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EXHIBIT 10.14
PROFESSIONAL SERVICES AGREEMENT
THIS AGREEMENT ("Agreement"), dated as of December 17, 1996,
by and between Golder, Thoma, Cressey, Rauner, Inc., a Delaware Corporation
("GTCR"), Brim, Inc., an Oregon corporation (the "Company") and Principal
Hospital Company, a Delaware corporation (formerly known as Rural Hospital
Corporation) ("Principal") for the limited purpose specified in Section 14
hereof.
WHEREAS, Golder, Thoma, Xxxxxxx, Xxxxxx Fund IV, L.P., a
Delaware limited partnership ("Purchaser"), of which GTCR is the indirect
general partner, has purchased (the "Investment") a portion of the Company's
Common Stock, no par value, and the Series B Junior Preferred Stock, no par
value;
WHEREAS, the Company desires to receive financial and
management consulting services from GTCR, and obtain the benefit of the
experience of GTCR in business and financial management generally and its
knowledge of the Company and the Company's financial affairs in particular; and
WHEREAS, in connection with the Investment, GTCR is willing to
provide financial and management consulting services to the Company, and the
compensation arrangements set forth in this Agreement are designed to compensate
GTCR for such services.
NOW, THEREFORE, in consideration of the foregoing premises and
the respective agreements hereinafter set forth and the mutual benefits to be
derived herefrom, GTCR and the Company hereby agree as follows:
1. Engagement. The Company hereby engages GTCR as a
financial and management consultant, and GTCR hereby agrees to provide financial
and management consulting services to the Company, all on the terms and subject
to the conditions set forth below.
2. Services of GTCR. GTCR hereby agrees during the term
of this engagement to consult with the Company's board of directors (the
"Board") and management of the Company and its subsidiaries in such manner and
on such business and financial matters as may be reasonably requested from time
to time by the Board, including but not limited to:
(i) corporate strategy;
(ii) budgeting of future corporate investments;
(iii) acquisition and divestiture strategies; and
(iv) debt and equity financings.
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3. Personnel. GTCR shall provide and devote to the
performance of this Agreement such partners, employees and agents of GTCR as
GTCR shall deem appropriate for the furnishing of the services required thereby.
4. Investment Fee. At the time of (a) any purchase of
stock of the Company by Purchaser pursuant to Section 6 of the Stockholders
Agreement of even date herewith among the Company, the Purchaser and the other
stockholders named therein and (b) any other debt or equity financing of the
Company other than such financing by a member of the Company's senior
management, the Company shall pay to GTCR an investment fee in immediately
available funds equal to one and one-quarter percent (1.25%) of the amount paid
to the Company in connection with such purchase or financing.
5. Management Fee. The Company shall pay to GTCR within
90 days after the end of each fiscal year, a management fee equal to $200,000.
6. Expenses. The Company shall promptly reimburse GTCR
for such reasonable travel expenses and other out-of-pocket fees and expenses as
may be incurred by GTCR, its directors, officers and employees in connection
with the consummation of the Purchaser's Investment in the Company, the
transactions related thereto and in connection with the rendering of services
hereunder.
7. Term. This Agreement will continue from the date
hereof until Purchaser ceases to own at least 20% of the GTCR Shares (as defined
in the Stockholders Agreement dated as of the date hereof among the Company and
certain of its stockholders (the "Stockholders Agreement"). No termination of
this Agreement, whether pursuant to this paragraph or otherwise, shall affect
the Company's obligations with respect to the fees, costs and expenses incurred
by GTCR in rendering services hereunder and not reimbursed by the Company as of
the effective date of such termination.
8. Liability. Neither GTCR nor any of its affiliates,
partners, employees or agents shall be liable to the Company or its subsidiaries
or affiliates for any loss, liability, damage or expense arising out of or in
connection with the performance of services contemplated by this Agreement,
unless such loss, liability, damage or expense shall be proven to result
directly from the gross negligence or willful misconduct of GTCR.
