EXHIBIT 10.49
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XXXXX XXXXX
000 XXXXX XXXX XXXX.
XXXXXXX, XXXXXXXXX 00000
July 25, 1998
Xx. Xxxxxxx X. Xxxxxxxxx
Chairman and Chief Executive Officer
Physicians Resource Group, Inc.
Three Lincoln Centre
0000 XXX Xxxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Dear Xx. Xxxxxxxxx:
This letter of intent ("LOI") is entered into between Physicians Resource
Group, Inc. ("PRG") and Xxxxx Xxxxx ("XXXXX"), on behalf of himself and other
providers and investors who may choose to join him, and summarizes the principal
terms and conditions of a proposed restructure of PRG, which will involve, among
other things, (1) the acquisition of at least 10,000,000 shares of the
outstanding stock of PRG (which may be increased to the extent necessary, up to
30,000,000 shares, so that all stockholders who wish to sell will have the
opportunity to do so) (the "STOCK ACQUISITION COMPONENT") for cash at a price of
$5.00 ("STOCK PURCHASE PRICE") by Stock Buyers (hereafter defined), (2) the
restructure and renegotiation of the management service agreements and other
contractual relationships ("PROVIDER CONTRACTS") with the physicians and other
providers affiliated with PRG (the "PROVIDERS"), (3) the resolution and
settlement of various accounts payable and receivable between PRG and several of
the Providers (the "ACCOUNT RESOLUTION"), (4) the transfer of operating assets
("PRACTICE ASSETS") of the ophthalmic and optometric practices affiliated with
PRG (the "PRACTICES") from PRG back to the Practices and (5) the transfer of an
interest in the ambulatory surgery centers in which PRG owns an interest
("ASCS") back to the Practices from which they were acquired (all of the
transactions reflected in (1)-(5) preceding are collectively called the
"COMPLETE TRANSACTION", and the transactions reflected in (2)-(5) preceding are
collectively called the "PROVIDER RESTRUCTURE"). The consideration flowing back
and forth between and among PRG, the Providers and the Practices in connection
with the proposals made herein are interdependent and reflect our recognition
that (a) there are numerous disputes about various issues between PRG, on the
one hand, and many Providers and Practices, on the other hand, and (b) Xxxxx and
other persons or entities who may join with Xxxxx, including some Providers and
investors who are not Providers, are willing to commit to and fund the Stock
Acquisition Component at the Stock Purchase Price only if PRG agrees to complete
the Provider Restructure (Xxxxx and any other persons and entities who join with
Xxxxx in committing to and funding the Stock Acquisition Component being herein
called the "STOCK BUYERS"). Promptly after the execution of this LOI, Xxxxx'x
counsel will commence drafting definitive agreements implementing the terms
summarized in this LOI, which must be acceptable in form and substance to PRG
and Xxxxx (definitive agreements which are acceptable to and executed by PRG and
Xxxxx are herein called the "DEFINITIVE AGREEMENTS").
The board of directors of PRG ("PRG BOARD") has authorized the execution of
this LOI by the Chief Executive Officer for the purpose of moving into the stage
of negotiating Definitive Agreements. Xxxxx and the other providers have no
desire to conclude a transaction unless a majority of the members of the PRG
Board believe in good faith that the stockholders and the bondholders of PRG are
treated fairly.
