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EXHIBIT 10.9
OPTION AGREEMENT
by and among
CENTRAL FLORIDA SURGICAL CENTERS, INC.,
C. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, M.D.,
ANTONIO CAOS, M.D.,
▇▇▇▇ ▇▇▇▇▇▇▇▇, M.D.,
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, M.D.,
▇▇▇▇▇▇ ▇. ▇▇▇▇▇, M.D.
and
PHC HOLDING CORPORATION
________________________________________________________________________________
OPTION AGREEMENT
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This Option Agreement (this "Agreement"), dated as of ______________, 1997,
is by and among Central Florida Surgical Centers, Inc., a Florida corporation
("ASC"), C. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, M.D., Antonio Caos, M.D., ▇▇▇▇ ▇▇▇▇▇▇▇▇, M.D.,
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, M.D. and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, M.D. (collectively, the
"Shareholders") and PHC Holding Corporation, a Georgia corporation ("PHC-SUB").
W I T N E S E T H :
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WHEREAS, the Shareholders are all of the shareholders of ASC;
WHEREAS, PHC-SUB is a wholly-owned subsidiary of Physician Health
Corporation, a Delaware corporation ("PHC");
WHEREAS, PHC-SUB desires to acquire an option to purchase an undivided
fifty-one percent (51%) interest in the assets of ASC from ASC, and ASC desires
to grant such an option to PHC-SUB; and
WHEREAS, ASC and Shareholders have agreed to grant to PHC-SUB an option to
acquire an undivided fifty-one percent (51%) interest in all of the assets of
ASC on the terms and subject to the conditions set forth herein.
NOW, THEREFORE, in consideration of the foregoing, the mutual
representations, warranties and covenants herein contained, and other good and
valuable consideration, the receipt and adequacy of which are hereby
acknowledged, and on the terms and subject to the conditions herein set forth,
the parties hereto hereby agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1. DEFINITIONS. As used in this Agreement, the following terms
shall have the meanings set forth below:
(a) "Acquisition" shall have the meaning set forth in Section 3.1.
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(b) "Acquisition Proposal" shall have the meaning set forth in Section 6.3.
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(c) "Affiliate" with respect to any person shall mean a person that
directly or indirectly through one or more intermediaries, controls, or is
controlled by or is under common control with, such person.
(d) "Confidential Information" shall mean all trade secrets and other
confidential and/or proprietary information of the particular person, including
information derived from reports, investigations, research, work in progress,
codes, marketing and sales programs, financial projections, cost summaries,
pricing formulae, contract analyses, financial information, projections, maps,
confidential filings with any state or federal agency, and all other concepts,
methods of doing business, ideas, materials or information prepared or performed
for, by or on behalf of such person by its employees, officers, directors,
agents, representatives, or consultants.
(e) "Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended.
(f) "Execution Date" shall mean the date that the Purchase Agreement shall
be duly executed and delivered by all parties thereto.
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(g) "Exercise Date" shall mean the date on which notice of the exercise of
the Option is given.
(h) "Exercise Period" shall mean the period commencing on August 1, 1998
and ending six (6) months thereafter, unless otherwise extended as provided
hereunder.
(i) "Material Adverse Effect" shall mean a material adverse effect on ASC's
business, operations, condition (financial or otherwise), the results of
operations, either individually or in the aggregate in consideration of all
relevant facts and circumstances.
(j) "Option" shall have the meaning set forth in Section 2.1.
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(k) "Person" shall mean any natural person, corporation, partnership, joint
venture, association, group, organization or other entity.
(l) "Purchase Agreement" shall have the meaning set forth in Section 3.1.
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(m) "Securities Act" shall mean the Securities Act of 1933, as amended.
(n) "Termination Date" shall mean the date this Agreement is terminated in
accordance with its terms.
ARTICLE II
THE OPTION
SECTION 2.1. GRANT OF OPTION. Subject to the terms and conditions of
this Agreement, ASC and Shareholders hereby grant to PHC-SUB the irrevocable and
exclusive right and option to acquire an undivided fifty-one percent (51%)
interest in the assets of ASC (the "Option").
SECTION 2.2. TIME AND MANNER OF EXERCISE. The Option shall become
immediately exercisable on August 1, 1998 and shall continue to be exercisable
by PHC-SUB until the expiration of the Exercise Period. PHC-SUB may exercise
the Option at any time during the Exercise Period by giving written notice
thereof to ASC (the "Exercise Notice").
