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EXHIBIT 10.32
AGREEMENT
THIS AGREEMENT made this 26th day of June, 1996, by and between XXXXX
XXXXXX, M.D., individually (hereinafter referred to as "Xxxxxx"), XXXXXXX X.
XXXXXX, M.D., individually (hereinafter referred to as "Xxxxxx"), various
affiliated professional corporations affiliated with XXXXXX and XXXXXX (the
"Pinnacle Group"), XXXXX X. XXXXX, M.D., individually (hereinafter referred to
as "Tritt"), ATLANTA EAR NOSE & THROAT ASSOCIATES, P.C. ("Atlanta ENT"), XXXXX
X. XXXXX, M.D., individually (hereinafter referred to as "Xxxxx"),
OTOLARYNGOLOGY OF MEMPHIS, P.C. ("Otolaryngology of Memphis"), XXXXXX X.
XXXXXXXX, individually (hereinafter referred to as "Xxxxxxxx"), and PREMIER
HEALTHCARE ("Premier") (all collectively hereinafter referred to as the
"Parties").
W I T N E S S E T H:
WHEREAS, the Parties hereto desire to form a corporation under the
laws of either Delaware or Georgia, as determined by the Board of Directors in
order to engage in a national physician practice management company and any
other similar business that the Board of Directors decides to pursue; and
WHEREAS, the Parties are desirous of setting forth the terms and
conditions upon which said corporation will be organize;
NOW, THEREFORE, in consideration of the premises and mutual covenants
herein contained, it is agreed as follows:
1. FORMATION OF CORPORATION. The Parties shall form a
corporation under the tentative name of PHYSICIAN'S SPECIALTY CORP.
(hereinafter referred to as the "Corporation") for the general purpose of
operating a national physician practice management company and engaging in any
other lawful act or activity for which the Corporation may be organized under
the applicable Corporation Code.
2. CERTIFICATE OF INCORPORATION. The Certificate of
Incorporation of the Corporation shall be in a form agreed upon by all the
Parties hereto. It is anticipated that there shall be one class of common
stock with Forty Million ($40,000,000) shares to be authorized along with an
authorized class of "Blank Check" preferred stock. It is anticipated that
Atlanta ENT will own approximately twenty-two and 418/1000ths percent (22.418%)
of the outstanding common stock; Otolaryngology of Memphis will own thirteen
and 23/100ths percent (13.23%) of the outstanding common stock; and the
Pinnacle Group will own twenty-five and 541/1000ths percent (25.541%) of the
outstanding common stock. Notwithstanding anything contained herein to the
contrary, the ultimate allocation of equity among the three (3) aforementioned
Parties will be determined by XXXXXX XXXXXXXX & CO. (taking into account both
the proforma annualized contribution margin generated by each party to the
Corporation and the net worth of each party) on the basis of audited historical
data. Ten percent (10%) of the
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outstanding common stock will be reserved for management incentive stock
options, and Xxxxx and Premier will each receive five percent (5%) of the
authorized common stock. It is anticipated that eighteen and 75/100ths percent
(18.75%) of the authorized common stock shall be sold pursuant to a public
offering ("IPO") in which approximately Fifteen Million Dollars
($15,000,000.00) will be raised. It is also anticipated that Atlanta ENT, the
Pinnacle Group and Otolaryngology of Memphis (the "PC's") will enter into a
tax-free "C" reorganization agreement with the Corporation, and, as a result
thereof, these three (3) shareholders will receive and distribute to their
shareholders their share of the outstanding common stock. Both Xxxxx and
Premier shall each contribute approximately Five Hundred Dollars ($500.00) as
their investment for their common stock.
3. BY-LAWS. The By-laws of the Corporation to be adopted by the
Board of Directors and approved by the Shareholders shall be in a form agreed
upon by the undersigned Parties.
4. INITIAL FUNDING OF THE CORPORATION. As referred to above, it
is anticipated that there shall occur an IPO of approximately eighteen and
75/100ths percent (18.75%) of the outstanding common stock within a reasonable
time after incorporation in consideration of approximately Fifteen Million
Dollars ($15,000,000.00). In order to fund the soft costs that are expected,
select Parties have agreed to loan to the Corporation approximately Five
Hundred Thousand Dollars ($500,000.00) as follows:
(a) Atlanta ENT 34.1% $170,500.00
(b) Otolaryngology of Memphis 20.1% $100,500.00
(c) the Pinnacle Group 38.7% $193,500.00
(d) Xxxxxxxx 7.1% $ 35,500.00
It is anticipated that the Five Hundred Thousand Dollars
($500,000.00) of soft costs should cover that portion of the necessary fees for
accountants, auditors, lawyers, printers, and out-of-pocket expenses incurred
prior to the IPO. Each party loaning to the Corporation will receive a note
from the Corporation in the applicable amount with interest at prime rate which
shall be due and payable upon the IPO closing.
