEMENT.

 

[Signature Pages Follow]

 

29



 

IN WITNESS WHEREOF, each of the undersigned has caused this Amended and Restated Guaranty and Security Agreement to be duly executed and delivered as of the date first above written.

 

 

GRANTORS:

 

 

 

DIPLOMAT PHARMACY, INC.

 

 

 

 

 

 

 

By:

/s/ Philip R. Hagerman

 

 

Name: Philip R. Hagerman

 

 

Title: President

 

 

 

 

 

 

 

NAVIGATOR HEALTH SERVICES, LLC

 

 

 

 

By:

Diplomat Pharmacy, Inc., its sole Member

 

 

 

 

 

 

 

 

By:

/s/ Philip R. Hagerman

 

 

Name:

Philip R. Hagerman

 

 

Title:

President

 

 

 

 

 

 

 

DIPLOMAT HEALTH SERVICES, LLC

 

 

 

 

By:

Diplomat Pharmacy, Inc., its sole Member

 

 

 

 

 

 

 

 

By:

/s/ Philip R. Hagerman

 

 

Name:

Philip R. Hagerman

 

 

Title:

President

 

 

 

 

 

 

 

DIPLOMAT SPECIALTY PHARMACY OF FLINT, LLC

 

 

 

 

By:

Diplomat Pharmacy, Inc., its sole Member

 

 

 

 

 

 

 

 

By:

/s/ Philip R. Hagerman

 

 

Name:

Philip R. Hagerman

 

 

Title:

President

 

[SIGNATURE PAGE TO AMENDED AND RESTATED GUARANTY AND SECURITY AGREEMENT]

 



 

 

DIPLOMAT SPECIALTY PHARMACY OF GRAND RAPIDS, LLC

 

 

 

 

By:

Diplomat Pharmacy, Inc., its sole Member

 

 

 

 

 

 

 

 

By:

/s/ Philip R. Hagerman

 

 

Name:

Philip R. Hagerman

 

 

Title:

President

 

 

 

 

 

 

 

 

 

DIPLOMAT SPECIALTY PHARMACY OF CHICAGO, LLC

 

 

 

 

By:

Diplomat Pharmacy, Inc., its sole Member

 

 

 

 

 

 

 

 

By:

/s/ Philip R. Hagerman

 

 

Name:

Philip R. Hagerman

 

 

Title:

President

 

 

 

 

 

 

 

 

 

DIPLOMAT SPECIALTY PHARMACY OF FT. LAUDERDALE, LLC

 

 

 

 

By:

Diplomat Pharmacy, Inc., its sole Member

 

 

 

 

 

 

 

 

By:

/s/ Philip R. Hagerman

 

 

Name:

Philip R. Hagerman

 

 

Title:

President

 

 

 

 

 

 

 

 

 

DIPLOMAT SPECIALTY PHARMACY OF SOUTHERN CALIFORNIA, LLC

 

 

 

 

By:

Diplomat Pharmacy, Inc., its sole Member

 

 

 

 

 

 

 

 

By:

/s/ Philip R. Hagerman

 

 

Name:

Philip R. Hagerman

 

 

Title:

President

 

[SIGNATURE PAGE TO AMENDED AND RESTATED GUARANTY AND SECURITY AGREEMENT]

 



 

 

DIPLOMAT SPECIALTY PHARMACY GREAT LAKES DISTRIBUTION CENTER, LLC

 

 

 

 

By:

Diplomat Pharmacy, Inc., its sole Member

 

 

 

 

 

 

 

 

By:

/s/ Philip R. Hagerman

 

 

Name:

Philip R. Hagerman

 

 

Title:

President

r

 

 

 

 

 

 

 

 

DIPLOMAT CORPORATE PROPERTIES, LLC

 

 

 

 

By:

Diplomat Pharmacy, Inc., its sole Member

 

 

 

 

 

 

 

 

By:

/s/ Philip R. Hagerman

 

 

Name:

Philip R. Hagerman

 

 

Title:

President

 

 

 

 

 

 

 

 

 

DSP FLINT REAL ESTATE, LLC

 

 

 

 

 

 

 

By:

/s/ Philip R. Hagerman

 

 

Name: Philip R. Hagerman

 

 

Title: Manager

 

 

 

 

 

 

 

DSP-BUILDING C, LLC

 

 

 

 

 

 

 

By:

/s/ Philip R. Hagerman

 

 

Name: Philip R. Hagerman

 

 

Title: Manager

 

 

 

 

 

 

 

DIPLOMAT INFUSION SERVICES, LLC

 

 

 

 

 

 

 

By:

/s/ Philip R. Hagerman

 

 

Name: Philip R. Hagerman

 

 

Title: Manager

 

[SIGNATURE PAGE TO AMENDED AND RESTATED GUARANTY AND SECURITY AGREEMENT]

 



 

 

DIPLOMAT HOLDING, LLC

 

 

 

 

 

 

 

By:

/s/ Philip R. Hagerman

 

 

Name: Philip R. Hagerman

 

 

Title: Manager

 

 

 

 

 

 

 

DIPLOMAT HEALTH MANAGEMENT, LLC

 

 

 

 

 

 

 

By:

/s/ Philip R. Hagerman

 

 

Name: Philip R. Hagerman

 

 

Title: Manager

 

 

 

 

 

 

 

ENVOY HEALTH MANAGEMENT, LLC

 

 

 

 

 

 

 

By:

/s/ Jeff Rowe

 

 

Name: Jeff Rowe

 

 

Title: Manager

 

 

 

 

 

 

 

AMBASSADOR COMPOUNDING, LLC

 

 

 

 

 

 

 

By:

/s/ Jeff Rowe

 

 

Name: Jeff Rowe

 

 

Title: Manager

 

 

 

 

 

 

 

AMERICAN HOMECARE FEDERATION, INC.

 

 

 

 

 

 

 

By:

/s/ Jeff Rowe

 

 

Name: Jeff Rowe

 

 

Title: President

 

[SIGNATURE PAGE TO AMENDED AND RESTATED GUARANTY AND SECURITY AGREEMENT]

 



 

ACCEPTED AND AGREED

 

As of the date first above written:

 

 

 

GENERAL ELECTRIC CAPITAL CORPORATION, as Agent

 

 

 

 

 

By:

/s/ Jason Dufour

 

 

Name: Jason Dufour

 

 

Title: Duly Authorized Signatory

 

 

[SIGNATURE PAGE TO AMENDED AND RESTATED GUARANTY AND SECURITY AGREEMENT]

 



 

ANNEX 1

 

TO

 

GUARANTY AND SECURITY AGREEMENT(1)

 

FORM OF PLEDGE AMENDMENT

 

This Pledge Amendment, dated as of                 , 20    , is delivered pursuant to Section 8.6 of the Amended and Restated Guaranty and Security Agreement, dated as of June     , 2014, by Diplomat Pharmacy, Inc., a Michigan corporation (the “ Borrower ”), the undersigned Grantor and the other Persons from time to time party thereto as Grantors in favor of General Electric Capital Corporation, as Agent for the Secured Parties referred to therein (s such agreement may be amended, restated, supplemented or otherwise modified from time to time, the “ Guaranty and Security Agreement ”).  Capitalized terms used herein without definition are used as defined in the Guaranty and Security Agreement.