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A. BASIC TRANSACTIONS
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Based on the information currently known to Xxxxx, and subject to the terms and
conditions hereof and in the Definitive Agreements, it is anticipated that the
Definitive Agreements will include the following terms:
1. STOCK ACQUISITION COMPONENT. Promptly after the Definitive Agreements
are executed and the applicable conditions herein and therein have been
satisfied, the Stock Buyers would make the necessary filings, give the necessary
notices and take the appropriate steps to comply with federal and state
securities laws and commence a cash tender offer to purchase (the "TENDER
OFFER") at least 10,000,000 shares of the outstanding common stock of PRG ("PRG
STOCK"), with an option reserved to purchase more than 10,000,000 shares if
tendered, for a price of $5.00 per share. Providers will be encouraged to retain
any PRG Stock owned by them and not to tender it in the Tender Offer. It is
anticipated that, in connection with the various elements of the Provider
Restructure summarized in Sections A.2-A.5 below, a specific dollar amount (the
"PROVIDER RESTRUCTURE SETTLEMENT AMOUNT") will be agreed upon between Xxxxx (or
a committee selected by him) and each Provider which are "owed" by such Provider
for the elements of the Provider Restructure summarized in Sections A.2-A.5,
and, in addition to the transfer of the Practice Assets (and, in some cases, an
ASC interest) to such Provider contemplated by the Provider Restructure, such
Provider will be issued a number of new, presently unissued, common stock of PRG
at a price of $5.00 per share in amount equal to his Provider Restructure
Settlement Amount minus the amount paid for the stock acquired by such Provider
in the Tender Offer.
2. PROVIDER CONTRACTS RESTRUCTURE. The Service Agreement of each
Provider and/or Practice will be modified to (1) reduce the management fee, (2)
reduce the term, (3) limit the services to be provided by PRG and (4) make
other adjustments deemed in good faith by Xxxxx (or a committee of Providers
selected by Xxxxx) to be appropriate and reasonable.
3. ACCOUNT RESOLUTION. Resolution and settlement satisfactory to Xxxxx
(or a committee of Providers selected by Xxxxx) shall have been reached between
PRG and Most Providers (as used herein, "MOST PROVIDERS" means Providers and
Practices whose Adjusted Gross Income (as defined in the Internal Revenue Code)
for the year ended December 31, 1997 equals or exceeds 75% of the total Adjusted
Gross Income of all Providers and Practices. The amount agreed upon in the
resolution and settlement will be included as part of the Provider Restructure
Settlement Amount for each Provider.
4. TRANSFER OF PRACTICE ASSETS. As part of the consideration for the
Complete Transaction, PRG will transfer to the Providers their Practice Assets
assuming that each Provider has satisfied his Provider Restructure Settlement
Amount by purchasing stock in the Tender Offer and/or purchasing newly issued
stock of PRG, no additional amount will be owed to PRG.
5. TRANSFER OF INTERESTS IN ASCS. As part of the consideration for the
Complete Transaction, Providers and Practices who transferred all or an interest
in an ASC to PRG in the past will receive a transfer by PRG of a percentage
(anticipated to be between 25-33% to be determined by Xxxxx, in consultation
with selected Providers) interest in such ASC.
B. CONDITIONS PRECEDENT TO DEFINITIVE AGREEMENT EXECUTION
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1. DEFINITIVE AGREEMENTS. The Definitive Agreements must be satisfactory
in form and substance to Xxxxx and PRG, and, prior to execution, PRG must
receive the opinion of Xxxxxxx Xxxxx & Co. or another investment bank acceptable
to PRG and Xxxxx, that the Complete Transaction is fair to the stockholders of
PRG from a financial point of view.
2. CONDITIONS TO EXECUTION OF DEFINITIVE AGREEMENTS. Xxxxx does not
intend to execute any Definitive Agreements unless and until:
a. PROVIDER RESTRUCTURE. Xxxxx has received affirmation in
writing from Most Providers that they approve the Provider Restructure
and will execute documents reasonably acceptable to them implementing
the Provider Restructure.
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b. STOCK ACQUISITION COMPONENT.
i. TENDER COMMITMENTS. Xxxxx has received affirmation
from a number of Providers acceptable to Xxxxx that they do
not intend to and will not tender any of their PRG Stock in
the Tender Offer.
ii. STOCK BUYER PARTICIPATION. Xxxxx has received
commitments acceptable to him from Providers and/or other
persons and entities to purchase at least 5,000,000 shares
of PRG stock.
iii. FINANCING TENDER OFFER. Xxxxx has received
commitments for financing the Tender Offer in amounts and on
terms acceptable to him and the other Stock Buyers.