SECTION 2.3. CONDITIONS TO EXERCISE. The Option may not be exercised
unless:
(a) All representations and warranties of PHC-SUB contained herein shall be
true and correct in all material respects; and
(b) The exercise of the Option and the transactions contemplated by the
Purchase Agreement shall not be prohibited by law, rule or regulation.
SECTION 2.4. CONSIDERATION. The consideration to be paid by PHC-SUB for
the grant of this Option is Five Hundred Thousand Dollars $500,000 (the "Option
Fee"), payable in immediately available funds upon the execution of this
Agreement.
In the event PHC-SUB exercises the Option prior to the expiration of the
Exercise Period and closes the Acquisition pursuant to the Purchase Agreement
within ninety (90) days after exercising the Option, the Option Fee paid
pursuant to this Section 2.4 shall be credited toward the total purchase price
due under the Purchase Agreement. In the event PHC-SUB fails to exercise the
Option prior to the expiration of the Exerc ise Period or timely exercises the
Option but is otherwise unable to close the Acquisition pursuant to the Purchase
Agreement within ninety (90) days after exercising the Option, the Option Fee
paid pursuant to this Section 2.4 shall be retained by or for the account of ASC
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as liquidated damages (and forfeited by PHC-SUB). The Option Fee is a bona fide
provision for liquidated and agreed
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upon damages and is not a penalty, and PHC-SUB acknowledges and agrees that by
reason of ASC binding itself to this Agreement, ASC will have sustained damages
if PHC-SUB does not exercise its option to purchase such assets within the
Exercise Period, which damages shall be substantial but will be difficult if not
incapable of determination with mathematical precision and, therefore, this
provision for liquidated and agreed upon damages has been incorporated in this
Agreement as a bona fide provision beneficial to both parties. Notwithstanding
the foregoing, in the event PHC-SUB, for the specific reasons set forth in
Subsections 2.4(a)-(e), below, does not exercise the Option prior to the
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expiration of the Exercise Period (or close the Acquisition pursuant to the
Purchase Agreement within ninety (90) days after timely exercising the Option),
the Option Fee shall be returned by ASC to PHC-SUB within sixty (60) days after
the earlier of (i) receipt by the ASC of a written notice from PHC-SUB
requesting the return of the Option Fee or (ii) the expiration of the Exercise
Period:
(a) If, for any reason, other than solely as a result of actions taken by
PHC or any affiliate of PHC, the Agency for Health Care Administration of the
State of Florida, the Health Care Financing Administration or any other
applicable governmental entity denies the application of PHC-SUB for transfer of
ownership of the ASC assets and such application is not subsequently approved by
such entity within one hundred twenty (120) days from the date of the initial
denial;
(b) Two (2) or more Shareholder's licenses to practice medicine or other
required licenses or certifications are suspended or revoked, and neither
Shareholder's license is reinstated within ninety (90) days of the suspension or
revocation;
(c) ASC's license to conduct its business or other required licensure or
certification is suspended or revoked, and such license or certification is not
reinstated within one hundred twenty (120) days of the suspension or
revocation;
(d) ASC or any Shareholder materially breaches the terms of this Agreement
and such breach is not cured by ASC or the Shareholder within forty-five (45)
days after receipt of a written notice from PHC-SUB specifying the alleged
breach; or
(e) The assets of ASC are destroyed pursuant to an act of God or
destruction as set forth in Section 2.5, below, and such assets are not replaced
or rebuilt such that ASC is fully operational before the end of the Exercise
Period, including any extension to the Exercise Period pursuant to Section 2.5.
SECTION 2.5. ACT OF GOD OR DESTRUCTION. In the event of the partial or
complete destruction of the assets of ASC because of any act of God, fire,
earthquake, flood, natural disaster, riot, war or other act of destruction,
Shareholders and ASC shall immediately replace or rebuild such assets, as is
appropriate. The Exercise Period shall be extended by the number of days in
which ASC is inoperable due to such destruction, however, such extension shall
not exceed one (1) year.
ARTICLE III
THE ACQUISITION
SECTION 3.1. FORM OF ACQUISITION. The acquisition of an undivided fifty-
one percent (51%) interest in the assets of ASC pursuant to the Option (the
"Acquisition") shall be effected pursuant to the terms and subject to the
conditions set forth in an asset purchase agreement in substantially the same
form as attached hereto as Annex I (the "Purchase Agreement"), which form may be
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revised only by written agreement of the parties.