 

The undersigned hereby agrees that this Pledge Amendment may be attached to the Guaranty and Security Agreement and that the Pledged Collateral listed on Annex 1-A to this Pledge Amendment shall be and become part of the Collateral referred to in the Guaranty and Security Agreement and shall secure all Obligations of the undersigned.

 

The undersigned hereby represents and warrants that each of the representations and warranties contained in Sections 4.1 , 4.2 , 4.3 and 4.8 of the Guaranty and Security Agreement is true and correct and as of the date hereof as if made on and as of such date.

 

 

[GRANTOR]

 

 

 

 

 

 

 

 

 

 

 

By:

 

 

 

Name:

 

 

Title:

 


To be used for pledge of Additional Pledged Collateral by existing Grantor.

 

A1-1


 

Annex 1-A

 

PLEDGED STOCK

 

ISSUER

 

CLASS

 

CERTIFICATE 
NO(S).

 

PAR VALUE

 

NUMBER OF 
SHARES, 
UNITS OR 
INTERESTS

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

PLEDGED DEBT INSTRUMENTS

 

ISSUER

 

DESCRIPTION OF 
DEBT

 

CERTIFICATE 
NO(S).

 

FINAL 
MATURITY

 

PRINCIPAL 
AMOUNT

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

A1-2



 

ACCEPTED AND AGREED

 

as of the date first above written:

 

 

 

GENERAL ELECTRIC CAPITAL CORPORATION, as Agent

 

 

 

 

 

 

 

By:

 

 

 

Name:

 

 

Title:

 

 

A1-3



 

ANNEX 2

 

TO
GUARANTY AND SECURITY AGREEMENT

 

FORM OF JOINDER AGREEMENT

 

This JOINDER AGREEMENT, dated as of                     , 20        , is delivered pursuant to Section 8.6 of the Guaranty and Security Agreement, dated as of June      , 2014, by Diplomat Pharmacy, Inc., a Michigan corporation (the “ Borrower ”) and the other Persons from time to time party thereto as Grantors in favor of the General Electric Capital Corporation, as Agent  for the Secured Parties referred to therein (as such agreement may be amended, restated, supplemented or otherwise modified from time to time, the “ Guaranty and Security Agreement ”).  Capitalized terms used herein without definition are used as defined in the Guaranty and Security Agreement.

 

By executing and delivering this Joinder Agreement, the undersigned, as provided in Section 8.6 of the Guaranty and Security Agreement, hereby becomes a party to the Guaranty and Security Agreement as a Grantor and a Guarantor thereunder with the same force and effect as if originally named as a Grantor and a Guarantor therein and, without limiting the generality of the foregoing, as collateral security for the prompt and complete payment and performance when due (whether at stated maturity, by acceleration or otherwise) of the Secured Obligations of the undersigned, hereby mortgages, pledges and hypothecates to Agent for the benefit of the Secured Parties, and grants to Agent for the benefit of the Secured Parties a lien on and security interest in, all of its right, title and interest in, to and under the Collateral of the undersigned and expressly assumes all obligations and liabilities of a Grantor thereunder.  The undersigned hereby agrees to be bound as a Grantor and a Guarantor for the purposes of the Guaranty and Security Agreement.

 

The information set forth in Annex 1-A is hereby added to the information set forth in Schedules 1 , 2 , 3 to the Guaranty and Security Agreement and Schedules 3.9 , 3.16 , 3.20 , 3.21 and 3.22 to the Credit Agreement.  By acknowledging and agreeing to this Joinder Agreement, the undersigned hereby agree that this Joinder Agreement may be attached to the Guaranty and Security Agreement and that the Pledged Collateral listed on Annex 1-A to this Joinder Amendment shall be and become part of the Collateral referred to in the Guaranty and Security Agreement and shall secure all Secured Obligations of the undersigned.

 

The undersigned hereby represents and warrants that each of the representations and warranties contained in Article IV of the Guaranty and Security Agreement applicable to it is true and correct on and as the date hereof as if made on and as of such date.

 

A2-1



 

IN WITNESS WHEREOF, THE UNDERSIGNED HAS CAUSED THIS JOINDER AGREEMENT TO BE DULY EXECUTED AND DELIVERED AS OF THE DATE FIRST ABOVE WRITTEN.

 

 

[Additional Grantor]

 

 

 

 

 

 

 

 

 

 

By:

 

 

 

Name:

 

 

Title:

 

A2-2



 

ACCEPTED AND AGREED

 

as of the date first above written:

 

 

 

[EACH GRANTOR PLEDGING ADDITIONAL COLLATERAL

 

 

 

 

 

By:

 

 

 

Name:

 

 

Title:

 

 

 

 

 

GENERAL ELECTRIC CAPITAL CORPORATION, as Agent

 

 

 

 

 

By:

 

 

 

Name:

 

 

Title:

 

 

A2-3



 

ANNEX 3
TO
GUARANTY AND SECURITY AGREEMENT

 

FORM OF INTELLECTUAL PROPERTY SECURITY AGREEMENT(1)

 

THIS [COPYRIGHT] [PATENT] [TRADEMARK] SECURITY AGREEMENT, dated as of                       , 20    , is made by each of the entities listed on the signature pages hereof (each a “ Grantor ” and, collectively, the “ Grantors ”), in favor of General Electric Capital Corporation (“ GE Capital ”), as administrative agent (in such capacity, together with its successors and permitted assigns, “ Agent ”) for the Secured Parties (as defined in the Credit Agreement referred to below).

 

W I T N E S S E T H:

 

WHEREAS, pursuant to the Amended and Restated Credit Agreement, dated as of June      , 2014 (as the same may be amended, restated, supplemented or otherwise modified from time to time, the “ Credit Agreement ”), by and among the Borrower, the other Credit Parties, the Lenders and the L/C Issuers from time to time party thereto and GE Capital, as Agent, the Lenders and the L/C Issuers have severally agreed to make extensions of credit to the Borrower upon the terms and subject to the conditions set forth therein;

 

WHEREAS, each Grantor has agreed, pursuant to an Amended and Restated Guaranty and Security Agreement of June     , 2014 in favor of Agent (as such agreement may be amended, restated, supplemented or otherwise modified from time to time, the “ Guaranty and Security Agreement ”), to guarantee the Obligations (as defined in the Credit Agreement) of the Borrower; and

 

WHEREAS, all of the Grantors are party to the Guaranty and Security Agreement pursuant to which the Grantors are required to execute and deliver this [Copyright] [Patent] [Trademark] Security Agreement;

 

NOW, THEREFORE, in consideration of the premises and to induce the Lenders, the L/C Issuers and Agent to enter into the Credit Agreement and to induce the Lenders and the L/C Issuers to make their respective extensions of credit to the Borrower thereunder, each Grantor hereby agrees with Agent as follows:

 

Section 1.                                            Defined Terms .  Capitalized terms used herein without definition are used as defined in the Guaranty and Security Agreement.