iv. DEBENTURES. Xxxxx is satisfied that (1) the
outstanding debentures of PRG are not in default and that
the consummation of the Complete Transactions will not
activate a right of the debenture-holders to accelerate the
maturity of the debentures or to demand that PRG repurchase
or redeem the debentures, or, alternatively, (2) if, in the
judgment of Xxxxx, the debentures are in default or there is
a substantial risk that the consummation of the Complete
Transactions WILL activate a right of the debenture-holders
to accelerate the maturity of the debentures or to demand
that PRG repurchase or redeem the debentures, Xxxxx has
commitments and/or assurances satisfactory to him (a) that
the existing debenture-holders will agree to an acceptable
restructure or (b) for refinancing the debentures on
acceptable terms.
c. DUE DILIGENCE. Xxxxx'x continued interest in this
transaction is dependent upon the satisfactory completion, to Xxxxx'x
sole and absolute satisfaction, of a due diligence investigation to be
conducted by the Stock Buyers and their representatives. PRG will
provide Xxxxx and other Stock Buyers and their representatives full
access, at all reasonable times, and in a manner so as not to
unreasonably interfere with the normal business operations of PRG, to
all premises, properties, personnel, books, records, contracts and
documents of or pertaining to PRG.
d. BOARD APPROVAL. The board of directors of PRG ("PRG BOARD")
shall have approved the execution of the Definitive Agreements and the
consummation of the Complete Transaction and shall have agreed to
recommend the approval of the consummation of the Provider Restructure
to the stockholders at a special meeting to be held with respect
thereto after completion of the Tender Offer.
C. DEFINITIVE AGREEMENTS
-------------------------
Among other things, the Definitive Agreements will include the following:
1. REPRESENTATIONS AND COVENANTS. PRG would make comprehensive
representations and warranties to the Stock Buyers, and would provide
comprehensive covenants, indemnities and other protections for the benefit of
the Stock Buyers.
2. CONDITIONS.
a. COMMENCEMENT OF TENDER OFFER. The commencement and
completion of the Tender Offer by the Stock Buyers will be subject to
the satisfaction of various conditions, including the execution of the
Definitive Agreements containing binding agreements by PRG and Most
Providers which implement the Provider Restructure.
b. CONSUMMATION OF COMPLETE TRANSACTION. The consummation of
the Complete Transaction will be subject to the satisfaction of
various conditions, including:
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i. THIRD PARTY CONSENTS. The receipt of all consents
of third parties, including lenders, debentureholders,
suppliers, customers, representatives, lessors and licensors
as may be required for the consummation of the Complete
Transaction.
ii. GOVERNMENT FILINGS AND APPROVALS. The receipt of
all consents or approvals of governmental agencies as may be
required for the consummation of the Complete Transaction,
including, if necessary, approval (or termination of the
waiting period) under the Xxxx-Xxxxx-Xxxxxx Antitrust
Improvements Act of 1976.
iii. NO MATERIAL CHANGES. The absence of any event or
prospective change in laws or regulations which, in Xxxxx'x
judgment, would materially and adversely affect the
business, assets or financial position or performance of
PRG.
iv. ABSENCE OF LITIGATION OR CLAIMS.
(1) GENERAL LITIGATION. (a) The absence of
any action, suit, or proceeding pending before any
court or quasi-judicial or administrative agency
of any federal, state, local, or foreign
jurisdiction or before any arbitrator wherein an
unfavorable injunction, judgment, order, decree,
ruling, or charge would (i) prevent consummation
of any of the transactions contemplated by the
Definitive Agreements, or (ii) cause any of the
transactions contemplated by the Definitive
Agreements to be rescinded following consummation,
(b) no such injunction, judgment, order, decree,
ruling, or charge shall be in effect, and (c) no
written notice of the initiation of any such
action, suit or proceeding shall have been
received by PRG.
(2) STOCKHOLDER LITIGATION. All stockholder
litigation and known claims against PRG shall have
been resolved to the satisfaction of Xxxxx.
(3) PROVIDER LITIGATION AND CLAIMS.
Providers whose aggregate Adjusted Gross Income
for the year ended December 31, 1997 equals or
exceeds 90% of the Adjusted Gross Income of all
Providers for the same period shall have resolved,
settled and released all claims against PRG, and
PRG shall have resolved, settled and released all
claims against them.