9. Indemnification. The Company agrees to indemnify and
hold harmless GTCR, its partners, affiliates, officers, agents and employees
against and from any and all loss, liability, suits, claims, costs, damages and
expenses (including attorneys' fees) arising from their performance hereunder,
except as a result of their gross negligence or intentional wrongdoing.
10. GTCR an Independent Contractor. GTCR and the Company
agree that GTCR shall perform services hereunder as an independent contractor,
retaining control over and responsibility for its own operations and personnel.
Neither GTCR nor its directors, officers, or employees shall be considered
employees or agents of the Company as a result of this Agreement nor
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shall any of them have authority to contract in the name of or bind the Company,
except as expressly agreed to in writing by the Company.
11. Notices. Any notice, report or payment required or
permitted to be given or made under this Agreement by one party to the other
shall be deemed to have been duly given or made if personally delivered or, if
mailed, when mailed by registered or certified mail, postage prepaid, to the
other party at the following addresses (or at such other address as shall be
given in writing by one party to the other):
If to GTCR:
Golder, Thoma, Cressey, Rauner, Inc.
0000 Xxxxx Xxxxx
Xxxxxxx, XX 00000-0000
Attention: Xxxxx X. Xxxxxx
with a copy to:
Xxxxxxxx & Xxxxx
000 Xxxx Xxxxxxxx Xxxxx
Xxxxxxx, XX 00000
Attention: Xxxxx X. Xxxxxxx, P.C.
If to the Company:
Brim, Inc.
0000 Xxxxxxx Xxxxxxx Xxxxx, Xxxxx X00
Xxxxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxx
with a copy to:
Xxxxxxxx & Xxxxx
000 Xxxx Xxxxxxxx Xxxxx
Xxxxxxx, XX 00000
Attention: Xxxxx X. Xxxxxxx, P.C.
12. Entire Agreement; Modification. This Agreement (a)
contains the complete and entire understanding and agreement of GTCR and the
Company with respect to the subject matter hereof; and (b) supersedes all prior
and contemporaneous understandings, conditions and agreements, oral or written,
express or implied, respecting the engagement of GTCR in connection with the
subject matter hereof.
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13. Waiver of Breach. The waiver by either party of a
breach of any provision of this Agreement by the other party shall not operate
or be construed as a waiver of any subsequent breach of that provision or any
other provision hereof.
14. Termination. The Professional Services Agreement,
dated as of February 1, 1996 by and between GTCR and Principal will be
terminated automatically upon the effectiveness of this Agreement, and from and
after such time, shall have no further force or effect.
15. Assignment. Neither GTCR nor the Company may assign
its rights or obligations under this Agreement without the express written
consent of the other; provided that GTCR, without the consent of the Company may
assign its rights and obligations hereunder to any successor entity to GTCR.
16. Successors. This Agreement and all the obligations
and benefits hereunder shall inure to the successors and permitted assigns of
the parties.
17. Counterparts. This Agreement may be executed and
delivered by each party hereto in separate counterparts, each of which when so
executed and delivered shall be deemed an original and both of which taken
together shall constitute one and the same agreement.
18. Choice of Law. This Agreement shall be governed by
and construed in accordance with the domestic laws of the State of Delaware,
without giving effect to any choice of law or conflict of law provision or rule
(whether of the State of Delaware or any other jurisdiction) that would cause
the application of the laws of any jurisdiction other than the State of
Delaware.
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IN WITNESS WHEREOF, GTCR and the Company have caused this
Agreement to be duly executed and delivered on the date and year first above
written.
GOLDER, THOMA, XXXXXXX
XXXXXX, INC.
By: /s/ Xxxxx X. Xxxxxx
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Its: Principal
BRIM, INC.
By: /s/ Xxxxxx X. Xxxx
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Its: Chief Executive Officer
PRINCIPAL HOSPITAL COMPANY
By: /s/ Xxxxxx X. Xxxx
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Its: Chief Executive Officer