 

Section 2.                                            Grant of Security Interest in [Copyright] [Trademark] [Patent] Collateral .  Each Grantor, as collateral security for the prompt and complete payment and

 


(1)  Separate agreements should be executed relating to each Grantor’s respective Copyrights, Patents, and Trademarks.

 

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performance when due (whether at stated maturity, by acceleration or otherwise) of the Secured Obligations of such Grantor, hereby mortgages, pledges and hypothecates to Agent for the benefit of the Secured Parties, and grants to Agent for the benefit of the Secured Parties a Lien on and security interest in, all of its right, title and interest in, to and under the following Collateral of such Grantor (the “ [Copyright] [Patent] [Trademark] Collateral ”):

 

(a)                                  [all of its Copyrights and all IP Licenses providing for the grant by or to such Grantor of any right under any Copyright, including, without limitation, those referred to on Schedule 1 hereto;

 

(b)                                  all renewals, reversions and extensions of the foregoing; and

 

(c)                                   all income, royalties, proceeds and Liabilities at any time due or payable or asserted under and with respect to any of the foregoing, including, without limitation, all rights to sue and recover at law or in equity for any past, present and future infringement, misappropriation, dilution, violation or other impairment thereof.]

 

or

 

(d)                                  [all of its Patents and all IP Licenses providing for the grant by or to such Grantor of any right under any Patent, including, without limitation, those referred to on Schedule 1 hereto;

 

(e)                                   all reissues, reexaminations, continuations, continuations-in-part, divisionals, renewals and extensions of the foregoing; and

 

(f)                                    all income, royalties, proceeds and Liabilities at any time due or payable or asserted under and with respect to any of the foregoing, including, without limitation, all rights to sue and recover at law or in equity for any past, present and future infringement, misappropriation, dilution, violation or other impairment thereof.]

 

or

 

(g)                                   [all of its Trademarks and all IP Licenses providing for the grant by or to such Grantor of any right under any Trademark, including, without limitation, those referred to on Schedule 1 hereto;

 

(h)                                  all renewals and extensions of the foregoing;

 

(i)                                      all goodwill of the business connected with the use of, and symbolized by, each such Trademark; and

 

(j)                                     all income, royalties, proceeds and Liabilities at any time due or payable or asserted under and with respect to any of the foregoing, including, without limitation, all rights to sue and recover at law or in equity for any past, present and future infringement, misappropriation, dilution, violation or other impairment thereof.]

 

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Section 3.                                            Guaranty and Security Agreement .  The security interest granted pursuant to this [Copyright] [Patent] [Trademark] Security Agreement is granted in conjunction with the security interest granted to Agent pursuant to the Guaranty and Security Agreement and each Grantor hereby acknowledges and agrees that the rights and remedies of Agent with respect to the security interest in the [Copyright] [Patent] [Trademark] Collateral made and granted hereby are more fully set forth in the Guaranty and Security Agreement, the terms and provisions of which are incorporated by reference herein as if fully set forth herein.

 

Section 4.                                            Grantor Remains Liable Each Grantor hereby agrees that, anything herein to the contrary notwithstanding, such Grantor shall assume full and complete responsibility for the prosecution, defense, enforcement or any other necessary or desirable actions in connection with their [Copyrights] [Patents] [Trademarks] and IP Licenses subject to a security interest hereunder.

 

Section 5.                                            Counterparts .  This [Copyright] [Patent] [Trademark] Security Agreement may be executed in any number of counterparts and by different parties in separate counterparts, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute one and the same agreement.  Signature pages may be detached from multiple separate counterparts and attached to a single counterpart.

 

Section 6.                                            Governing Law .  This [Copyright] [Patent] [Trademark] Security Agreement and the rights and obligations of the parties hereto shall be governed by, and construed and interpreted in accordance with, the law of the State of New York .

 

[SIGNATURE PAGES FOLLOW]

 

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IN WITNESS WHEREOF, each Grantor has caused this [Copyright] [Patent] [Trademark] Security Agreement to be executed and delivered by its duly authorized officer as of the date first set forth above.

 

 

Very truly yours,

 

 

 

 

 

[GRANTOR]

 

 

as Grantor

 

 

 

 

 

 

 

 

By:

 

 

 

 

Name:

 

 

 

Title:

 

 

 

ACCEPTED AND AGREED

 

as of the date first above written:

 

 

 

GENERAL ELECTRIC CAPITAL CORPORATION, as Agent

 

 

 

 

 

By:

 

 

 

Name:

 

 

Title:

 

 

[SIGNATURE PAGE TO [COPYRIGHT] [PATENT] [TRADEMARK] SECURITY AGREEMENT]

 

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ACKNOWLEDGMENT OF GRANTOR

 

State of

)

 

 

)

ss.

County of

)

 

 

On this                 day of                           , 20       before me personally appeared                                   , proved to me on the basis of satisfactory evidence to be the person who executed the foregoing instrument on behalf of                            , who being by me duly sworn did depose and say that he is an authorized officer of said corporation, that the said instrument was signed on behalf of said corporation as authorized by its Board of Directors and that he acknowledged said instrument to be the free act and deed of said corporation.

 

 

 

 

Notary Public

 

[ACKNOWLEDGEMENT OF GRANTOR FOR [COPYRIGHT] [PATENT] [TRADEMARK] SECURITY AGREEMENT]

 

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SCHEDULE I
TO
[COPYRIGHT] [PATENT] [TRADEMARK] SECURITY AGREEMENT

 

[Copyright] [Patent] [Trademark] Registrations

 

1.                                       REGISTERED [COPYRIGHTS] [PATENTS] [TRADEMARKS]

 

[Include Registration Number and Date]

 

2.                                       [COPYRIGHT] [PATENT] [TRADEMARK] APPLICATIONS

 

[Include Application Number and Date]

 

3.                                       IP LICENSES

 

[Include complete legal description of agreement (name of agreement, parties and date)]

 




Exhibit 10.4

 

DIPLOMAT PHARMACY, INC.

2007 STOCK OPTION PLAN

 

1.                                       Plan Purpose .  The purpose of this Plan is to promote the long-term interests of the Company and its shareholders by providing a means for attracting and retaining Employees who provide services to the Company.

 

2.                                       Definitions .  The following definitions are applicable to this Plan:

 

Award ” means the grant by the Board of an Incentive Stock Option, a Nonqualified Stock Option or any combination of the foregoing pursuant to the terms of this Plan.

 

Award Agreement ” means the written agreement setting forth the terms and provisions applicable to an Award.

 

Board ” means the Board of Directors of the Company.

