FIRST AMENDMENT TO MANAGEMENT AND INVESTMENT ADVISORY SERVICES AGREEMENT

Exhibit 10.3

EXECUTION COPY

FIRST AMENDMENT TO

MANAGEMENT AND INVESTMENT ADVISORY SERVICES AGREEMENT

This FIRST AMENDMENT TO MANAGEMENT AND INVESTMENT ADVISORY SERVICES AGREEMENT (the “First Amendment”), is made and entered into this 4th day of May, 2011 (the “Effective Date”), by and among Surgery Center Holdings, Inc., a Delaware corporation (“Parent”), each of Parent’s direct or indirect subsidiaries listed as signatories hereto (such entities together with Parent, collectively being, the “Company”), and Bayside Capital, Inc., a Florida corporation (“Bayside”). The Company and Bayside are referred to herein individually as a “Party” and, collectively as, the “Parties.”

RECITALS:

WHEREAS, each of the Parties entered into that certain Management and Investment Advisory Services Agreement, dated as December 24, 2009 (the “Agreement”);

WHEREAS, pursuant to and in accordance with Section 16 of the Agreement, each of the Parties desires to amend the Agreement in certain respects upon the terms and conditions set forth herein; and

WHEREAS, all capitalized terms used herein and not otherwise defined herein shall have the meanings ascribed to such terms in the Agreement.

NOW, THEREFORE, in consideration of the promises contained herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby conclusively acknowledged, the parties hereto, intending to become legally bound, hereby agree as follows:

TERMS AND CONDITIONS:

 

1.	AMENDMENTS TO THE AGREEMENT.

(a) Amendment to Section 4.1. Section 4.1 of the Agreement is hereby amended by deleting the phrase “▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, LLP” in clause (A) of Section 4.1 of the Agreement and replacing it with the phrase “▇▇▇▇▇▇▇▇▇ Will & ▇▇▇▇▇ LLP”.

(b) Amendment to Section 6.1.1. Section 6.1.1 of the Agreement is hereby amended by deleting it in its entirety and replacing it with the following:

 

“6.1.1

The Company shall pay (or cause to be paid) to Bayside or its designees with respect to the management of the business operations of the Company and its subsidiaries, a cash consulting and management fee equal to $2,000,000 per annum, payable on a calendar quarterly basis in arrears in equal quarterly installments of $500,000; provided that the first payment shall be pro rated for the period beginning on the date of this Agreement through the end of such calendar quarter.”

(c) Amendment to Section 6.2. The following sentence shall be added at the end of Section 6.2 of the Agreement:

“The parties hereto agree that the Transaction Fee for the Transaction pursuant to that certain Agreement and Plan of Merger, dated as of January 20, 2011, by and among Surgery Center Holdings, Inc., Wildcat Merger Sub, Inc. and NovaMed, Inc. shall be $3,950,000, which shall consist of an Investment Banking Fee of $1,975,000 and a Supplemental Management Fee of $1,975,000.”

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3.	MISCELLANEOUS

(a) Effect of Amendment. Except as otherwise expressly provided in this First Amendment, nothing herein shall be deemed to amend or modify any provision of the Agreement, which shall remain unchanged and in full force and effect and is hereby ratified and reaffirmed in all respects,

(b) Headings. The headings, captions, and arrangements used in this First Amendment are for convenience only and shall not affect the interpretation of this First Amendment.

(c) Compliance. This First Amendment is made pursuant to and in the accordance with Section 16 of the Agreement.

(d) Counterparts. This First Amendment may be executed by the parties hereto in separate counterparts, each of which when so executed and delivered shall be an original, but all such counterparts shall together constitute one and the same instrument. Each counterpart may consist of a number of copies hereof each signed by less than all, but together signed by all of the parties. The parties hereto agree that facsimile and electronically transmitted portable document format (pdf) signatures shall be deemed originals.

(e) Severability. Any provision of this First Amendment held by a court of competent jurisdiction to be invalid or unenforceable shall not impair or invalidate the remainder of this First Amendment and the effect thereof shall be confined to the provision so held to be invalid or unenforceable.

(f) Entire Agreement. This First Amendment and the Agreement represent the final agreement between the parties and may not be contradicted by evidence of prior, contemporaneous, or subsequent oral agreements of the parties. There are no unwritten oral agreements between the parties.

(g) Applicable Law. This First Amendment shall be governed by the laws of the State of Florida as to all matters, including, but not limited to, matters of validity, construction, effect and performance.

[SIGNATURES APPEAR ON THE FOLLOWING PAGE]

 

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IN WITNESS WHEREOF, this First Amendment has been duly executed as of the date first written above.

 

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