1
EXHIBIT 10.10
ADVISORY AGREEMENT
This Advisory Agreement is entered into as of the _______ day of
_______, 1997, by and between AmSurg Corp., a Tennessee corporation
("AmSurg"), and ________________________ ("Advisor").
WITNESSETH:
WHEREAS, Advisor serves as the ___________________________________ of
American Healthcorp, Inc., a Delaware corporation ("AHC") and, prior to the
consummation of the Distribution referred to below, as _______________________
_________________ of AmSurg.
WHEREAS, pursuant to the terms of, and subject to the conditions set
forth in, the Distribution Agreement, dated as of March ___, 1997, by and
between AmSurg and AHC (the "Distribution Agreement"), AHC will distribute all
of the shares of AmSurg common stock owned by AHC to the holders of AHC's
common stock (the "Distribution") and, as a result, AmSurg will become an
independent, publicly traded corporation;
WHEREAS, effective upon the Distribution, AmSurg wishes to retain
Advisor to serve as Chairman of the Board of AmSurg following the Distribution.
NOW, THEREFORE, in consideration of the premises hereof and of the
mutual promises and agreements contained herein, the parties hereto, intending
to be legally bound, hereby agree as follows:
1. ADVISORY ARRANGEMENT. AmSurg shall hire Advisor as an
advisor, and Advisor hereby agrees to serve as an advisor to AmSurg, on and
after the date of the Distribution under the terms and conditions hereinafter
set forth. Advisor hereby resigns as________________________ of AmSurg
effective upon the Distribution. Advisor shall not be deemed an officer or
employee of AmSurg effective upon the Distribution.
2. DUTIES. Advisor shall provide advisory services to the senior
management of AmSurg in the areas of strategy, operations management and
organization development.
3. TERM. Subject to the terms and conditions set forth herein,
Advisor shall serve as an Advisor hereunder for a period beginning on the date
of the Distribution and ending at the end of the twenty-fourth month following
the Distribution.
4. BASE COMPENSATION. For all services rendered by Advisor,
AmSurg shall pay Advisor an aggregate base compensation of $__________ ("Base
Compensation"). The Base Compensation shall be paid to Advisor in the form of
shares (the "Shares") of Class A Common Stock, without par value, of AmSurg
(the "Class A Common Stock") as provided in this Section 4. The number of
Shares shall be determined by (i) dividing the Base Compensation by the dollar
amount per share of AmSurg common stock as determined in the last professional
valuation of the shares of AmSurg
2
common stock performed by a third party at the request of AmSurg prior to the
Distribution or, if a sale of AmSurg common stock (other than on exercise of a
stock option) occurs after the date of such valuation but prior to the
Distribution, the purchase price per share paid in such sale and (ii)
multiplying the resulting quotient by one-third. The Shares will be issued as
Restricted Stock (as such term is defined in the AmSurg Corp. 1997 Stock
Incentive Plan (the "Plan")) in accordance with Section 7 of the Plan,
effective upon the Distribution. Except as otherwise provided in Section 7 of
this Agreement or Section 10 of the Plan, one-third of the Shares will vest
upon the Distribution, one-third of the Shares will vest on the first
anniversary of the Distribution and the remaining one-third of the Shares will
vest on the second anniversary of the Distribution. Until the second
anniversary of the date of the Distribution, Advisor will not sell, assign or
transfer the Shares except Advisor may sell, assign or transfer vested Shares
(i) upon a Change in Control (as defined in the Plan), (ii) upon any Potential
Change in Control (as defined in the Plan) as a result of which awards under
the Plan become vested, (iii) upon any termination of the advisory relationship
under this Agreement or (iv) to the extent permitted by Section 13(h) of the
Plan.
5. ADDITIONAL COMPENSATION. While Advisor is serving as an
Advisor hereunder, Advisor will be eligible to receive compensation as an
Outside Director of AmSurg including awards of restricted stock.
6. EXPENSES. Advisor shall be reimbursed for ordinary and
necessary business expenses incurred by Advisor on behalf of AmSurg upon
presentation of vouchers in accordance with the usual and customary procedure
of AmSurg in relation to such expense items.
7. TERMINATION BY AMSURG. AmSurg may terminate the advisory
relationship hereunder at any time during the term of this Agreement by giving
written notice to Advisor. Upon any such termination, other than for Cause (as
hereinafter defined), all of the Shares will vest. "Cause" shall mean (i) a
felony conviction of Advisor or the failure of Advisor to contest prosecution
for a felony, (ii) conviction of a crime involving moral turpitude, or (iii)
willful and continued misconduct or gross negligence by Advisor in the
performance of his duties as an advisor to AmSurg.
8. TERMINATION BY ADVISOR. Advisor may terminate the advisory
relationship hereunder at any time upon sixty (60) days written notice to
AmSurg. Upon such termination by Advisor, all Shares not theretofore vested
will be forfeited.
