Exhibit 10.19
AGREEMENT
This Agreement, dated as of August 15, 1996, is by and between Golder,
Thoma, Xxxxxxx, Xxxxxx Fund IV, L.P., a Delaware limited partnership (the
"Investor"), and American Medserve Corporation, a Delaware corporation (the
"Company").
WHEREAS, the Investor is the holder of 56,500 shares of the Company's Class
A Common Stock, $0.01 par value per share ("Class A Common");
WHEREAS, the Company intends to effect, upon the requisite approval of its
directors and stockholders, a recapitalization (the "Recapitalization"),
pursuant to which (i) the Company will create a newly authorized class of Common
Stock to be designated as shares of Common Stock, $0.01 par value per share
("AMC Common Stock"), and (ii) each issued and outstanding share of the
Company's Class A Common and Class B Common Stock, $0.01 par value per share,
will be converted into and reclassified as a number of newly-issued shares of
AMC Common Stock;
WHEREAS, pursuant to the terms of the Company's Certificate of
Incorporation, as amended, upon the occurrence of any Public Offering (as
defined) the holder of the Company's Class A Common is entitled to a
preferential distribution in the amount of the lesser of (a) 25% of the net cash
proceeds from the offering (after deducting all discounts and reasonable
expenses) or (b) the amount of all Unpaid Yield (as defined) plus Unreturned
Original Cost (as defined) with respect to Class A Common.
WHEREAS, the Company is preparing to file with the Securities and Exchange
Commission a Registration Statement on Form S-1 with respect to an initial
public offering (the "Company IPO") of not less than $30 million aggregate
offering amount of AMC Common Stock.
WHEREAS, to assist the Company in effecting the Company IPO, the Company
and the Investor desire to enter into this Agreement.
NOW, THEREFORE, the Company and the Investor agree as follows:
1. AUTHORIZATION OF AMC COMMON STOCK. On or prior to the Closing Date
(as such term is defined in Section 3), the Company shall have duly authorized
the issuance and delivery to the Investor, pursuant to the terms of this
Agreement, the number of shares of AMC Common Stock to be issued and delivered
to the Investor on the Closing Date.
2. ISSUANCE AND DELIVERY OF AMC COMMON STOCK. Subject to the provisions
of this Agreement and on the basis of the representations and warranties
contained herein, on the Closing Date (as hereinafter defined), for and in
consideration of Investor's full release and discharge of any and all future
preferences with respect to distributions to be made with respect to any class
of the Company's equity securities, the Company will issue and deliver to the
Investor that number of shares of the AMC Common Stock (the "Investor AMC
Shares"), if any, obtained by dividing (a) the difference between the Investor
Preference (as such term is hereinafter defined) and the Actual IPO Preferential
Amount (as such term is hereinafter defined) by (b) the initial price to the
public of shares of AMC Common Stock offered in the Company IPO.
For purposes hereof, the following capitalized terms shall have the
respective meanings hereinafter set forth:
"Investor Preference" shall mean the sum of Unpaid Yield plus
Unreturned Original Cost, in each case as such amounts are calculated as of
the date of effectiveness of the Company's Registration Statement relating
to the Company IPO.
"Actual IPO Preferential Amount" shall mean the actual amount paid to
the Investor in connection with the Company IPO pursuant to Section 3A of
Part B of Article IV of the Company's Certificate of Incorporation, as
amended.
"Unpaid Yield" shall have the meaning set forth in ARTICLE IV of the
Company's Certificate of Incorporation as in effect on the date hereof.
"Unreturned Original Cost" shall have the meaning set forth in ARTICLE
IV of the Company's Certificate of Incorporation as in effect on the date
hereof.
3. CLOSING OF THE DELIVERY OF INVESTOR AMC COMMON. The delivery of the
Investor AMC Common (the "Closing") shall occur at the offices of Xxxxxxx,
Carton & Xxxxxxx, 000 Xxxxx Xxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000, and shall
occur at 9:00 a.m. local time on the closing date of the Company IPO (the
"Closing Date") or such other time and date as may be agreed upon by the Company
and the Investor. On the Closing Date the Company shall deliver to the Investor
a certificate for the Investor AMC Common to be issued and delivered to the
Investor, duly registered in such Investor's name or in the name of the
Investor's nominee.