SECTION 3.2. EXECUTION OF PURCHASE AGREEMENT. Within forty-five (45)
days, unless otherwise mutually agreed, following the Exercise Date, the parties
hereto shall duly execute and deliver the Purchase Agreement.
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SECTION 3.3. DUE DILIGENCE. On the Exercise Date, ASC shall use its best
efforts to provide PHC-SUB with a complete response to the Due Diligence
Questionnaire attached hereto as Annex II.
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ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF ASC AND THE SHAREHOLDERS
ASC and the Shareholders, jointly and severally, represent and warrant that
the following are true and correct as of the date hereof and will be true and
correct in all material respects on the Exercise Date:
SECTION 4.1. ORGANIZATION AND GOOD STANDING; QUALIFICATION. On the date
hereof, ASC is a corporation duly organized, validly existing and in good
standing under the laws of its state of incorporation, with all requisite
corporate power and authority to carry on the business in which it is engaged,
to own the properties it owns, to execute and deliver this Agreement and to
consummate the transactions contemplated hereby. On the Exercise Date, ASC will
be a corporation duly organized, validly existing and in good standing under the
laws of its state of incorporation, with all requisite corporate power and
authority to carry on the business in which it is engaged, to own the properties
it owns and to consummate the transactions contemplated thereby. ASC is not
qualified or licensed to do business in any other jurisdiction. ASC does not
have any assets, employees or offices in any state other than the state of its
incorporation.
SECTION 4.2. AUTHORIZATION AND VALIDITY. This Agreement has been duly
executed and delivered by ASC and the Shareholders and to the extent that the
terms and conditions hereof create any obligation on behalf of ASC and the
Shareholders, constitutes legal, valid and binding obligations of ASC and the
Shareholders enforceable against ASC and the Shareholders in accordance with
their respective terms, except as may be limited by applicable bankruptcy,
insolvency or similar laws affecting creditors' rights generally or the
availability of equitable remedies. The person executing this Agreement on
behalf of ASC has been duly authorized to execute and deliver this Agreement and
to consummate the transactions contemplated hereby. Each Shareholder has the
legal capacity to enter into and perform this Agreement and the Purchase
Agreement.
SECTION 4.3. NO VIOLATION. Neither the execution, delivery or performance
of this Agreement or the Purchase Agreement nor the consummation of the
transactions contemplated hereby or thereby will (a) conflict with, or result in
a violation or breach of the terms, conditions or provisions of, or constitute a
default under the Articles of Incorporation or Bylaws of ASC or any agreement,
indenture or other instrument under which ASC or the Shareholders are bound or
to which any of the assets of ASC are subject, or result in the creation or
imposition of any security interest, lien, charge or encumbrance upon any of the
assets of ASC, or (b) except as would not result in a Material Adverse Effect,
violate or conflict with any judgment, decree, order, statute, rule or
regulation of any court or any public, governmental or regulatory agency or
body.
SECTION 4.4. CONSENTS. Except as may be required under the Exchange Act,
the Securities Act, state securities laws, the Florida General Business
Corporation Act or as required under the ▇▇▇▇-▇▇▇▇▇ ▇▇▇▇▇▇ Act, or as set forth
in Schedule 4.4, no consent, authorization, approval, permit or license of, or
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filing with, any governmental or public body or authority, any lender or lessor
or any other person or entity is required to authorize, or is required in
connection with, the execution, delivery and performance of this Agreement or
the Purchase Agreement on the part of ASC or the Shareholders.
SECTION 4.5. FINDER'S FEE. ASC and the Shareholders have not incurred
any obligation for any finder's, broker's or agent's fee in connection with the
transactions contemplated hereby.