9. CONFIDENTIAL INFORMATION. Advisor agrees not to disclose,
either during the time he is providing services to AmSurg or following
termination of the Advisory relationship hereunder, to any person (other than a
person to whom disclosure is necessary in connection with the performance of
his duties as a Advisor to AmSurg or to any person specifically authorized by a
general partner of AmSurg) any material confidential information concerning
AmSurg or any of its Affiliates, including, but not limited to, strategic
plans, investment strategy, research, financial analysis, contract terms,
financial costs, pricing terms, or business opportunities whether for existing,
new or developing businesses. Advisor and AmSurg acknowledge and agree that
any of the covenants contained in this Section 9 may be specifically enforced
through injunctive relief but such right to injunctive relief shall not
preclude AmSurg from other remedies which may be available to it.
Notwithstanding any
2
3
provision to the contrary or otherwise contained in this Agreement, the
agreement and covenants contained in this Section 9 shall not terminate upon
Advisor's termination of the advisory relationship hereunder or upon the
termination of this Agreement under any other provision of this Agreement.
10. NON-COMPETE COVENANT.
(a) During the term of this Agreement, Advisor agrees not
to enter into or engage in any phase of the business
conducted by AmSurg in any state in which AmSurg is
conducting business, either as an individual for his
own account, as a partner or joint venturer, or as an
employee, agent, officer, director, or substantial
shareholder of a corporation or otherwise. As of the
date of execution of this Agreement, the business
conducted by AmSurg was defined as single specialty
surgery centers, single specialty physician networks
and single specialty physician practices.
(b) During the term of this Agreement, Advisor agrees not
to directly or indirectly solicit business from any
entity, organization or person which has contracted
with AmSurg, which has been doing business with
AmSurg, or from which the Advisor knows or has reason
to know that AmSurg is going to solicit business.
(c) Advisor and AmSurg acknowledge and agree that any of
the covenants contained in this Section 10 may be
specifically enforced through injunctive relief, but
such right to injunctive relief shall not preclude
AmSurg from other remedies which may be available to
it.
11. INDEMNIFICATION. Advisor will be entitled to indemnification
as provided in the Indemnification Agreement, dated as of the date of the
Distribution, by and between AmSurg and Advisor, and in the Charter and Bylaws
of AmSurg.
12. NO ALIENATION OF BENEFITS. No interest of Advisor or his
spouse or any other beneficiary of Advisor under this Agreement, or any right
to receive any payment hereunder, shall be subject in any manner to sale,
transfer, assignment, pledge, attachment, garnishment, or other alienation or
encumbrance of any kind, nor may such interest or right to receive a payment or
distribution be taken, voluntarily or involuntarily, for the satisfaction of
the obligations or debts of, or other claims against, Advisor or his spouse or
other beneficiary, including claims for alimony, support, separate maintenance,
and claims in bankruptcy proceedings.
13. BENEFITS UNFUNDED. All rights of Advisor and his spouse or
other beneficiary under this Agreement shall at all times be entirely unfunded
and no provision shall at any time be made with respect to segregating any
assets of AmSurg for payment of any amounts due hereunder. Neither Advisor nor
his spouse or other beneficiary shall have any interest in or rights against
any specific assets of AmSurg, and Advisor and his spouse or other beneficiary
shall have only the rights of a general unsecured creditor of AmSurg.
3
4
14. NOTICES. Any notice required or permitted to be given under
this Agreement shall be sufficient if in writing and sent by registered or
certified mail to his residence in the case of Advisor, or to its principal
office in the case of AmSurg and the date of mailing shall be deemed the date
which such notice has been provided.
15. ASSIGNMENT. The rights and obligations of the AmSurg under
this Agreement shall inure to the benefit of and shall be binding upon the
successors and assigns of the AmSurg. The Advisor acknowledges that the
services to be rendered by him are unique and personal, and Advisor may not
assign any of his rights or delegate any of his duties or obligations under
this Agreement without the written consent of the Board of Directors of AmSurg.
16. ENTIRE AGREEMENT. This instrument contains the entire
agreement of the parties and supersedes all other prior agreements, employment
contracts and understandings, both written and oral, express or implied with
respect to the subject matter of this Agreement and may not be changed orally
but only by an agreement in writing signed by the party against whom
enforcement of any waiver, change, modification, extension or discharge is
sought.
17. APPLICABLE LAW. This Agreement shall be governed by the laws
of the State of Tennessee, without giving effect to the principles of conflicts
of law thereof.
18. HEADINGS. The sections, subjects and headings of this
Agreement are inserted for convenience only and shall not affect in any way the
meaning or interpretation of this Agreement.
19. COUNTERPARTS. This Agreement may be executed in counterparts,
each of which shall be deemed an original.
20. EFFECTIVENESS. This Agreement will not be effective if the
Distribution does not occur.
IN WITNESS WHEREOF, the parties have executed this Agreement on the
day and year first written above.
---------------------------------------
[Advisor]
AMSURG CORP.
4
5
By:
------------------------------------
Title:
---------------------------------
5