 

Cause ” means, with respect to any Participant:  (i) the conviction of, or admission of guilt or plea of no contest by, the Participant in a criminal proceeding with respect to any crime, whether or not involving the Company, which constitutes a felony in the jurisdiction involved; (ii) the embezzlement or misappropriation of property of the Company or any of its affiliates, or any other act involving fraud or dishonesty with respect to the Company or any of its affiliates; (iii) habitual alcohol or substance abuse; (iv) any material breach by the Participant of his or her employment agreement or other contract relating to the provisions of services, if any, with the Company or any of its affiliates; or (v) any breach by the Participant of his or her statutory, common law or contractual duties not to compete with the Company or any of its affiliates or not to disclose or reveal confidential information or trade secrets of the Company or any of its affiliates.

 

Change of Control ” means, with respect to the Company, any of the following events:  (i) the acquisition, directly or indirectly, by any person (which term encompasses both individuals and entities) or group of two or more persons acting in concert (in either case, an “Acquiring Person”), other than a person or group that controls the Company as of the date this Plan was adopted or any fiduciary holding securities under an employee benefit plan of the Company, of securities of the Company that, in combination with any other Company securities owned, directly or indirectly, by the Acquiring Person, entitle the Acquiring Person to exercise or direct the exercise of a majority of the voting power, under ordinary circumstances, in the election of the Company’s Directors (all securities of any class or series of the Company with voting power in the election of its Directors shall be referred to as “Voting Stock”); (ii) a merger, share exchange, reorganization, consolidation or similar transaction involving the Company that results in the aggregate holders of Shares immediately prior to such transaction not, immediately after such transaction, holding Shares in the Company or securities of the surviving or acquiring entity entitling such aggregate holders of Shares immediately prior to such transaction to exercise or direct the exercise of a majority of the voting power, under ordinary circumstances, in the election of the Company’s (or the surviving or acquiring entity’s) directors; (iii) the sale or disposition of all or substantially all of the Company’s assets to an acquiring entity whose securities with a majority of the voting power in the election of directors are not held by holders of Shares immediately prior to such transaction, or (iv) the shareholders of the Company approve a plan of complete liquidation or dissolution of the Company.  For purposes of this definition, a

 



 

person or group shall be deemed to “ control ” the Company as of the date this Plan was adopted if it owned, as of such date, directly or indirectly, Voting Stock of the Company sufficient to entitle it to exercise or direct the exercise of a majority of the voting power, under ordinary circumstances, in the election of the Company’s directors.

 

Code ” means the Internal Revenue Code of 1986, as amended, and interpretive rules and regulations thereunder.

 

Company ” means Diplomat Pharmacy, Inc., d/b/a Diplomat Specialty Pharmacy, a Michigan corporation.

 

Date of Grant ” means the date on which an Award is granted, as determined by the Board.

 

Director ” means any individual who is a member of the Board, whether or not such individual is also an Employee.

 

Disability ” means total and permanent disability as determined by the Board pursuant to Section 22(e)(3) of the Code.

 

Employee ” means any person who is an employee of the Company as determined pursuant to the Code.

 

Exercise Price ” means the price per Share at which the Shares subject to an Option may be purchased upon exercise of the Option (which shall never be less than Fair Market Value on the Date of Grant).

 

Fair Market Value ” means, with respect to a Share as of any date, the fair market value of one Share, as determined by the Board in good faith by the reasonable application of a reasonable valuation method which meets the standards set forth in Section 409A of the Code or Section 422 of the Code, as applicable.

 

Incentive Stock ” means any Shares acquired pursuant to the exercise of an Incentive Stock Option.

 

Incentive Stock Option ” means an Option to purchase Shares that is subject to the limitations and restrictions of Section 10 hereof and is intended to qualify as an “incentive stock option” under Section 422 of the Code.

 

Nonqualified Stock Option ” means an Option to purchase Shares that does not qualify as an Incentive Stock Option under Section 422 of the Code.

 

Option ” means an Incentive Stock Option or a Nonqualified Stock Option granted under this Plan.

 

Participant ” means an Employee, Director or consultant selected by the Board to receive an Award.

 

Plan ” means this 2007 Stock Option Plan, as amended from time to time.

 

Prime Rate ” means the Federal Reserve Bank of Chicago Prime Rate as published in The Wall Street Journal from time to time; provided , that if The Wall Street Journal ceases publication of such or if such rate is otherwise not publicly available, the Prime Rate shall be the rate of interest publicly announced from time to time by a major commercial bank located in Grand Rapids, Michigan and selected by the Board, as its prime rate.

 

Shares ” means shares of the Company’s common stock, without par value.

 

2



 

Termination Date ” means, with respect to any Participant, the date of such Participant’s Termination of Service.

 

Termination of Service ” means, in the case of an Employee, the termination of the employment relationship between the Employee and the Company, in the case of a Director the termination of the Director’s service on the Board, and in the case of a consultant the termination of the consultant’s consulting relationship with the Company; provided , however , that if a Participant’s relationship with the Company changes but, after the change, the Participant continues to be an Employee, Director or consultant, then no Termination of Service shall be deemed to have occurred by reason of such change.

 

3.                                       Administration .

 

(a)                                  Board .  This Plan shall be administered by the Board of Directors.

 

(b)                                  Board Authority .  Except as expressly limited by this Plan, the Board shall have all powers and discretion necessary or appropriate to administer this Plan and control its operation, including, but not limited to, the power to (i) select Participants, grant Awards and provide the terms and conditions of all Awards (which need not be identical among Participants), (ii) interpret this Plan and Awards, and (iii) adopt rules and procedures for the administration, interpretation and operation of this Plan.  In particular, the Board shall have the power to prescribe the following terms and conditions with regard to the grant of any Option:  (1) whether the Option is an Incentive Stock Option or a Nonqualified Stock Option, (2) the Exercise Price of the Option (which shall never be less than Fair Market Value on the Date of Grant), (3) the number of Shares subject to the Option, (4) the vesting schedule of the Option, if any, (5) the manner in which the Option is to be exercised, (6) the expiration date of the Option, if other than as provided in this Plan, (7) the transfer restrictions, if any, applicable to the Shares acquired upon exercise of the Option, (8) whether, as a condition of granting the Option, the Participant is required to surrender for cancellation any Options previously granted to him or her, (9) whether the Participant shall be allowed to pay the Exercise Price in a form other than cash, as contemplated by Section 9(c) of this Plan, and (10) any other terms and conditions applicable to the Option which the Board determines to be appropriate in its sole discretion.  Subject to any limitations on the Board’s authority imposed by the terms of this Plan, all determinations and decisions made by the Board pursuant to the provisions of this Plan shall be final, conclusive and binding on all persons, and shall be given the maximum deference permitted by law.

 

4.                                       Participants .  The Board, in its sole discretion, may select from time to time Participants in this Plan from those Directors, Employees and consultants who, in the opinion of the Board, have the capacity for contributing in a substantial measure to the successful performance of the Company.

 

5.                                       Substitute Options .  In the event that the Company consummates a transaction described in Section 424(a) of the Code, persons who become Employees, Directors or consultants on account of such transaction may be granted Options in substitution for Options granted by the former employer.  The Board, in its sole discretion and consistent with Section 424(a) of the Code, shall determine the Exercise Price of the substitute Options.