E. MISCELLANEOUS.
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1. Expenses. If Definitive Agreements are executed, Xxxxx will be
entitled to be reimbursed by PRG, and PRG agrees to promptly reimburse Xxxxx
from time to time upon request by Xxxxx, for costs and expenses (including
legal, financial, advisory and accounting fees and expenses) incurred by him on
behalf of the providers and investors who chose to join him in connection with
developing and entering into this LOI, negotiating and entering into the
Definitive Agreements and consummating (or attempting to consummate) the
Complete Transaction, but PRG shall have no responsibility therefor if
Definitive Agreements are not executed.
2. Non-Binding Letter of Intent. This LOI is not, and your acceptance
hereof does not constitute, an agreement by either of us or anyone else to
consummate the transactions contemplated hereby or any agreement to enter into a
formal written agreement with respect to the transactions contemplated hereby.
It is understood that this LOI is merely a statement of intent and, while the
parties hereto agree in principle to the contents hereof and intend to proceed
promptly and in good faith to work out the arrangements with respect to
consummating the transactions contemplated hereby, any legal obligations between
the parties hereto shall be only as are set forth in the Definitive Agreements
if and when executed by the parties, except that the provisions of this Section
E are intended to be binding and enforceable obligations of the parties hereto.
PRG may not, however, terminate this LOI prior to December 31, 1998, except
pursuant to Section E.3.
3. Termination by PRG. If (i) the Definitive Agreements have not been
executed by 11:59 p.m., on September 21, 1998, or if the Complete Transaction
has not been consummated by 11:59 p.m., on November 23, 1998,
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and (ii) the PRG Board has concluded in good faith that (A) the likelihood of
executing Definitive Agreements and consummating the Complete Transaction on
terms acceptable to the PRG Board is remote, and (B) the immediate cash needs of
PRG are such that sales of assets are necessary to preserve PRG (and there has
not been adequate response from Xxxxx and other Providers with respect to
accounts payable owed by them to PRG), and (iii) the PRG Board has notified
Xxxxx to such effect and given Xxxxx and a small group of Providers selected by
Xxxxx an opportunity to appear before the PRG Board to discuss the situation,
then, unless Xxxxx advances sufficient funds to cure the immediate cash needs,
at the option of either PRG or Xxxxx, this LOI may be terminated, and neither
party shall have any further obligation hereunder, except that PRG shall be
obligated to pay the breakup fee pursuant to Section E.6., if applicable, and
costs and expenses pursuant to Section E.1.
4. Notice of Other Offers. PRG will provide Xxxxx written notice if and
when it or any member of the PRG Board, officer of PRG or investment banker
retained by PRG or the PRG Board ("PRG REPRESENTATIVES") receives any offer(s)
from or on behalf of any potential buyer related to the potential sale of the
stock or any of the assets of PRG or the potential merger of PRG and/or any of
its subsidiaries with a third party (or a friendly tender for a significant part
of the stock of PRG by a third party) (any of the foregoing types of
transactions or a combination thereof being herein called a "Conflicting
Transaction"), Xxxxx will have the unilateral right to terminate this LOI and
the Definitive Agreements at any time on or after PRG receives any such offer(s)
if PRG or a PRG Representative provides non-public information to any such
offeror(s) unless it is an offer for the sale of assets permitted by the terms
of this LOI. The Definitive Agreements will contain a provision similar to the
foregoing sentence.
