Exhibit 10.17
AGREEMENT
This Agreement (the "Agreement") is made as of October 9, 1996 by and
between American Medserve Corporation, a Delaware corporation (the "Company"),
and Golder, Thoma, Xxxxxxx, Xxxxxx Fund IV, L.P., a Delaware Limited Partnership
(the "Investor").
Whereas, Investor holds 72.0% of the Company's issued and outstanding
shares;
Whereas, after the consummation of the Company's initial public offering,
Investor will own in excess of 38% of the Company's issued and outstanding
shares;
Whereas, the Company and the Investor now wish to establish certain terms
pertaining to the size and composition of the Company's Board of Directors (the
"Board").
Now, therefore, in consideration of the mutual covenants contained herein
and other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the Company and the Investor agree as follows:
1. From and after the date of this Agreement and until the provisions of
this Section 1 cease to be effective, the Company agrees that upon the request
of the Investor, which request shall be made upon reasonable notice, the Company
shall take all necessary and desirable actions within its control (including,
without limitation, calling special Board and stockholders meetings) (a) so that
the authorized number of directors on the Company's Board shall be established
at seven and (b) to nominate a representative of the Investor for election to
the Company's Board.
2. This Agreement shall be effective until the Investor's ownership
percentage of the Company's voting stock on a fully-diluted basis shall be less
than 15%.
3. Except as otherwise provided herein, no modification, amendment or
waiver of any provision of this Agreement shall be effective against the Company
or the Investor unless such modification, amendment or waiver is approved in
writing by the Company and the Investor. The failure of any party to enforce
any of the provisions of this Agreement shall in no way be construed as a waiver
of such provisions and shall not affect the right of such party thereafter to
enforce each and every provision of this Agreement in accordance with its terms.
4. 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 is held to be invalid, illegal or
unenforceable in any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality or unenforceability shall not affect
any other provision or any other jurisdiction, but this Agreement shall be
reformed, construed and enforced in such jurisdiction as if such invalid,
illegal or unenforceable provision had never been contained herein.
5. Except as otherwise expressly set forth herein, this document and the
agreements referred to herein embody the complete agreement and understanding
among the parties hereto with respect to the subject matter hereof and supersede
and preempt any prior understandings, agreements or representations by or among
the parties, written or oral, which may have related to the subject matter
hereof in any way.
6. Except as otherwise provided herein, this Agreement shall bind and
inure to the benefit of and be enforceable by the Company and its successors and
assigns and the Investor and its successors and assigns.
7. This Agreement may be executed in separate counterparts each of which
shall be an original and all of which taken together shall constitute one and
the same agreement.
8. Any notice shall be in writing and shall be personally delivered,
mailed first class mail (postage prepaid) or sent by reputable overnight courier
service (charges prepaid) to the Company and the Investor at the addresses set
forth below and to any subsequent holder of Common Stock subject to this
Agreement at such address as indicated by the Company's records, or at such
address or to the attention of such other person as the recipient party has
specified by prior written notice to the sending party. Notices will be deemed
to have been given hereunder when delivered personally, three days after deposit
in the U.S. mail and one day after deposit with a reputable overnight courier
service.
If to the Company:
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American Medserve Corporation
Park Lake Center
000 Xxxxxx Xxxxxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: CEO
If to the Investor:
------------------
Golder, Thoma, Xxxxxxx, Xxxxxx Fund IV, L.P.
0000 Xxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000-0000
Attention: Xxxxx X. Xxxxxxx
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with a copy to:
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Xxxxxxxx & Xxxxx
000 Xxxx Xxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxx X. Xxxxxxxxx, Esq.
9. All questions concerning the construction, validity and interpretation
of this Agreement shall be governed by and construed in accordance with the
internal laws of the State of Delaware, without giving effect to any choice of
law or other conflict of law provision or rule (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.
10. The parties hereto have participated jointly in the negotiation and
drafting of this Agreement. In the event an ambiguity or question of intent or
interpretation arises, this Agreement shall be construed as if drafted jointly
by the parties hereto and no presumption or burden of proof shall arise favoring
or disfavoring any party by virtue of the authorship of any of the provisions of
this Agreement.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the
date first written above.
GOLDER, THOMA, XXXXXXX, XXXXXX AMERICAN MEDSERVE
FUND IV, L.P. CORPORATION
By: GTCR IV, L.P.
Its: General Partner
By: Golder, Thoma, Cressey, Rauner, Inc. By: /s/ Xxxxxxx X. Xxxxxxxx
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Its: General Partner Its: President and Chief Executive
Officer
By: /s/ Xxxxx X. Xxxxxxx
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Its: Principal
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