 

6.                                       Award Agreement .  Each Award shall be evidenced by an Award Agreement containing the terms and the conditions of the Award, as determined by the Board, in its sole discretion; provided , however , the Award Agreement shall specify the Exercise Price, the time or

 

3



 

times at which an Option will vest or become exercisable, the number of Shares to which the Option pertains, and whether the Option is intended to be an Incentive Stock Option or a Nonqualified Stock Option.

 

7.                                       Shares Subject to Plan .  Subject to adjustment by the operation of Section 11 of this Plan, the maximum number of Shares that may be issued pursuant to Awards under this Plan as Incentive Stock Options is 0 Shares and as Nonqualified Stock Options is 320 Shares, which may be either authorized and unissued Shares or Shares acquired by the Company and held as treasury Shares.  Shares that are withheld to satisfy payment of the Exercise Price or any tax withholding obligation, and any Shares subject to an Award that expires, terminates, is forfeited or is surrendered for cancellation, may be subject to new Awards under this Plan.

 

8.                                       Termination of Options.   An Option shall terminate on, and may not be exercised after, the tenth anniversary of the Date of Grant; provided , however , that an Option will terminate earlier than such tenth anniversary (but under no circumstances later), in any of the following circumstances:

 

(a)                                  Incentive Stock Options .  An Incentive Stock Option shall terminate earlier in accordance with Section 10 of this Plan.

 

(b)                                  Award Agreement .  The Option may terminate earlier in accordance with the applicable Award Agreement.

 

(c)                                   Termination of Service Generally .  If a Participant has a Termination of Service for any reason other than his or her Disability, death or termination for Cause, then (i) any Option or portion thereof that is unvested (or otherwise unexercisable) as of the Termination Date shall terminate as of the Termination Date, and (ii) any Option or portion thereof that has previously vested (and is otherwise exercisable) as of the Termination Date shall terminate on the date that is three months after the Termination Date; provided , however , that if the Participant should die during that three-month period, such Option or portion thereof shall terminate on the date that is one year after the Termination Date (understanding that, in any event, such Option or portion thereof may terminate later under the circumstances described or referred to in the applicable Award Agreement).

 

(d)                                  Disability or Death .  If a Participant has a Termination of Service as a result of his or her Disability or death, then (i) any Option or portion thereof that is unvested (or otherwise unexercisable) as of the Termination Date shall terminate as of the Termination Date, and (ii) any Option or portion thereof that has previously vested (and is otherwise exercisable) as of the Termination Date shall terminate on the date that is one year after the Termination Date (understanding that, in any event, such Option or portion thereof may terminate later under the circumstances described or referred to in the applicable Award Agreement).

 

(e)                                   Cause .  If the Participant has a Termination of Service as a result of a termination for Cause by the Company, then any Option (whether vested or unvested) held by the Participant as of the Termination Date may be terminated in the sole discretion of the Company as of the Termination Date.

 

9.                                       Exercise of Options .

 

(a)                                  Exercise Period .  Subject to any vesting provisions or other conditions, restrictions or limitations regarding the exercise of an Option as determined by the Board,

 

4



 

an Option may be exercised, in whole or in part, at any time beginning on the Date of Grant and ending on the date the Option expires or otherwise terminates in accordance with the Award Agreement and this Plan.

 

(b)                                  Parties Who May Exercise .  During the lifetime of the Participant to whom an Option was granted, such Option may be exercised only by the Participant.  After the death of the Participant, but prior to the termination of the Option, such Option may be exercised by the Participant’s legal representative.

 

(c)                                   Notice and Payment .  To exercise an Option, the Participant must give written notice to the Company (which shall specify the number of Shares with respect to which the Participant elects to exercise the Option) together with full payment of the Exercise Price plus the amount of taxes required by the Company to be withheld pursuant to Section 17.  The date of exercise shall be the date on which the notice and payment are received by the Company.  Payment of the Exercise Price shall be made in cash (including check, bank draft or money order), or if permitted by the Board in its sole discretion, (i) by requesting that the Company withhold Shares issuable upon exercise of the Option having an aggregate Fair Market Value on the date of exercise equal to the aggregate Exercise Price, or (ii) through a combination of cash and such Shares.

 

(d)                                  Settlement Following Death of Participant .   Following the death of any Participant to whom an Option was granted under this Plan, the Board, as an alternative means of settlement of such Option, may elect to pay to the person properly exercising such Option the amount by which the Fair Market Value per Share on the date of exercise exceeds the Exercise Price, multiplied by the number of Shares with respect to which such Option is properly exercised.  Any such settlement of an Option shall be considered an exercise of such Option for all purposes of the applicable Award Agreement and this Plan.

 

10.                                Incentive Stock Options - Additional Provisions .  Notwithstanding any other provisions of this Plan or any Award Agreement to the contrary, Incentive Stock Options shall be subject to the following:

 

(a)                                  Eligible Participants .  Incentive Stock Options may be granted only to persons who are Employees as of the Date of Grant.

 

(b)                                  Limit on Fair Market Value of Shares .  The aggregate Fair Market Value (determined on the Date of Grant) of the Shares with respect to which Incentive Stock Options are exercisable for the first time by any Employee during any calendar year (under all plans of the Company) shall not exceed $100,000.

 

(c)                                   Minimum Exercise Price .  The Exercise Price for Shares awarded under Incentive Stock Options may not be less than the Fair Market Value of the Shares on the Date of Grant; provided , however , that the Exercise Price may not be less than 110% of Fair Market Value on the Date of Grant with respect to Incentive Stock Options granted to any Employee who (together with persons whose stock ownership is attributed to the Employee pursuant to Section 424(d) of the Code), owns stock possessing more than 10% of the total combined voting power of all classes of stock of the Company on the Date of Grant.

 

(d)                                  Termination of Service .  No Incentive Stock Option may be exercised more than three months after the Employee’s Termination of Service for any reason;

 

5



 

provided , however , if an Employee has a Termination of Service as a result of his or her Disability or death, then such Incentive Stock Option may not be exercised more than one year after Employee’s Disability or death.

 

(e)                                   Maximum Term .  No Incentive Stock Option may be exercised after the expiration of ten years from the Date of Grant; provided , however , that if the Incentive Stock Option is granted to an Employee who (together with persons whose stock ownership is attributed to the Employee pursuant to Section 424(d) of the Code), owns stock possessing more than 10% of the total combined voting power of all classes of stock of the Company, the Incentive Stock Option may not be exercised after the expiration of five years from the Date of Grant.

 

(f)                                    Transfer Restrictions .  No Incentive Stock Option shall be transferable by the Participant other than by will or the laws of descent and distribution.

 

(g)                                   Parties Who May Exercise .  No Incentive Stock Option shall be exercisable during the Participant’s lifetime by anyone other than the Participant.

 

Unless otherwise provided by the Board in the Award Agreement, to the extent that an Option does not qualify as an Incentive Stock Option because of its provisions, the time and manner of its exercise or otherwise, the Option or portion thereof which does not so qualify shall constitute a separate Nonqualified Stock Option.