4. REPRESENTATIONS AND WARRANTIES OF COMPANY. The Company represents and
warrants to the Investor as follows:
4.1 ORGANIZATION, STANDING AND QUALIFICATION. The Company is a
corporation duly organized, validly existing and in good standing under the
laws of the State of Delaware and has full power and authority to own,
lease and operate its properties and assets and to conduct its business as
presently conducted and proposed to be conducted hereby and to enter into
this Agreement.
4.2 VALIDITY OF INVESTOR AMC COMMON. The Investor AMC Common will be duly
authorized and, when issued and delivered in accordance with the terms of
this Agreement, will be duly and validly issued, and fully paid and non-
assessable.
4.3 AUTHORIZATION; APPROVALS. The execution, delivery and performance by
the Company of this Agreement have been duly authorized by all necessary
corporate action, and this Agreement has been duly executed and delivered
by the Company. This Agreement constitutes the valid and binding
obligations of the Company legally enforceable against the Company in
accordance with its terms.
4.4 EXEMPTION FROM REGISTRATION. In sole reliance upon representations
and warranties by the Investor in Section 5 hereof and without independent
investigation, the offer and sale of the AMC Common Stock are exempt from
the registration requirements of Section 5 of the Securities Act of 1933,
as amended.
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5. REPRESENTATIONS AND WARRANTIES OF INVESTOR. The Investor represents
and warrants to the Company as follows:
5.1 AUTHORIZATION. The Investor has full power and authority to enter
into and to perform this Agreement, and this Agreement has been duly
executed and delivered by it, and constitutes the valid and legally binding
obligation of the Investor, legally enforceable against the Investor in
accordance with its terms.
5.2 INVESTMENT REPRESENTATIONS. The Investor hereby represents and
warrants to the Company that it is acquiring the Investor AMC Shares for
its own account with the present intention of holding such securities for
purposes of investment, and that it has no intention of selling such
securities in a public distribution in violation of the securities laws.
5.3 ABSENCE OF REGISTRATION. The Investor understands that the shares of
Investor AMC Common to be issued hereunder have not been registered under
the Securities Act or any applicable state securities or "Blue Sky" laws,
and may be required to be held indefinitely, unless subsequently registered
under the Securities Act and such applicable Blue Sky laws, or an exemption
from such registration is available.
6. CONDITIONS TO CLOSING OF THE INVESTOR. The obligation of the Investor
on the Closing Date to accept delivery of the Shares required by Section 3
hereof shall be subject to each of the following conditions precedent, any one
or more of which may be waived by the Investor:
6.1 REPRESENTATIONS AND WARRANTIES. The representations and warranties
made by the Company herein shall be true and accurate on and as of the
Closing Date.
6.2 PERFORMANCE. The Company shall have performed and complied with all
agreements and conditions contained herein required to be performed or
complied with by it prior to or at the Closing.
6.3 CLOSING OF COMPANY IPO. The closing of the Company IPO shall have
contemporaneously occurred and been completed to the reasonable
satisfaction of the Company and the Investor.
7. CONDITIONS TO CLOSING OF COMPANY. The obligation of the Company on
the Closing Date to issue and deliver the Investor AMC Common to be issued and
delivered under this Agreement shall be subject to each of the following
conditions precedent, any one or more of which may be waived by the Company:
7.1 REPRESENTATIONS AND WARRANTIES. The representations and warranties
made herein by the Investor shall be true and accurate on and as of the
Closing Date and the Investor shall be deemed to have restated and
confirmed such representations and warranties as of the Closing Date by
authorizing or permitting the Closing to be effected without delivering in
writing to the Company a notice of change prior to the Closing.
7.2 CLOSING OF COMPANY IPO. The closing of the Company IPO shall have
contemporaneously occurred and been completed to the reasonable
satisfaction of the Company and the Investor.
