EXHIBIT 10.1
MASTER MERGER AGREEMENT
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THIS MASTER MERGER AGREEMENT (this "Agreement") is made and entered into as
of January 6, 1996, by and among ASTHMA & ALLERGY CAREAMERICA, INC., a Delaware
corporation ("AACA"); its parent company, VIVRA INCORPORATED, a Delaware
corporation ("VIVRA"), PEDIATRIC ALLERGY GROUP, A PROFESSIONAL ASSOCIATION, a
Tennessee professional corporation ("PAG"); PAG's shareholders, XXXXXX X.
XXXXXX, M.D., an individual resident of Tennessee ("Xxxxxx"), XXXX X. XXXXXX,
XX., M.D., an individual resident of Tennessee ("Xxxxxx") and XXXXXXX X. XXXXX,
M.D., an individual resident of Tennessee ("Xxxxx") (with Xxxxxx, Xxxxxx and
Xxxxx being collectively referred to herein as the "PAG Physicians"), XXXXXXX
X. XXXXXXXXX, M.D., P.C., a Tennessee professional corporation ("PLL"); PLL's
shareholder, XXXXXXX X. XXXXXXXXX, M.D., an individual resident of Tennessee
("Xxxxxxxxx"); XXXXXX X. XXXXXXXXX, III, M.D., P.C., a Tennessee professional
corporation ("GHT"); and GHT's shareholder, XXXXXX X. XXXXXXXXX, III, M.D., an
individual resident of Tennessee ("Xxxxxxxxx") (with the PAG Physicians,
Xxxxxxxxx and Xxxxxxxxx being collectively referred to as the "Physicians").
W I T N E S S E T H:
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WHEREAS, PAG owns and operates a pediatric allergy practice with its
principal office located at Suite Seven, 000 Xxxxx Xxxxxx Xxxx, Xxxxxxx,
Xxxxxxxxx 00000-0000, together with any satellite locations in the Memphis,
Tennessee area (collectively the "PAG Business");
WHEREAS, the PAG Physicians own all of the outstanding stock of PAG;
WHEREAS, PLL owns and operates an allergy practice with its principal
office located at Suite Six, 000 Xxxxx Xxxxxx Xxxx Xxxx, Xxxxxxx, Xxxxxxxxx
00000-0000, together with any satellite locations in the Memphis, Tennessee area
(collectively the "PLL Business");
WHEREAS, Xxxxxxxxx owns all of the outstanding stock of PLL;
WHEREAS, GHT owns and operates an allergy practice with its principal
office located at Suite Six, 000 Xxxxx Xxxxxx Xxxx Xxxx, Xxxxxxx, Xxxxxxxxx
00000-0000, together with any satellite locations in the Memphis, Tennessee area
(collectively the "GHT Business");
WHEREAS, Xxxxxxxxx owns all of the outstanding stock of GHT;
WHEREAS, the parties desire to effect three mergers (the "Mergers") to
merge simultaneously PAG, PLL and GHT (collectively, the "Businesses" and,
individually, a "Business") with and into AACA, with AACA being the surviving
corporation in the Mergers in exchange for VIVRA Common Stock;
WHEREAS, for federal income tax purposes, it is intended that each of said
Mergers shall qualify as a "reorganization" within the provisions of Section 368
of the Internal Revenue Code of 1986, as amended;
WHEREAS, for accounting purposes, it is intended that each of the Mergers
shall be accounted for as a pooling of interests;
NOW, THEREFORE, in consideration of these premises and the agreements
contained herein, the sufficiency of which is hereby acknowledged, the parties
hereto, intending to be legally bound, do hereby agree as follows:
SECTION 1 THE MERGERS.
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1.1 AGREEMENT TO MERGE. On the terms, subject to the conditions, and for
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the consideration stated herein and in that certain Agreement and Plan of Merger
of even date by and among AACA, PAG and the PAG Physicians (the "PAG Merger
Agreement"), in that certain Agreement and Plan of Merger of even date by and
among AACA, PLL, and Xxxxxxxxx (the "PLL Merger Agreement"), and in that certain
Agreement and Plan of Merger of even date by and among AACA, GHT and Xxxxxxxxx
(the "GHT Merger Agreement") (with the PAG Merger Agreement, the PLL Merger
Agreement, and the GHT Merger Agreement being collectively referred to herein as
the "Merger Agreements"), each of the parties hereto, insofar as applicable to
such party, agrees that the Businesses shall be merged with and into AACA, with
AACA being the surviving corporation (the "Surviving Corporation"). The merger
of the Businesses with and into AACA (the "Mergers") shall become effective as
of the "Effective Time" (as hereinafter defined).