 

11.                                Adjustments Upon Changes in Capitalization .  In the event of any change in the outstanding shares of the Company’s common stock (of any class) subsequent to the effective date of this Plan by reason of any recapitalization, stock split, stock dividend, combination of shares, or change in the corporate structure or capital structure of the Company, or by reason of any merger, consolidation, share exchange or similar statutory transaction other than a Change of Control (which are governed by Section 12), the maximum aggregate number and class of shares as to which Awards may be granted under this Plan, and the number and class of shares and Exercise Price of Options with respect to Awards previously granted under this Plan, shall be adjusted by the Board, in its sole discretion, in order to preclude, to the extent practicable, the enlargement or dilution of the rights and benefits incident to such Awards and to preserve the availability of shares for future grants under this Plan.  Any determination by the Board with respect to the foregoing matters shall be final, conclusive and binding on the Participants.

 

12.                                Change of Control .  Except as otherwise specifically provided in the Award Agreement, in the event of a Change of Control, the Board may, in its sole discretion, provide for the treatment of Awards in any manner it deems appropriate, including substituting for any or all outstanding Awards under this Plan such alternative consideration as it in good faith may determine to be equitable in the circumstances and may require in connection therewith the surrender of all Awards so replaced or the acceleration of the vesting of any Option or the provision of the same consideration, calculated on a per share basis, as the holders of Shares were entitled to receive as if the Options were exercised.  The adjustments contained in this Section and the manner of application of its provisions shall be determined solely by the Board.

 

13.                                Assignments and Transfers .

 

(a)                                  Of Awards .  Except as expressly authorized by the Board in the Award Agreement or as set forth in this Section, Awards may not be assigned, encumbered, hypothecated or otherwise transferred other than by will or the laws of descent and distribution, or pursuant to a qualified domestic relations order (as defined under the

 

6



 

Code or Title I of the Employee Retirement Income Security Act of 1974, as amended, or the regulations thereunder).  The Company shall not be liable to any person for honoring the exercise of an Option granted to a deceased Participant by the person or persons the Company shall have determined in good faith to have acquired the Option.

 

(b)                                  Of Shares .  The Shares issued upon the exercise of any Option shall be subject to the restrictions on sale, assignment, transfer, pledge or other encumbrance of such Shares as set forth in any shareholders agreement executed by the Participant as provided for in Section 15 hereof, if any.

 

14.                                Participant Rights Limited .  No Director, Employee, consultant or other person shall have a right to be selected as a Participant or, having been so selected, to be selected again as a Participant.  No Director, Employee, consultant or other person shall have any claim or right to be granted an Award under this Plan or under any other incentive or similar plan of the Company or any of its affiliates.  Neither this Plan nor any action taken pursuant to this Plan shall be construed as providing a contract of employment for any term or giving any person any right to be retained in the employ or service of the Company or any of its affiliates.

 

15.                                Shareholder Rights; Shareholders Agreement .  No Participant or other person shall have any of the rights or privileges of a shareholder of the Company with respect to any Shares issuable pursuant to an Award unless and until certificates representing the Shares shall have been issued, recorded on the records of the Company or its transfer agents or registrars, and delivered to the Participant or other person entitled to the Shares.  As a condition to issuing any Shares pursuant to an Award, or as a condition to granting any Award, the Board may require a Participant or any other person entitled to such Shares to execute a shareholder’s agreement containing such terms and conditions as determined by the Board of Directors in its sole discretion.  Such terms and conditions may include, among other things, (a) restrictions on the sale, assignment, transfer, pledge, hypothecation or other encumbrance of such Shares, (b) provisions granting the Company the right and option to repurchase such Shares upon or after any Termination of Service, (c) provisions granting the Company the right of first refusal to purchase such Shares in certain events, and (d) any other rights for the benefit of the Company that the Board of Directors may deem necessary or desirable.

 

16.                                Delivery and Registration of Stock .  The Company’s obligation to deliver Shares with respect to an Award shall be subject to such conditions, restrictions and contingencies as the Company may establish, including but not limited to, the receipt of a representation as to the investment intention of the person to whom Shares are to be delivered, in such form as the Company shall determine to be necessary or advisable to comply with any applicable federal or state securities laws or regulations.  If, at the time Shares are to be delivered under this Plan, the class of stock of which such Shares are a part is listed or traded on any stock exchange or quotation or similar system, then the Company shall not be required to deliver such Shares until any applicable requirements of such exchange or system have been complied with.  In addition, the Company shall not be required to deliver any Shares under this Plan prior to the completion of such registration or other qualification of such Shares under any state or federal law, rule or regulation, as the Company shall determine to be necessary or advisable.

 

17.                                Withholding Tax .  Where a Participant or other person is entitled to receive Shares pursuant to an Option, the Company shall have the right to require the Participant or such other person to pay the Company the amount of any taxes that the Company is required to withhold with respect to such Shares or, in lieu thereof, to retain (and sell, if the Company so chooses) a number of such Shares sufficient to cover the amount required to be withheld.  The

 

7



 

Company shall also have the right to deduct from all dividends paid with respect to Shares retained pursuant to this Section the amount of any taxes that the Company is required to withhold with respect to such dividend payments.

 

18.                                Termination, Amendment and Modification of Plan .  The Board may at any time terminate, and may at any time and from time to time and in any respect amend or modify, this Plan; provided , however , that to the extent necessary and desirable to comply with Section 422 of the Code (or any other applicable law or regulation, including requirements of any stock exchange or quotation system on which the Shares are listed or quoted), shareholder approval of any Plan amendment shall be obtained in such a manner and to such a degree as is required by the applicable law or regulation; and provided further , that no termination, amendment or modification of this Plan shall in any manner affect any Award granted pursuant to this Plan prior to the date of such termination, amendment or modification, without the consent of the Participant or, if applicable, the transferee of the Award.

 

19.                                Effective Date and Term of Plan .  This Plan shall become effective upon its adoption by the Board, subject to approval and ratification by the shareholders of the Company.  After approval by the Company’s shareholders, this Plan shall continue in effect for a term of ten years after the date of adoption by the Board of Directors unless sooner terminated pursuant to Section 18 above.

 

20.                                Unfunded .  This Plan is intended to be an unfunded plan for incentive compensation.  With respect to any payments not yet made to a Participant pursuant to an Award, nothing contained in this Plan or any Award Agreement shall give the Participant any rights greater than that of a general unsecured creditor of the Company.

 

21.                                Governing Law .  This Plan and the Award Agreements shall be construed in accordance with and governed by the laws of the State of Michigan.

 

 

Adopted by the Board of Directors

 

of Diplomat Pharmacy, Inc.

 

as of 1 / 1 / 07

 

 

 

Adopted by the Shareholders

 

of Diplomat Pharmacy, Inc.

 

as of 1 / 1 / 07

 

8




Exhibit 10.5

 

AWARD AGREEMENT

(Nonqualified Stock Option)

 

You have been granted the following option to purchase common stock of Diplomat Pharmacy, Inc. as set forth below.