5. Standstill. Except as hereinafter provided, so long as this LOI is in
force, PRG agrees that it and its directors, officers, employees and affiliates
will not: (i) initiate discussions or exchanges of information with any
potential buyer related to a Conflicting Transaction nor enter into any
expression of interest, letter of intent, agreement in principle or definitive
agreement with respect to a Conflicting Transaction; or (ii), if contacted by a
potential buyer or merger candidate with respect to a Conflicting Transaction,
exchange information with such potential buyer or merger candidate nor enter
into any expression of interest, letter of intent, agreement in principle or
definitive agreement with respect thereto. NOTWITHSTANDING THE FOREGOING,
HOWEVER:
a. If PRG or any PRG Representative receives one or more
unsolicited expressions of interest or offers that contemplate(s) an
acquisition of substantially all of the stock or assets of PRG or
merger, consolidation or other combination with PRG and/or
substantially all of the subsidiaries of PRG, PRG reserves the right,
if the PRG Board believes, in good faith, based on the written advice
of a law firm of regional or national stature, it is necessary to do
so in order to satisfy the fiduciary duties and obligations of the
directors under applicable law, to consider each such expression of
interest or offer, provide information to the interested person or
offeror, negotiate with the interested person or offeror and enter
into an agreement for a Conflicting Transaction. The Definitive
Agreements will contain a provision similar to the foregoing sentence.
b. PRG may make sales of individual assets so long as any
single sale does not exceed $500,000 and the aggregate of all sales
while this LOI is in effect does not exceed $5,000,000; provided that,
in any event, the foregoing clause of this Section E.5.b. does not
permit PRG to, and PRG shall not exchange information with a potential
buyer or repurchaser of any Practice(s) or ASC(s) nor enter into any
expression of interest, letter of intent, agreement in principle or
definitive agreement to sell any Practice(s) or ASC(s) unless (i) the
PRG Board makes a determination that there is a cash emergency or
threat of default on a material obligation, in which case the Chief
Executive Officer of PRG shall notify Xxxxx and discuss the matter
with Xxxxx and a small group of Providers selected by Xxxxx, and, if
Xxxxx in good xxxxx xxxxx it necessary, convene a teleconference of
the other PRG Board members, for a full discussion of the issues, and
(ii) after such discussion(s), Xxxxx and PRG mutually consent to the
actions requested by PRG to solve such emergency or threat of default.
In any event, however, the elements of the Provider Restructure contemplated by
this LOI are unique and peculiar to the Complete Transaction contemplated
hereby, and no inference should be drawn that any Provider will be willing to
agree to the Provider Restructure terms with any other buyer or merger partner.
6. BREAK-UP FEE
a. PRIOR TO EXECUTION OF DEFINITIVE AGREEMENTS.
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i. Any of the following shall be deemed to be a
"BREAK-UP FEE TRIGGER EVENT":
(1) Prior to December 31, 1998, (i) PRG or a
PRG Representative initiates discussions or
exchanges of information with any potential buyer
related to a Conflicting Transaction or (ii) PRG
or a subsidiary, or a PRG Representative on behalf
or for the benefit of PRG or a subsidiary, enters
into any expression of interest, letter of intent,
agreement in principle or definitive agreement
with respect to a Conflicting Transaction, unless
it is permitted by Section E.5.b.
(2) Prior to December 31, 1998, (i) PRG or a
PRG Representative receives one or more
unsolicited expressions of interest or offers that
contemplate(s) an acquisition of substantially all
of the stock or assets of PRG or merger,
consolidation or other combination with PRG and/or
substantially all of the subsidiaries of PRG, and
(ii) PRG or a PRG Representative exchanges
information with the potential buyer before the
PRG Board has made the determination that permits
PRG to exchange the information pursuant to
Section E.5.a.
(3) Prior to December 31, 1998, (i) PRG or a
PRG Representative receives one or more
unsolicited expressions of interest or offers that
contemplate(s) an acquisition of substantially all
of the stock or assets of PRG or merger,
consolidation or other combination with PRG and/or
substantially all of the subsidiaries of PRG (or a
friendly tender for a significant part of the
stock of PRG by a third party), and (ii) after the
PRG Board has made the determination that permits
PRG to exchange the information pursuant to
Section E.5.a., PRG or a subsidiary, or a PRG
Representative on behalf of or for the benefit of
PRG or a subsidiary, enters into any expression of
interest, letter of intent, agreement in principle
or definitive agreement with respect to such
acquisition, merger, consolidation or other
combination.
ii. If a Break-up Fee Trigger Event occurs, then,
immediately after a demand by Xxxxx therefor, PRG will pay
the sum of $1,000,000 to a non-profit medical institution of
national stature designated by Xxxxx.
b. After Execution of Definitive Agreements. The Definitive
Agreements will contain a provision similar to Section E.6.b., except
that the amount payable by PRG shall be the sum of $10,000,000, which
shall be payable to Xxxxx for distribution among himself and other
providers and investors who have committed to become Stock Buyers.