1.2 EFFECTIVE TIME OF MERGERS. At the "Closing" (as hereinafter defined),
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AACA and each of the Businesses shall execute and deliver all agreements and
documents as contemplated in the Merger Agreement applicable to each Business to
effect its respective Merger in accordance with all appropriate legal
requirements as required by the Delaware General Corporation Law, the Tennessee
Professional Corporation Act and the Tennessee Business Corporation Act at the
time and date contemplated in the
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Merger Agreements (such time being referred to as the "Effective Time").
SECTION 2. THE CLOSING.
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2.1 CLOSING AND CLOSING DATE. The Closing (the "Closing") of the Mergers
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and the execution and delivery of the agreements and documents contemplated by
each of the Merger Agreements and this Agreement shall take place on or before
January 5, 1996, at 11:00 a.m. C.S.T., at the offices of The Bogatin Law Firm,
000 Xxxxx Xxxx Xxxxxxxxx, Xxxxx 000, Xxxxxxx, Xxxxxxxxx, or at such other place
and time as may be deemed appropriate by the parties hereto. At the Closing,
the parties will execute and deliver all agreements and documents and take such
action as contemplated in the Merger Agreements and in this Agreement.
2.2 SIMULTANEOUS CLOSINGS. The parties acknowledge and agree that the
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closings of all of the transactions contemplated by each of the Merger
Agreements shall constitute conditions precedent to AACA's obligations to close
the transactions contemplated by each of the other Merger Agreements, such that
failure to close the transactions contemplated under any Merger Agreement shall
serve to automatically terminate all other Merger Agreements unless all parties
to the Merger Agreements and this Agreement shall agree otherwise.
SECTION 3. CONDITIONS OF CLOSING.
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In addition to the conditions set forth in Section 2.2 above, all
obligations which are to be satisfied or performed under the Merger Agreements
at the Closing are subject to certain conditions set forth in the Merger
Agreements and are subject to the performance by the parties of the actions set
forth herein.
3.1 FORMATION OF NEW COMPANY. A new Tennessee professional corporation
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("Newco") shall have been formed.
3.2 PRACTICE OPERATING AGREEMENT. At the Closing, each of the Physicians,
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AACA, Newco and Newco's sole shareholder shall enter into the Practice Operating
Agreement by and among all of them as the parties thereto.
3.3 EMPLOYMENT AGREEMENTS. At the Closing, each of the Physicians and
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Newco shall enter into an Individual Employment Agreement by and among the
Physician and Newco as the parties thereto, which agreement shall supersede any
prior employment agreements of such Physician.
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3.4 MANAGEMENT SERVICES AGREEMENT. At the Closing, Newco and AACA shall
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enter into a Management Services Agreement by and between Newco and AACA as the
parties thereto.
3.5 LEGAL OPINION. Bass, Xxxxx & Xxxx shall have rendered an opinion to
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AACA, in form and substance satisfactory to AACA, to the effect that the
Management Services Agreement is valid and enforceable under Tennessee law.
SECTION 4. MISCELLANEOUS.
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4.1 EXPENSES. All expenses of the preparation of this Agreement and of
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the other agreements and transactions contemplated hereby, including, without
limitation, counsel fees, accounting fees, investment advisor's fees and
disbursements, shall be borne by the PAG Shareholders in the case of PAG or any
of the PAG Shareholders, by Xxxxxxxxx in the case of PLL or Xxxxxxxxx, by
Xxxxxxxxx in the case of GHT or Xxxxxxxxx, and by AACA in the case of AACA and
Newco.
4.2 NOTICES. All notices, demands and other communications hereunder
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shall be written and shall be deemed to have been duly given if delivered in
person or mailed by Federal Express (or other national air courier service),
charges prepaid, to the address set forth below:
To AACA or VIVRA: Asthma & Allergy CareAmerica,
Inc.