5. CONTROL. The Parties hereto agree that they shall vote their
stock so as to provide for the following:
(a) The initial Board of Directors shall be Xxxxx,
Xxxxxx, Xxxxx, Xxxxxxxx and three (3) outside Directors to be named.
(b) The initial officers of the Corporation shall be:
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Chairman Xxxxx
Vice Chairman Xxxxxxxx
The other officers, inclusive of a Chief Executive Officer and
Chief Financial Officer to be recruited by Premier, as agreed upon and ratified
by the other Parties.
6. UNDERWRITING EXPENSES. It is anticipated that the Corporation
within ninety (90) days of formation will enter into an agreement with
underwriters, including but not limited to, Barington Capital Group, L.P. to
underwrite the IPO pursuant to a preliminary term sheet to be attached hereto
as Exhibit A upon receipt and final negotiation.
7. FEES. It is agreed by the Parties that Premier shall receive
a fee of Two Hundred Fifty Thousand Dollars ($250,000.00) to be paid at the IPO
Closing. Premier shall be responsible for negotiating and delivering an
underwriting commitment; preparing a detailed financial model with supporting
assumptions; recruiting key executive staff, assisting in closing acquisitions
as agreed upon; managing accountants, auditors, underwriters, counsel and
process.
8. RATIFICATION OF AGREEMENT. The Parties shall vote their
shares so as to cause Corporation to adopt and ratify all the terms of this
Agreement.
9. MISCELLANEOUS.
(a) No Third-Party Beneficiaries. This Agreement shall
not confer any rights or remedies upon any Person other than the Parties and
their respective successors and permitted assigns.
(b) Entire Agreement. This Agreement (including the
documents referred to herein) constitutes the entire agreement among the
Parties and supersedes any prior understandings, agreements, or representations
by or among the Parties, written or oral, to the extent they related in any way
to the subject matter hereof.
(c) Succession and Assignment. This Agreement shall be
binding upon and inure to the benefit of the Parties named herein and their
respective successors and permitted assigns. No Party may assign either this
Agreement or any of his or its rights, interests, or obligations hereunder
without the prior written approval of the Corporation and all other Parties.
(d) Counterparts. This Agreement may be executed in one
or more counterparts, each of which shall be deemed an original but all of
which together will constitute one and the same instrument.
(e) Headings. The section headings contained in this
Agreement are inserted for convenience only and shall not affect in any way the
meaning or interpretation of this Agreement.
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(f) Notices. All notices, requests, demands, claims, and
other communications hereunder will be in writing. Any notice, request,
demand, claim, or other communication hereunder shall be deemed duly given if
(and then two business days after) it is sent by registered or certified mail,
return receipt requested, postage prepaid, and addressed to the intended
recipient as set forth below:
Xxxxx Xxxxxx, M.D.
0000 Xxxxxxxxx Xxxxxxxx Xxxx
Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Xxxxxxx X. Xxxxxx, M.D.
0000 Xxxxxxxxx Xxxxxxxx Xxxx
Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
THE PINNACLE GROUP
c/o Xxxxx Xxxxxx, M.D. and
Xxxxxxx X. Xxxxxx, M.D.
0000 Xxxxxxxxx Xxxxxxxx Xxxx
Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Xxxxx X. Xxxxx, M.D.
x/x Xxx Xxxxxxx Xxxxxxxx
0000 Xxxxxxxxx Xxxxxxxx Road
Suite 235
Atlanta, Georgia 30342
ATLANTA EAR, NOSE & THROAT ASSOCIATES, P.C.
x/x Xxx Xxxxxxx Xxxxxxxx
0000 Xxxxxxxxx Xxxxxxxx Road
Suite 235
Atlanta, Georgia 30342
Attention: Xxxxx X. Xxxxx, M.D.
Xxxxx X. Xxxxx, M.D.
0000 Xxxx Xxxxxx Xxxxx
Xxxxxxx, Xxxxxxxxx 00000
Attention: Xxxxx X. Xxxxx, M.D.
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Xxxxxx X. Xxxxxxxx
Xxxx, Xxxxxxxx & Co.
0000 Xxxxxxxxx Xxxx
Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
PREMIER HEALTHCARE
a Division of Xxxx, Xxxxxxxx & Co.
0000 Xxxxxxxxx Xxxx
Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxxx
Any Party may send any notice, request, demand, claim, or other communication
hereunder to the intended recipient at the address set forth above using any
other means (including personal delivery, expedited courier, messenger service,
telecopy, telex, ordinary mail, or electronic mail), but no such notice,
request, demand, claim, or other communication shall be deemed to have been
duly given unless and until it actually is received by the intended recipient.