SECTION 4.6. COMPLIANCE WITH LAWS. To the best of ASC's and each
Shareholder's knowledge, ASC and each Shareholder has complied with all
applicable laws, regulations and licensing requirements and has filed with the
proper authorities all necessary statements and reports. There are no existing
violations by ASC or the Shareholders of any federal, state or local law or
regulation that would, individually or in the aggregate, result in a Material
Adverse Effect. Except as set forth on Schedule 4.6, the transactions
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contemplated by this Agreement or the Purchase Agreement
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will not result in a default under or a breach or violation of, or adversely
affect the rights and benefits afforded by any such licenses, franchises,
permits or government authorizations, except for any such default, breach or
violation that would not, individually or in the aggregate, have a Material
Adverse Effect. Except as set forth on Schedule 4.6, neither ASC nor any
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Shareholder has received any notice from any federal, state or other
governmental authority or agency having jurisdiction over its properties or
activities, or any insurance or inspection body, that ASC's operations or any of
its properties, facilities, equipment, or business practices fail to comply with
any applicable law, ordinance, regulation, building or zoning law, or
requirement of any public or quasi-public authority or body except where failure
to do so would not, individually or in the aggregate, have a Material Adverse
Effect.
SECTION 4.7. INSURANCE. Shareholders and ASC shall have adequate
policies of property, casualty and other insurance in effect sufficient to
replace the assets of ASC in the event of any damage or destruction thereto, and
will keep such insurance policies in effect with respect to all of the assets of
ASC for the duration of the Exercise Period.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF PHC-SUB
PHC-SUB represents and warrants that the following are true and correct as
of the date hereof and will be true and correct in all material respects on the
Exercise Date:
SECTION 5.1. ORGANIZATION AND GOOD STANDING. PHC-SUB is a corporation
duly organized, validly existing and in good standing under the laws of the
state of its incorporation, with all requisite corporate power and authority to
carry on the business in which it is engaged, to own the properties it owns, to
execute and deliver this Agreement and to consummate the transactions
contemplated hereby. On the Exercise Date, PHC-SUB will be a corporation, duly
organized, validly existing and in good standing under the laws of its state of
incorporation, with all requisite power and authority to carry on the business
in which it is engaged, to own the properties it owns and to consummate the
transactions contemplated thereby. As of the date of execution of this
Agreement, and on the Exercise Date, PHC-SUB will be duly qualified to conduct
business in the state of Florida.
SECTION 5.2. AUTHORIZATION AND VALIDITY. The execution, delivery and
performance by PHC-SUB of this Agreement and the Purchase Agreement and the
consummation of the transactions contemplated hereby have been duly authorized
by PHC-SUB. This Agreement has been duly executed and delivered by PHC-SUB and
constitutes the legal, valid and binding obligation of PHC-SUB, enforceable
against PHC-SUB in accordance with its terms, except as may be limited by
applicable bankruptcy, insolvency or similar laws affecting creditors' rights
generally or the availability of equitable remedies.
SECTION 5.3. NO VIOLATION. Neither the execution, delivery or
performance of this Agreement or the Purchase Agreement nor the consummation of
the transactions contemplated hereby or thereby will (a) conflict with, or
result in a violation or breach of the terms, conditions and provisions of, or
constitute a default under, the Certificate of Incorporation or Bylaws of PHC-
SUB or any agreement, indenture or other instrument under which PHC-SUB is
bound, or (b) violate or conflict with any judgment, decree, order, statute,
rule or regulation of any court or any public, governmental or regulatory agency
or body having jurisdiction over PHC-SUB or the properties or assets of PHC-SUB.
SECTION 5.4. CONSENTS. Except as may be required under the Exchange Act,
the Securities Act, state security laws, the Florida General Business
Corporation Act or as required under the ▇▇▇▇-▇▇▇▇▇ ▇▇▇▇▇▇ Act, or as set forth
on Schedule 5.4, no consent, authorization, approval, permit or license of, or
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filing with, any governmental or public body or authority, any lender or lessor
or any other person is required to authorize, or is required in connection with,
the execution, delivery and performance of this Agreement or the Purchase
Agreement on the part of PHC-SUB.
SECTION 5.5. FINDER'S FEE. PHC-SUB has not incurred any obligation for
any finder's, broker's or agent's fee in connection with the transactions
contemplated hereby.
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ARTICLE VI
COVENANTS OF ASC AND THE SHAREHOLDERS
ASC and the Shareholders, jointly and severally, agree that between the
date hereof and the earlier of the Execution Date or the Termination Date:
SECTION 6.1. ACCESS. ASC and the Shareholders shall, at reasonable times
during normal business hours and on reasonable notice, permit PHC-SUB and its
authorized representatives reasonable access to, and make available for
inspection, all of the assets and business of ASC, including its employees,
customers and suppliers, and permit PHC-SUB and its authorized representatives
to inspect, and at PHC-SUB's sole cost and expense, make copies of all
documents, records and information with respect to the affairs of ASC as PHC-SUB
and its representatives may request, all for the sole purpose of permitting PHC-
SUB to become familiar with the business and assets and liabilities of ASC.