7. CONDUCT OF BUSINESS. Prior to a termination of this LOI, PRG shall,
and shall cause its subsidiaries to, operate their business in the ordinary
course and refrain from any extraordinary transactions except to the extent
contemplated and permitted by Section E.4. The Definitive Agreements will
contain a provision similar to the foregoing sentence.
8. GOVERNING LAW. This LOI will be governed by and construed in
accordance with the substantive laws of the State of Texas.
9. BINDING ARBITRATION. In the event of a dispute arising out of or
relating to this LOI, or relating to any claim or cause of action which may
arise or be asserted under any federal, state, local or foreign statutory,
regulatory or common law, including, without limitation, claims with respect to
breach of contract, tort, obligation of good faith and fair dealing and
fiduciary duties, then, upon notice by any party to the other parties (an
"ARBITRATION NOTICE") and to American Arbitration Association ("AAA"), 13455
Xxxx Road, 0000 Xxx Xxxxxxxx Xxxxx, Xxxxxx, Xxxxx 00000 [telephone (972) 702-
8222); facsimile (000) 000-0000), the controversy or dispute shall be submitted
to a sole arbitrator who is independent and impartial, for binding arbitration
in Dallas, Texas, in accordance with AAA's Commercial Arbitration Rules (the
"RULES") as modified or supplemented hereby. The parties agree that they will
faithfully observe this LOI and
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the Rules and that they will abide by and perform any award rendered by the
arbitrator. The arbitration shall be governed by the Federal Arbitration Act, 9
U.S.C. Section 1-16 (or by the same principles enunciated by such Act in the
event it may not be technically applicable). The award or judgment of the
arbitrator shall be final and binding on all parties and judgment upon the award
or judgment of the arbitrator may be entered and enforced by any court having
jurisdiction. If any party becomes the subject of a bankruptcy, receivership or
other similar proceeding under the laws of the United States of America, any
state or commonwealth or any other nation or political subdivision thereof,
then, to the extent permitted or not prohibited by applicable law, any factual
or substantive legal issues arising in or during the pendency of any such
proceeding shall be subject to all of the foregoing mandatory mediation and
arbitration provisions and shall be resolved in accordance therewith. The fees
and expenses of the arbitrator will be shared equitably (as determined by the
arbitrator) by all parties engaged in the dispute or controversy.
10. COUNTERPARTS. This letter may be executed in one or more
counterparts, each of which will be deemed to be an original copy of this letter
and all of which, when taken together, will be deemed to constitute one and the
same agreement.
11. ENTIRE AGREEMENT. This LOI sets forth the entire understanding of the
parties hereto and supersedes all prior contracts, agreements, arrangements,
communications, discussions, representations and warranties, whether oral or
written, between the parties with respect to the subject matter hereof.
If the foregoing reflects your understanding, please so indicate by signing
below and returning a copy of this LOI to me. If you have not signed this LOI
and faxed a copy to my attorney, Xx. Xxxxxx X. Xxxxxx (to both 000-000-0000 and
972-239-4351), and to me (to both 000-000-0000 and 000-000-0000) on or before
5:00 p.m.,
Pacific Daylight Time, on Monday, July 27, 1998, I may, at my sole option, at
any time thereafter withdraw and terminate this LOI and the offers made hereby.
Very truly yours,
/s/ XXXXX XXXXX (facsimile signature authorized by Xxxxx Xxxxx)
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Xxxxx Xxxxx
ACCEPTED AND AGREED TO BY:
PHYSICIANS RESOURCE GROUP, INC.
By: /s/ Xxxxxxx Xxxxxxxxx
-------------------------------------------------
Xxxxxxx Xxxxxxxxx
Chairman, President & Chief Executive Officer
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