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8. CERTIFICATE LEGEND. Certificates evidencing the Investor AMC Common
shall bear the following legend:
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR ANY STATE SECURITIES LAWS, AND MAY
NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED, UNLESS AND UNTIL REGISTERED
UNDER THE SECURITIES ACT OF 1933 AND SUCH APPLICABLE STATE LAW OR, IN THE
OPINION OF COUNSEL REASONABLY ACCEPTABLE TO THE ISSUER OF THESE SECURITIES,
SUCH OFFER, SALE OR TRANSFER DOES NOT VIOLATE THE PROVISIONS THEREOF OR
UNLESS SOLD PURSUANT TO RULE 144 OF THE SECURITIES ACT OF 1933.
9. STOCKHOLDERS AGREEMENT; REGISTRATION AGREEMENT The Company and the
Investor acknowledge and agree that the Investor AMC Common, when issued and
delivered in accordance with the terms hereof, shall (i) be and become subject
to the terms of a Stockholders Agreement, dated as of December 3, 1993, as the
same may be amended from time to time, and (ii) constitute GTCR Registrable
Securities, as such term is defined in that certain Registration Agreement,
dated as of August 23, 1996, by and among the Company, the Investor and certain
other stockholders of the Company.
10. NOTICES. All notices, requests, consents and other communications
provided for herein shall be in writing, and shall be mailed by certified mail,
postage prepaid, delivered by Federal Express or similar overnight courier, or
personally delivered, as follows:
(a) If to the Company:
American Medserve Corporation
000 Xxxxxx Xxxxxxxxx
Xxxxx 000
Xxxxxxxxxx, Xxxxxxxx 00000
with a copy to:
Xxxxxxx, Carton & Xxxxxxx
000 Xxxxx Xxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx X. Xxxx
(b) If to the Investor:
Golder, Thoma, Xxxxxxx, Xxxxxx Fund IV, L.P.
0000 Xxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx X. Xxxxxxx
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with a copy to:
Xxxxxxxx & Xxxxx
000 Xxxx Xxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx X. Xxxxxxx, Esq.
or such other addresses as each of the parties hereto may provide from time to
time in writing to the other parties. For purposes of this Agreement (i) in the
case of communications sent by mail, the date of mailing shall be deemed to be
the delivery date and (ii) in the case of communications sent by overnight
courier, the date next succeeding the date of transmission shall be deemed to be
the delivery date
11. MODIFICATIONS; WAIVER. Neither this Agreement nor any provision
hereof may be changed or waived unless effected by a writing executed and
delivered by the parties.
12. ENTIRE AGREEMENT. This Agreement contains the entire agreements
between the parties with respect to the transactions contemplated hereby, and
supersedes all negotiations, agreements, representations, warranties,
commitments, whether in writing or oral, prior to the date hereof.
13. APPLICATION TO SUCCESSOR HOLDERS. The provisions hereof shall inure
to the benefit of and be binding upon the successors, assigns, heirs, executors
and administrators of the parties hereto. In addition, and whether or not any
express assignment has been made, the provisions of this Agreement which are for
the benefit of the Investor or holders of AMC Common Stock are also for the
benefit of, and enforceable by, any subsequent holders of such shares, except
any subsequent holder who acquires any such security in a registered public
offering.
14. EXECUTION AND COUNTERPARTS. This Agreement may be executed in any
number of counterparts, each of which when so executed and delivered shall be
deemed an original, and such counterparts together shall constitute one
instrument.
15. GOVERNING LAW AND SEVERABILITY. This Agreement shall be governed by
the laws of the State of Delaware.
16. HEADINGS. The descriptive headings of the Sections hereof are
inserted for convenience only, and do not constitute a part of this Agreement.
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This Agreement is hereby executed as of the date first above written.
AMERICAN MEDSERVE CORPORATION
By: /s/ Xxxxxxx X. Xxxxxxxx
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Name: Xxxxxxx X. Xxxxxxxx
Title: Vice President - Business
Development
GOLDER, THOMA, XXXXXXX, XXXXXX
FUND IV, L.P.
By: GTCR IV. L.P.,
Its General Partner
By: Golder, Thoma, Cressey, Rauner,
Inc.,
Its General Partner
By: /s/ Xxxxx X. Xxxxxxx
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Name: Xxxxx X. Xxxxxxx
Title: Principal
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