SECTION 6.2. NOTIFICATION OF CERTAIN MATTERS. ASC and the Shareholders
shall promptly inform PHC-SUB in writing of any material adverse change in ASC's
condition (financial or otherwise), operations, assets, liabilities, business or
prospects.
SECTION 6.3. ACQUISITION PROPOSALS. ASC and the Shareholders agree that
from the date of this Agreement through the expiration of the Exercise Period
(a) that neither the Shareholders, nor ASC, nor any of its respective officers
and directors shall, and ASC and the Shareholders shall direct and use their
best efforts to cause ASC's employees, agents and representatives not to,
initiate, solicit or encourage, directly or indirectly, any inquiries or the
making or implementation of any proposal or offer (including, without
limitation, any proposal or offer to its shareholders) with respect to a merger,
acquisition, consolidation or similar transaction involving, or any purchase of,
all or any significant portion of the assets or any equity securities of, ASC
(any such proposal or offer being hereinafter referred to as an "Acquisition
Proposal") or engage in any negotiations concerning, or provide any Confidential
Information or data to, or have any discussions with, any person relating to an
Acquisition Proposal, or otherwise facilitate any effort or attempt to make or
implement an Acquisition Proposal; (b) that the Shareholders and ASC will
immediately cease and cause to be terminated any existing activities,
discussions or negotiations with any parties conducted heretofore with respect
to any of the foregoing and each will take the necessary steps to inform the
individuals or entities referred to in the first sentence hereof of the
obligations undertaken in this Section 6.3; and (c) that ASC and the
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Shareholders will notify PHC-SUB immediately if any such inquiries or proposals
are received by, any such information is requested from, or any such
negotiations or discussions are sought to be initiated or continued with, ASC or
the Shareholders.
SECTION 6.4. INSURANCE. Shareholders and ASC have adequate policies of
property, casualty and other insurance in effect sufficient to replace the
assets of ASC in the event of any damage or destruction thereto, and will keep
such insurance policies in effect with respect to all of the assets of the ASC
for the duration of the Exercise Period.
SECTION 6.5. BUSINESS OPERATIONS. ASC and the Shareholders shall operate
the business of ASC in the ordinary course and will not introduce any new method
of management or operation. ASC and the Shareholders shall use their best
efforts to preserve the business of ASC intact, to retain its present customers
and suppliers so that they will be available after the closing of the Purchase
Agreement. ASC and Shareholders shall not take any action that could reasonably
be expected to have, or does have, a Material Adverse Effect on the condition
(financial or otherwise), operations, assets, liabilities, business or prospects
of ASC or take or fail to take any action that would cause or permit the
representations made in Article IV to be inaccurate on the Execution Date or at
the time of the closing of the Purchase Agreement or preclude ASC or
Shareholders from making such representations and warranties on the Execution
Date or at the time of the closing of the Purchase Agreement.
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ARTICLE VII
TERMINATION
SECTION 7.1. TERMINATION. This Agreement shall automatically terminate
upon the expiration of the Exercise Period (including any extensions thereto as
provided herein) if prior thereto PHC-SUB has not exercised the Option. In
addition, this Agreement may be terminated at any time by mutual agreement of
all parties hereto.
ARTICLE VIII
NONDISCLOSURE OF CONFIDENTIAL INFORMATION
SECTION 8.1. COVENANT NOT TO DISCLOSE. ASC and the Shareholders recognize
and acknowledge that they had in the past, currently have, and in the future may
possibly have, access to certain Confidential Information of PHC-SUB that is a
valuable, special and unique asset of PHC-SUB's business. PHC-SUB acknowledges
that it has had in the past, currently has, and in the future may possibly have,
access to certain Confidential Information of ASC that is a valuable, special
and unique asset of ASC's business. ASC and the Shareholders, on the one hand,
and PHC-SUB, on the other hand, agree that they will not disclose such
Confidential Information to any person, firm, corporation, association or other
entity for any purpose or reason whatsoever, except (a) to authorized
representatives of PHC-SUB or ASC and the Shareholders, and (b) to counsel and
other advisers to PHC-SUB or to ASC and the Shareholders, provided that such
advisers (other than counsel) agree to the confidentiality provisions of this
Section 8.1, unless (i) such information becomes known to the public
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generally through no fault of ASC, the Shareholders or PHC-SUB, as the case may
be, (ii) disclosure is required by law or the order of any governmental
authority under color of law, provided, that prior to disclosing any information
pursuant to this clause (ii), the disclosing party shall, if possible, give
prior written notice thereof to the other parties and provide such other parties
with the opportunity to contest such disclosure, (iii) the disclosing party
reasonably believes that such disclosure is required in connection with the
defense of a lawsuit against the disclosing party, or (iv) the disclosing party
is the sole and exclusive owner of such Confidential Information as a result of
the consummation of the transactions contemplated by the Merger Agreement, the
Acquisition or otherwise.