 

 

 

 

 

The following summary is qualified in its entirety by the terms of this Agreement and the 2007 Stock Option Plan:

 

 

 

 

 

 

 

 

Grantee:

 

Date of Grant:

 

 

 

 

 

 

 

 

 

Address:

 

Expiration Date:

 

 

 

 

 

 

 

 

 

 

 

Exercise Price

 

 

 

 

 

Total:

$

 

 

 

 

 

 

 

 

 

 

Exercise Price

 

 

 

 

 

Per Share:

$

 

 

 

 

 

 

 

 

No. of Class A Voting Shares:

 

Option No.

NQSO-

 

 

 

 

 

 

 

 

No. of Class B Non-Voting Shares:

 

Type of Option:

Nonqualified Stock Option

 

 

 

 

 

 

 

Vesting: This option will vest and you may exercise it with respect to the first 25% of the Shares subject to this option following your completion of twelve (12) months of Service from the above date of grant. The remaining 75% of the Shares will vest and will be exercisable in three annual installments of 25% each on the last day of each twelve (12) month period of Service so that all options shall vest after a total of four (4) years of continuous Service. This option may become exercisable on an accelerated basis under Section 3 of this Award Agreement in the event of a Change in Control.

 

Exercise/Purchase: Once options vest, you may exercise them and purchase Shares by paying the exercise price above to the Company. The Company has no obligation to repurchase options or Shares from you at any time but may elect to purchase Shares under the terms of the Buy/Sell Agreement.

 

Termination of Options: Your options will terminate on the earlier of the Expiration Date above or as follows: Unvested options — upon termination of your Service (regardless if for cause). Vested Options — Three (3) months after termination of your Service except for death or disability (in which case options terminate one (1) year after termination of Service) or for if you are terminated for cause (all vested options may be immediately forfeited).

 

Rights as a Shareholder — Options do not give you any rights as a Shareholder. Once you exercise and purchase Shares, you will be a Shareholder and you will be subject to the terms of the Buy Sell Agreement applicable to Shareholders and which agreement places significant restrictions on your ability to transfer Shares.

 

 

 

 

 



 

THE OPTIONS AND UNDERLYING SHARES OF COMMON STOCK REPRESENTED HEREBY ARE ISSUED SUBJECT TO CERTAIN RESTRICTIONS UNDER THE DIPLOMAT PHARMACY, INC. 2007 STOCK OPTION PLAN, AS AMENDED AND RESTATED (THE “PLAN”), INCLUDING, WITHOUT LIMITATION, THE RESTRICTIVE COVENANTS CONTAINED IN SECTION 9 OF THE PLAN.  A COPY OF THE PLAN IS ON FILE IN THE OFFICE OF THE SECRETARY OF THE COMPANY.

 

THE OPTIONS AND UNDERLYING SHARES OF COMMON STOCK REPRESENTED HEREBY ARE SUBJECT TO THE PROVISIONS OF THE COMPANY’S ARTICLES OF INCORPORATION, THE BYLAWS OF THE COMPANY AND A BUY/SELL AGREEMENT (THE “BUY/SELL AGREEMENT”), WHICH MUST BE EXECUTED AND DELIVERED TO THE COMPANY AS A CONDITION TO THE EXERCISE OF ANY OPTIONS HEREUNDER.  COMPLETE AND CORRECT COPIES OF THE COMPANY’S ARTICLES AND BYLAWS ARE AVAILABLE FOR INSPECTION AT THE PRINCIPAL OFFICE OF THE COMPANY AND WILL BE FURNISHED UPON WRITTEN REQUEST AND WITHOUT CHARGE.

 

THE OPTIONS AND UNDERLYING SHARES OF COMMON STOCK REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “1933 ACT”), OR UNDER ANY APPLICABLE STATE SECURITIES LAWS.  THESE SECURITIES HAVE BEEN ACQUIRED FOR INVESTMENT PURPOSES ONLY AND NOT WITH A VIEW TO DISTRIBUTION OR RESALE, AND MAY NOT BE SOLD, TRANSFERRED, MADE SUBJECT TO A SECURITY INTEREST, MORTGAGED, PLEDGED, HYPOTHECATED OR OTHERWISE DISPOSED OF OR TRANSFERRED UNLESS AND UNTIL REGISTERED UNDER THE 1933 ACT AND APPLICABLE STATE SECURITIES LAWS, OR AN OPINION OF COUNSEL FOR THE COMPANY IS RECEIVED THAT REGISTRATION IS NOT REQUIRED UNDER THE 1933 ACT OR STATE SECURITIES LAWS OR AN EXEMPTION FROM REGISTRATION IS AVAILABLE.

 

This Award Agreement (“Agreement”) is made as of the Date of Grant set forth above between DIPLOMAT PHARMACY, INC., d/b/a Diplomat Specialty Pharmacy, a Michigan corporation (the “Company”), and the grantee named above (“Grantee”).

 

The Diplomat Pharmacy, Inc. 2007 Stock Option Plan, as amended and restated (the “Plan”), is administered by the Company’s Board of Directors (the “Board”).  The Board has determined that Grantee is eligible to participate in the Plan.  The Board has granted this Option to Grantee, subject to the terms and conditions contained in this Agreement and in the Plan.

 

Grantee acknowledges receipt of a copy of the Plan and accepts this Option subject to all of the terms, conditions and provisions of this Agreement and the Plan. Capitalized terms used herein but not defined herein have the meaning ascribed to such terms in the Plan.

 

1.                                       Grant .  The Company hereby grants to Grantee an Option to purchase the number of Shares as set forth above.

 

2



 

2.                                       Price .  The Exercise Price per Share is set forth above (subject to adjustment as provided in the Plan).

 

3.                                       Term and Vesting .  The right to exercise this Option shall commence in accordance with the following schedule (in each case rounded to the nearest whole number of shares):

 

·                   25% of each of the Class A Voting and Class B Non-Voting Shares optioned under this Agreement will vest on April 1, 2013

 

·                   25% of each of the Class A Voting and Class B Non-Voting Shares optioned under this Agreement will vest on April 1, 2014

 

·                   25% of each of the Class A Voting and Class B Non-Voting Shares optioned under this Agreement will vest on April 1, 2015

 

·                   25% of each of the Class A Voting and Class B Non-Voting Shares optioned under this Agreement will vest on April 1, 2016

 

Grantee may exercise the vested portions of this Option at any time, or from time to time, beginning on the date vested as set forth above.  The right to exercise the vested portion of this Option shall terminate on the Expiration Date shown above, unless earlier terminated pursuant to the terms of the Plan.  In the event of a Change in Control of the Company, as defined in the Plan, all unvested Options will immediately vest upon the effective date of the Change in Control.

