<PAGE> 1
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE 13D
UNDER THE SECURITIES EXCHANGE ACT OF 1934
PHYSICIANS' SPECIALTY CORP.
(Name of issuer)
COMMON STOCK, par value $.001 per share
(Title of class of securities)
718934102
(CUSIP number)
Robert DiProva
Chief Financial Officer
Physicians' Specialty Corp.
1150 Lake Hearn Drive
Suite 640
Atlanta, Georgia 30342
(404) 256-7535
(Name, address and telephone number of person authorized to receive notices
and communications)
June 14, 1999
(Date of event which requires filing of this statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition that is the subject of this Schedule 13D, and is filing this
schedule because of Rule 13d-1(e), 13(d)-1(f) or 13(d)-1(g), check the following
box / /.
Note: Schedules filed in paper format shall include a signed
original and five copies of the schedule, including all exhibits. See
Rule 13d-7(b) for other parties to whom copies are to be sent.
(Continued on following pages)
(Page 1 of 13 Pages)
* The remainder of this cover page shall be filled out for a reporting person's
initial filing on this form with respect to the subject class of securities, and
for any subsequent amendment containing information which would alter
disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be deemed
to be "filed" for the purpose of Section 18 of the Securities Exchange Act of
1934 or otherwise subject to the liabilities of that section of the Act but
shall be subject to all other provisions of the Act (however, see the Notes).
<PAGE> 2
SCHEDULE 13D
CUSIP NO. 718934 10 2 Page 2 of 13 Pages
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
TA MergerCo, Inc.
04-3471054
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) / /
(b) /X/
3 SEC USE ONLY
4 SOURCE OF FUNDS*
OO
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(d) or 2(e)
/ /
6 CITIZENSHIP OR PLACE OF ORGANIZATION
DELAWARE
NUMBER OF 7 SOLE VOTING POWER
SHARES 0
BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY EACH 3,624,751
REPORTING 9 SOLE DISPOSITIVE POWER
PERSON 0
WITH 10 SHARED DISPOSITIVE POWER
3,624,751
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
3,624,751
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES* / /
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
39.6%
14 TYPE OF REPORTING PERSON *
CO
* SEE INSTRUCTIONS BEFORE FILLING OUT!
<PAGE> 3
SCHEDULE 13D
CUSIP NO. 718934 10 2 Page 3 of 13 Pages
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
TA/Advent VIII L.P.
04-3334380
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) / /
(b) /X/
3 SEC USE ONLY
4 SOURCE OF FUNDS*
OO
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(d) or 2(e)
/ /
6 CITIZENSHIP OR PLACE OF ORGANIZATION
DELAWARE
NUMBER OF 7 SOLE VOTING POWER
SHARES 0
BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY EACH 3,624,751(1)
REPORTING 9 SOLE DISPOSITIVE POWER
PERSON 0
WITH 10 SHARED DISPOSITIVE POWER
3,624,751(1)
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
3,624,751
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES* / /
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
39.6%
14 TYPE OF REPORTING PERSON *
PN
* SEE INSTRUCTIONS BEFORE FILLING OUT!
<PAGE> 4
PAGE 4 OF 13 PAGES
(1) For purposes of Section 13(d), TA/Advent VIII L.P. may be deemed to
beneficially own 3,624,751 shares of Common Stock that are subject to the Voting
Agreement (as defined in response to Item 4) to which TA MergerCo, Inc. is a
party. TA/Advent VIII L.P. disclaims beneficial ownership of any shares of
Common Stock beneficially owned by TA MergerCo, Inc.
<PAGE> 5
SCHEDULE 13D
CUSIP NO. 718934 10 2 Page 5 of 13 Pages
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
TA Associates VIII LLC
04-3334378
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) / /
(b) /X/
3 SEC USE ONLY
4 SOURCE OF FUNDS*
OO
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(d) or 2(e)
/ /
6 CITIZENSHIP OR PLACE OF ORGANIZATION
DELAWARE
NUMBER OF 7 SOLE VOTING POWER
SHARES 0
BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY EACH 3,624,751(1)
REPORTING 9 SOLE DISPOSITIVE POWER
PERSON 0
WITH 10 SHARED DISPOSITIVE POWER
3,624,751(1)
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
3,624,751
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES* / /
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
39.6%
14 TYPE OF REPORTING PERSON *
OO
* SEE INSTRUCTIONS BEFORE FILLING OUT!