Any Party may change the address to which notices, requests, demands, claims,
and other communications hereunder are to be delivered by giving the other
Parties notice in the manner herein set forth.
(g) Governing Law. This Agreement shall be governed by
and construed in accordance with the domestic laws of the State of Georgia
without giving effect to any choice or conflict of law provision or rule
(whether of the State of Georgia or any other jurisdiction) that would cause
the application of the laws of any jurisdiction other than the State of
Georgia.
(h) Amendments and Waivers. No amendment of any
provision of this Agreement shall be valid unless the same shall be in writing
and signed by the Corporation and all requisite parties. No wavier by any
Party of any default, misrepresentation, or breach of warranty or covenant
hereunder, whether intentional or not, shall be deemed to extend to any prior
or subsequent default, misrepresentation, or breach of warranty or covenant
hereunder or affect in any way any rights arising by virtue of any prior or
subsequent such occurrence.
(i) Severability. Any term or provisions of this
Agreement that is invalid or unenforceable in any situation in any jurisdiction
shall not affect the validity or enforceability of the remaining terms and
provisions hereof or the validity or enforceability of the offending term or
provisions in any other situation or in any other jurisdiction.
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(j) Expenses. Each of the Parties hereto will bear his
or its own costs and expenses (including legal fees and expenses) incurred in
connection with this Agreement and the transactions contemplated hereby.
(k) Construction. The Parties 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 by the Parties 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. Any reference to any federal, state, local, or
foreign statute or law shall be deemed also to refer to all rules and
regulations promulgated thereunder, unless the context requires otherwise. The
word "including" shall mean including without limitation. The Parties intent
that each representation, warranty, and covenant contained herein shall have
independent significant. 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) which the party has
not breached shall not detract from or mitigate the fact that the Party is in
breach of this first representation, warranty, or covenant.
(l) Incorporation of Exhibits Annexes, and Schedules.
The Exhibits, Annexes, and Schedules identified in this Agreement are
incorporated herein by reference and made a part hereof.
(m) Specific Performance. Each of the Parties
acknowledges and agrees that the other Parties would be damaged irreparably in
the event any of the provisions of this Agreement are not performed in
accordance with their specific terms or otherwise are breached. Accordingly,
each of the Parties agrees that the other Parties shall be entitled to any
injunction or injunctions to prevent breaches of the provisions of this
Agreement and to enforce specifically this Agreement and the terms and
provisions hereof in any action instituted in any court of the United States or
any state thereof having jurisdiction over the Parties and the matter, in
addition to any other remedy to which they may be entitled, at law or in
equity.
(n) Submission to Jurisdiction. Each of the Parties
submits to the jurisdiction of any state or federal court sitting in Atlanta,
Georgia, in any action or proceedings arising out of or relating to this
Agreement and agrees that all claims in respect of the action or proceeding may
be heard and determined in any action or proceeding so brought and waives any
bond, surety, or other security that might be required of any other party with
respect thereto. Each Party agrees that a final judgment in any action or
proceeding so brought shall be conclusive and may be enforced by suit on the
judgment or in any other manner provided by law or at equity.
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IN WITNESS WHEREOF, the Parties hereto have executed this
Agreement as of the day and year first above written.
THE PINNACLE GROUP
/s/ Xxxxx Xxxxxx By: /s/ Xxxxx Xxxxxx
------------------------------[SEAL] ----------------------------
XXXXX XXXXXX, M.D., individually XXXXX XXXXXX
/s/ Xxxxxxx X. Xxxxxx By: /s/ Xxxxxxx X. Xxxxxx
------------------------------[SEAL] -----------------------------
XXXXXXX X. XXXXXX, M.D. individually XXXXXXX X. XXXXXX
ATLANTA EAR, NOSE & THROAT ASSOCIATES, P.C.
/s/ Xxxxx X. Xxxxx By: /s/ Xxxxx X. Xxxxx
------------------------------[SEAL] -----------------------------
XXXXX X. XXXXX, M.D., individually XXXXX X. XXXXX
/s/ Xxxxx X. Xxxxx By: /s/ Xxxxx X. Xxxxx
------------------------------[SEAL] ------------------------------
XXXXX X. XXXXX, M.D., individually XXXXX X. XXXXX
PREMIER HEALTHCARE a Division of XXXX, Xxxxxxxx & Co,.
/s/ Xxxxxx X. Xxxxxxxx By: /s/ Xxxxxx X. Xxxxxxxx
------------------------------[SEAL] -------------------------------
XXXXXX X. XXXXXXXX, individually XXXXXX X. XXXXXXXX
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