Northridge Business Park
0000 Xxxxxxxx Xxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attention: Xx. Xxxxxx X. Xxxxxxx
with a copy to: Xxxx X. Xxxxxx, Xx., Esq.
Parker, Hudson, Rainer & Xxxxx
1500 Marquis Two Tower
000 Xxxxxxxxx Xxxxxx Xxxxxx, X.X.
Xxxxxxx, Xxxxxxx 00000
To the Physicians: Xxxxxxx X. Xxxxxxxxx, M.D.
Xxxxxx Xxxxxxxxx, III, M.D.
Suite 6, 000 Xxxxxx Xxxx Xxxx
Xxxxxxx, Xxxxxxxxx 00000
Xxxxxx X. Xxxxxx, M.D.
Xxxx X. Xxxxxx, Xx., M.D.
Xxxxxxx X. Xxxxx, M.D.
Suite 7, 000 Xxxxxx Xxxx Xxxx
Xxxxxxx, Xxxxxxxxx 00000
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with a copy to: Xxxxx Xxxxxxxx, Esq.
The Bogatin Law Firm
000 Xxxxx Xxxx Xxxxxxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxxxx 00000
or to such other address as AACA or the Physicians may designate by notice to
the other. Notices delivered in person shall be deemed delivered on the date of
delivery and notices sent via air courier service, as aforesaid, shall be deemed
delivered on the date of delivery as indicated by the records of the courier
service. Rejection or other refusal to accept or inability to deliver because
of a changed address of which no notice was given shall be deemed to be a
receipt of the notice, request or other communication. Any notice, request or
other communication required or permitted to be given by any party may be given
by such party's legal counsel.
4.3 ENTIRE AGREEMENT. This Agreement and the Exhibits, and the other
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agreements and schedules and documents delivered pursuant hereto constitute the
entire agreement between the parties hereto pertaining to the subject matter
hereof and supersede all prior and contemporaneous agreements, understandings,
letters of intent negotiations and discussions, whether written or oral, of the
parties, and there are no representations, warranties or other agreements
between the parties in connection with the subject matter hereof, except as
specifically set forth herein. No supplement, modification or waiver of this
Agreement shall be binding unless executed in writing by the party or parties to
be bound thereby.
4.4 GOVERNING LAW. The validity and construction of this Agreement shall
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be governed by the laws of the State of Tennessee, except insofar as this
Agreement may specify that the laws of Delaware may apply to the Merger.
4.5 ARBITRATION.
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4.5.1 The parties will attempt through good faith negotiations to
resolve their disputes regarding this Agreement. The term "disputes" includes,
without limitation, any disagreements between the parties concerning the
existence, formation, interpretation and implementation of this Agreement. If
the parties are to resolve their disputes by negotiation, either party may
commence arbitration by sending a written notice of arbitration to the other
party. The notice will state the dispute with particularity.
4.5.2 There shall be three arbitrators. If the parties fail to
select mutually acceptable arbitrators within ten (10) days after the notice of
arbitration, a tribunal of arbitrators (one
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selected by PAG, one selected by AACA, and one who shall be appointed by the
first two arbitrators), who shall be located in the State of Tennessee, shall be
appointed as soon as possible on the request of either party. If any party
fails to select an arbitrator within ten (10) days after demand, such arbitrator
shall be appointed by the American Arbitration Association. The fee payable to
the arbitrators shall be based upon the then current fee schedule of the
American Arbitration Association.
4.5.3 The parties shall have reasonable rights of discovery.
4.5.4 Except as set forth in this Section, the tribunal shall conduct
the arbitration according to the Commercial Arbitration Rules of the American
Arbitration Association. Arbitration shall take place in the State of Tennessee
unless the parties otherwise agree. The tribunal shall base the decision on the
express language of this Agreement. Within ten (10) days after the tribunal is
appointed, or as soon thereafter as shall be reasonably practicable, the
tribunal will conduct a hearing on the dispute. Each party may make written
submissions to the tribunal, and each party shall have a reasonable opportunity
for rebuttal, but no longer than ten (10) days. As soon as reasonably
practicable, but not later than ten (10 ) days after the hearing is completed,
the tribunal shall arrive at a final decision, which shall be reduced to
writing, signed by the tribunal and mailed to each party and its legal counsel.