SECTION 8.2. DAMAGES. Because of the difficulty of measuring economic
losses as a result of the breach of the covenants contained in Section 8.1, and
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because of the immediate and irreparable damage that would be caused for which
they would have no other adequate remedy, each party hereto agrees that, in the
event of a breach by any of them of the foregoing covenant, the covenant may be
enforced against them by injunctions and restraining orders. Nothing herein
shall be construed as prohibiting any party from pursuing any other available
remedy for such breach or threatened breach, including the recovery of damages.
SECTION 8.3. SURVIVAL. The obligations of the parties under this Article
shall survive the termination of this Agreement.
ARTICLE IX
MISCELLANEOUS
SECTION 9.1. AMENDMENT; WAIVERS. This Agreement may be amended, modified
or supplemented only by an instrument in writing executed by all the parties
hereto. Any waiver of any terms and conditions hereof must be in writing, and
signed by the parties hereto. The waiver of any of the terms and conditions of
this Agreement shall not be construed as a waiver of any other terms and
conditions hereof.
SECTION 9.2. ASSIGNMENT. Neither this Agreement nor any right created
hereby or in any agreement entered into in connection with the transactions
contemplated hereby shall be assignable by any party hereto, except by PHC-SUB
to an Affiliate or a senior creditor of PHC-SUB in which case PHC-SUB shall
remain obligated for all obligations of PHC-SUB contained herein.
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SECTION 9.3. PARTIES IN INTEREST; NO THIRD PARTY BENEFICIARIES. Except
as otherwise provided herein, the terms and conditions of this Agreement shall
inure to the benefit of and be binding upon the respective heirs, legal
representatives, successors and permitted assigns of the parties hereto.
Neither this Agreement nor any other agreement contemplated hereby shall be
deemed to confer upon any person not a party hereto or thereto any rights or
remedies hereunder or thereunder.
SECTION 9.4. ENTIRE AGREEMENT. This Agreement and the agreements
contemplated hereby constitute the entire agreement of the parties regarding the
subject matter hereof, and supersede all prior agreements and understandings,
both written and oral, among the parties, or any of them, with respect to the
subject matter hereof.
SECTION 9.5. WAIVER. No waiver by any party of any default or breach by
another party of any representation, warranty, covenant or condition contained
in this Agreement shall be deemed to be a waiver of any subsequent default or
breach by such party of the same or any other representation, warranty, covenant
or condition. No act, delay, omission or course of dealing on the part of any
party in exercising any right, power or remedy under this Agreement or at law or
in equity shall operate as a waiver thereof or otherwise prejudice any of such
party's rights, powers and remedies. All remedies, whether at law or in equity,
shall be cumulative and the election of any one or more shall not constitute a
waiver of the right to pursue other available remedies.
SECTION 9.6. COSTS, EXPENSES AND LEGAL FEES. Whether or not the
transactions contemplated hereby are consummated, each party hereto shall bear
its own costs and expenses (including attorneys' fees), except that each party
hereto agrees to pay the costs and expenses (including reasonable attorneys'
fees and expenses) incurred by the other parties in successfully (a) enforcing
any of the terms of this Agreement or (b) proving that another party breached
any of the terms of this Agreement.
SECTION 9.7. SPECIFIC PERFORMANCE. The parties hereto acknowledge that a
refusal by any party hereto to consummate the transactions contemplated hereby
will cause irreparable harm to the other parties, for which there may be no
adequate remedy at law and for which the ascertainment of damages would be
difficult. Therefore, each party hereto shall be entitled, in addition to, and
without having to prove the inadequacy of, other remedies at law, to specific
performance of this Agreement, as well as injunctive relief (without being
required to post bond or other security).