 

4.                                       Exercise .  Grantee shall exercise this Option by giving the Company a written notice of the exercise of this Option.  The notice shall set forth the number of shares to be purchased.  For each Class A Voting share that Grantee elects to purchase, Grantee is also required to purchase 19 Class B Non-Voting shares.   The notice shall be effective when received by the President at the Company’s main office, accompanied by full payment (as set forth below) of the option price plus the amount of any taxes required by the Company to be withheld and an executed Subscription Agreement and Buy/Sell Agreement, in a form provided by the Company.  The Company will deliver to Grantee a certificate or certificates for such shares; provided , that the time of delivery may be postponed for such period as may be required for the Company with reasonable diligence to comply with any registration requirements under the Securities Act of 1933, the Securities Exchange Act of 1934, any requirements under any other law or regulation applicable to the issuance, listing or transfer of such shares, or any agreement or regulation of any applicable stock exchange or quotation system (if applicable).  If Grantee fails to accept delivery of and pay for all or any part of the number of shares specified in the notice upon tender or delivery of the Shares, Grantee’s right to exercise the Option with respect to such undelivered Shares shall terminate.

 

5.                                       Payment by Grantee .  When exercising the Option, Grantee shall pay the Company in cash or by certified check or wire transfer of immediately available funds.

 

6.                                       Transferability .  The Plan provides that this option is generally not transferable by Grantee except by will or the laws of descent and distribution, and is exercisable during

 

3



 

Grantee’s lifetime only by Grantee.  Further, Shares issued upon exercise of this Option are subject to the provisions of the Buy/Sell Agreement between Grantee and the Company. The Buy/Sell Agreement places restrictions on the transfer of the Shares and gives the Company and other shareholders the right, but not the obligation , to purchase Shares upon the death of Grantee and under certain other circumstances. The Company may, in the event it deems the same desirable to assure compliance with applicable federal and state securities laws, place an appropriate restrictive legend upon any certificate representing Shares issued pursuant to the exercise of this Option, and may also issue appropriate stop transfer instructions to its transfer agent with respect to such shares.

 

7.                                       Termination .  This Option shall terminate at the times provided in the Plan.

 

8.                                       Shareholder Rights .  Grantee shall have no rights as a shareholder with respect to any Shares covered by this Option until the date of issuance of a stock certificate to the Grantee for such Shares.

 

9.                                       Employment by the Company .  The grant of this option shall not impose upon the Company or any affiliate any obligation to retain Grantee in its employ for any given period or upon any specific terms of employment.  The Company or any subsidiary may at any time dismiss Grantee from employment, free from any liability or claim under the Plan or otherwise, unless otherwise expressly provided in any written agreement with Grantee.

 

10.                                Certifications .  Grantee hereby represents and warrants that Grantee is acquiring the Option granted under this Agreement for Grantee’s own account and investment and without any intent to resell or distribute the Shares upon exercise of the Option.  Grantee shall not resell or distribute the Shares received upon exercise of the Option except in compliance with such conditions as the Company may reasonably specify to ensure compliance with federal and state securities laws.

 

11.                                Effective Date .  This Option shall be effective as of the Date of Grant.

 

12.                                Amendment .  Except as otherwise provided by the Plan, this Option shall not be modified except in a writing executed by the parties hereto.

 

13.                                Agreement Controls .  The Plan is incorporated in this Agreement by reference.  In the event of any conflict between the terms of this Agreement and the terms of the Plan, the provisions of this Agreement shall control.

 

14.                                Administration .  The Board has full power and authority to interpret the provisions of the Plan, to supervise the administration of the Plan and to adopt forms and procedures for the administration of the Plan, except as limited by the Plan.  All determinations not inconsistent with the Plan and this Agreement made by the Board shall be final, conclusive and binding on Grantee.

 

15.                                Illegality .  Grantee will not exercise this Option, and the Company will not be obligated to issue any Shares to the Grantee under this Option, if the exercise thereof or the

 

4



 

issuance of such Shares shall constitute a violation by the Grantee or the Company of any provisions of any law, order or regulation of any governmental authority.

 

GRANTEE ACKNOWLEDGES THAT HE/SHE HAS READ THE ABOVE AGREEMENT AND UNDERSTANDS IT, INCLUDING THE VESTING AND EXERCISE PROVISIONS AND ACKNOWLEDGES THAT THE COMPANY HAS NO OBLIGATION TO REPURCHASE OPTIONS OR SHARES FROM GRANTEE.

 

This Award Agreement is executed as of the Date of Grant set forth above.

 

 

 

DIPLOMAT PHARMACY, INC., D/B/A

 

DIPLOMAT SPECIALTY PHARMACY

 

 

 

 

 

By

 

 

 

Philip R. Hagerman, President

 

 

 

 

 

Grantee:

 

 

 

 

 

Signature

 

 

 

5




Exhibit 21.1

 

Subsidiaries of Diplomat Pharmacy, Inc.

 

Subsidiary

 

State of Formation

Envoy Health Management, LLC d/b/a Diplomat Pharmacy Services

 

Michigan

Navigator Health Services, LLC

 

Michigan

Diplomat Health Services, LLC

 

Michigan

Diplomat Specialty Pharmacy of Flint, LLC

 

Michigan

Diplomat Specialty Pharmacy of Grand Rapids, LLC

 

Michigan

Diplomat Specialty Pharmacy of Chicago, LLC

 

Michigan

Diplomat Specialty Pharmacy of Ft. Lauderdale, LLC

 

Michigan

Diplomat Specialty Pharmacy of Southern California, LLC

 

Michigan

Ambassador Compounding, LLC

 

Michigan

Diplomat Specialty Pharmacy Great Lakes Distribution Center, LLC

 

Michigan

DSP Flint Real Estate, LLC

 

Michigan

DSP-Building C, LLC

 

Michigan

Diplomat Corporate Properties, LLC

 

Michigan

Diplomat Holding, LLC

 

Michigan

Diplomat Infusion Services, LLC

 

Michigan

Diplomat Health Management, LLC

 

Michigan

American Homecare Federation, Inc.

 

Connecticut

MedPro Rx, Inc.

 

North Carolina

 




Exhibit 23.1

 

Consent of Independent Registered Public Accounting Firm

 

Diplomat Pharmacy, Inc.

Flint, Michigan

 

We hereby consent to the use in the Prospectus constituting a part of this Registration Statement of our report dated June 27, 2014, relating to the consolidated financial statements of Diplomat Pharmacy, Inc., which is contained in that Prospectus.

 

We also consent to the reference to us under the caption “Experts” in the Prospectus.

 

/s/ BDO USA, LLP

 

Troy, Michigan

 

 

July 2, 2014




Exhibit 23.2

 

CONSENT OF INDEPENDENT AUDITORS

 

We hereby consent to the use in this Registration Statement on Form S-1 of our report dated June 24, 2014 relating to the consolidated financial statements of American Homecare Federation, Inc. and Affiliate as of and for the nine month period ended September 30, 2013 which appear in such Registration Statement.  We also consent to the reference to us under the heading “Experts” in such Registration Statement.

 

 

/s/ Plante & Moran, PLLC

 

 

Flint, Michigan

 

July 2, 2014