4.5.5 All decisions of the tribunal shall be final, and binding on
all parties, and (except as provided below) shall constitute the only method of
resolving disputes. Judgment may be entered upon the decision in accordance
with applicable law in any court having jurisdiction.
4.5.6 This arbitration section and all decisions of the tribunal
shall be specifically enforceable in a court of law, or in the arbitral
tribunal.
4.5.7 This arbitration section and all decisions of the arbitrator
shall be specifically enforceable in a court of law, or in the arbitral
tribunal.
4.6 SECTION HEADINGS. The Section headings are for reference only and
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shall not limit or control the meaning of any provisions of this Agreement.
4.7 WAIVER. No delay or omission on the part of any party hereto in
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exercising any right hereunder shall operate as a waiver of such right or any
other right under this Agreement.
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4.8 NATURE AND SURVIVAL OF REPRESENTATIONS. All statements contained in
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any certificate delivered by or on behalf of a party to this Agreement in
connection with the transactions contemplated hereby shall be deemed to be
representations and warranties made by such party hereunder. The covenants,
representations and warranties made by a party to another in such party's
respective Merger Agreement, this Agreement or pursuant thereto or hereto shall
survive the Closing for the applicable period stated in such Merger Agreement.
4.9 AMENDMENTS. This Agreement may be amended, but only in writing,
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signed by the parties hereto.
4.10 COUNTERPARTS. This Agreement may be executed in any number of
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counterparts, each of which shall be an original, but all of which together
shall comprise one and the same instrument.
4.11 ATTORNEYS' FEES. In the event that a suit, action, arbitration, or
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other proceeding of any nature whatsoever, including, without limitation, any
proceeding under the U.S. Bankruptcy Code and involving issues peculiar to
federal bankruptcy law, any action seeking a declaration of rights or any action
for rescission, is instituted to interpret or enforce this Agreement or any
provision of this Agreement, the prevailing party shall be entitled to recover
from the losing party the prevailing party's reasonable attorneys', paralegals',
accountants', and other experts' professional fees and all other fees, costs,
and expenses actually incurred and reasonably necessary in connection therewith,
as determined by the judge or arbitrator at trial or other proceeding, or on any
appeal or review, in addition to all other amounts provided by law.
4.12 RULES OF CONSTRUCTION. All references herein to the singular shall
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include the plural, and vice versa, and all references herein to the neuter
shall include the masculine or feminine, as the case may be, and vice versa.
When general words or terms are used herein followed by the word "including" (or
another form of the word "include") and words of particular and specific
meaning, the general words shall be construed in their widest extent, and shall
not be limited to persons or things of the same general kind or class as those
specifically mentioned in the words of particular and specific meaning. All
parties have participated in the drafting of this Agreement. No provision of
this Agreement shall be construed against or interpreted to the disadvantage of
a party by reason of such party having or being deemed to have drafted,
structured or dictated such provisions.
4.13 TIME. Time is of the essence of this Agreement.
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IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as
of the day and year first above written.
ASTHMA & ALLERGY CAREAMERICA, INC.,
a Delaware corporation
By:
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Title:
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VIVRA INCORPORATED, a Delaware
corporation ("VIVRA")
By:
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Title:
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PEDIATRIC ALLERGY GROUP, A PROFESSIONAL
ASSOCIATION, a
Tennessee professional corporation
By:
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Title:
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_____________________________________
XXXXXX X. XXXXXX, M.D., an individual
resident of Tennessee
_____________________________________
XXXX X. XXXXXX, XX., M.D., an
individual resident of Tennessee
_____________________________________
XXXXXXX X. XXXXX, M.D., an individual
resident of Tennessee
[Signatures continued on following page]
XXXXXXX X. XXXXXXXXX, M.D., P.C., a
Tennessee professional corporation
By:
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Title:
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_____________________________________
XXXXXXX X. XXXXXXXXX, M.D., an
individual resident of Tennessee
[Signatures continued on following page]
XXXXXX X. XXXXXXXXX, III, M.D., P.C.,
a Tennessee professional corporation
By:
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Title:
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___________________________________
XXXXXX X. XXXXXXXXX, III, M.D., an
individual resident of Tennessee