SECTION 9.8. GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS
OF THE PARTIES HERETO SHALL BE GOVERNED BY AND CONSTRUED AND ENFORCED IN
ACCORDANCE WITH THE SUBSTANTIVE LAWS (BUT NOT THE RULES GOVERNING CONFLICTS OF
LAWS) OF THE STATE OF FLORIDA.
SECTION 9.9. NO OBLIGATION TO EXERCISE OPTION. Notwithstanding the
provisions of Section 9.7, this Agreement does not impose any obligation upon
PHC-SUB to exercise the Option.
SECTION 9.10. CAPTIONS. The captions in this Agreement are for convenience
of reference only and shall not limit or otherwise affect any of the terms or
provisions hereof.
SECTION 9.11. GENDER AND NUMBER. When the context requires, the gender
of all words used herein shall include the masculine, feminine and neuter and
the number of all words shall include the singular and plural.
SECTION 9.12. REFERENCE TO AGREEMENT. Use of the words "herein", "hereof",
"hereto" and the like in this Agreement shall be construed as references to this
Agreement as a whole and not to any particular Article, Section or provision of
this Agreement, unless otherwise noted.
SECTION 9.13. CONFIDENTIALITY; PUBLICITY AND DISCLOSURES. Each party
shall keep this Agreement and its terms confidential, and shall make no press
release or public disclosure, either written or oral, regarding the transactions
contemplated by this Agreement without the prior knowledge and consent of the
other parties hereto; provided that the
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foregoing shall not prohibit any disclosure (a) by press release, filing or
otherwise that PHC-SUB has determined in its good faith judgment to be required
by federal securities laws or the rules of the National Association of
Securities Dealers, (b) to attorneys, accountants, investment bankers or other
agents of the parties assisting the parties in connection with the transactions
contemplated by this Agreement and (c) by PHC-SUB in connection with the conduct
of any initial public offering and conducting an examination of the operations
and assets of ASC; provided that PHC-SUB shall reasonably promptly provide
notice to ASC and the Shareholders of any press release made under this Section.
SECTION 9.14. NOTICE. Whenever this Agreement requires or permits any
notice, request, or demand from one party to another, the notice, request, or
demand must be in writing to be effective and shall be deemed to be delivered
and received (i) if personally delivered or if delivered by telex, telegram,
facsimile or courier service, when actually received by the party to whom notice
is sent or (ii) if delivered by mail (whether actually received or not), at the
close of business on the third business day next following the day when placed
in the mail, postage prepaid, certified or registered, addressed to the
appropriate party or parties, at the address of such party set forth below (or
at such other address as such party may designate by written notice to all other
parties in accordance herewith):
If to PHC-SUB: PHC Holding Corporation
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to: ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, L.L.P.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇, III
If to ASC: Central Florida Surgical Centers, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: Antonio Caos, M.D.
with a copy to: ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇, P.A.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esquire
If to Shareholders: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, M.D.
Internal Medicine Specialists, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Antonio Caos, M.D.
Internal Medicine Specialists, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
-9-
C. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, M.D.
Internal Medicine Specialists, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, M.D.
Internal Medicine Specialists, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇, M.D.
Internal Medicine Specialists, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
with a copy to: ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇, P.A.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esquire
SECTION 9.15. COUNTERPARTS. This Agreement may be executed in multiple
counterparts, each of which shall be deemed an original, and all of which
together shall constitute one and the same instrument.
SECTION 9.16. DEFINED TERMS. Terms used in the attachments hereto with
their initial letter capitalized and not otherwise defined therein shall have
the meanings as assigned to such terms in this Agreement.
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as
of the date first written above.
PHC-SUB:
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PHC HOLDING CORPORATION
By:______________________________
Its:_____________________________
ASC:
---
CENTRAL FLORIDA SURGICAL CENTERS, INC.
By:_______________________________
Antonio Caos, M.D., President
SHAREHOLDERS:
------------
_________________________________
C. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, M.D.
_________________________________
Antonio Caos, M.D.
_________________________________
▇▇▇▇ ▇▇▇▇▇▇▇▇, M.D.
_________________________________
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, M.D.
_________________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇, M.D.
-11-
ANNEX I
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ASSET PURCHASE AGREEMENT
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ANNEX II
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DUE DILIGENCE QUESTIONNAIRE
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