<PAGE> 6
PAGE 6 OF 13 PAGES
(1) For purposes of Section 13(d), TA Associates VIII LLC may be deemed to
beneficially own 3,624,751 shares of Common Stock that are subject to the Voting
Agreement (as defined in response to Item 4) to which TA MergerCo, Inc. is a
party. TA Associates VIII LLC disclaims beneficial ownership of any shares of
Common Stock beneficially owned by TA MergerCo, Inc.
<PAGE> 7
SCHEDULE 13D
CUSIP NO. 718934 10 2 Page 7 of 13 Pages
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
TA Associates, Inc.
04-3205751
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) / /
(b) /X/
3 SEC USE ONLY
4 SOURCE OF FUNDS*
OO
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(d) or 2(e)
/ /
6 CITIZENSHIP OR PLACE OF ORGANIZATION
DELAWARE
NUMBER OF 7 SOLE VOTING POWER
SHARES 0
BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY EACH 3,624,751(1)
REPORTING 9 SOLE DISPOSITIVE POWER
PERSON 0
WITH 10 SHARED DISPOSITIVE POWER
3,624,751(1)
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
3,624,751
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES* / /
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
39.6%
14 TYPE OF REPORTING PERSON *
CO
* SEE INSTRUCTIONS BEFORE FILLING OUT!
<PAGE> 8
PAGE 8 OF 13 PAGES
(1) For purposes of Section 13(d), TA Associates, Inc. may be deemed to
beneficially own 3,624,751 shares of Common Stock that are subject to the Voting
Agreement (as defined in response to Item 4) to which TA MergerCo, Inc. is a
party. TA Associates, Inc. disclaims beneficial ownership of any shares of
Common Stock beneficially owned by TA MergerCo, Inc.
<PAGE> 9
PAGE 9 OF 13 PAGES
ITEM 1. SECURITY AND ISSUER.
The Securities to which this statement relates are shares of common
stock, par value $.001 per share (the "Common Stock"), of Physicians' Specialty
Corp., a Delaware corporation (the "Issuer"). The principal executive offices of
the Issuer are located at 1150 Lake Hearn Drive, Suite 640, Atlanta Georgia
30342.
ITEM 2. IDENTITY AND BACKGROUND.
This statement is being filed on behalf of the following entities:
TA/Advent VIII L.P. (the "TA Fund"), TA Associates VIII LLC ("TA Associates
VIII"), TA Associates, Inc. ("TA Associates," and together with TA Associates
VIII, the "General Partners"), and TA MergerCo, Inc. ("Merger Sub").
The TA Fund is a limited partnership organized under the laws of
Delaware. TA Associates VIII is a limited liability company organized under the
laws of Delaware. TA Associates is a corporation organized under the laws of
Delaware. The TA Fund is an investment fund principally engaged in the business
of making venture capital and other investments. Each of the General Partners is
principally engaged in the business of making investments for, and acting as
general partner or other authorized person of, investment funds engaged in
venture capital and other investments. Merger Sub is a corporation formed under
the laws of Delaware for the purpose of effecting the Merger. The principal
business office of each of the TA Fund, the General Partners and Merger Sub is
c/o TA Associates, Inc., 125 High Street, Boston, Massachusetts 02110. The
directors and executive officers of TA Associates and Merger Sub are set forth
on APPENDIX A hereto.
TA Associates VIII is the sole general partner of the TA Fund. TA
Associates is the sole manager of TA Associates VIII. Merger Sub is a wholly
owned subsidiary of the TA Fund.
During the last five years, neither the TA Fund, nor the General
Partners nor Merger Sub has been convicted in a criminal proceeding (excluding
traffic violations or similar misdemeanors). During the last five years, neither
the TA Fund, nor the General Partners nor Merger Sub was a party to a civil
proceeding of a judicial or administrative body of competent jurisdiction as a
result of which any such person was or is subject to a judgment, decree or final
order enjoining future violations, or prohibiting or mandating activities
subject to Federal or State securities laws or finding any violation with
respect to such laws.
ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION.
Merger Sub may be deemed to have acquired the beneficial ownership of
3,624,751 shares of Common Stock as of June 14, 1999 as a result of provisions
of the Voting Agreement (as defined in response to Item 4). The shares of Common
Stock to which this statement relates have not been purchased by Merger Sub, but
Merger Sub may be deemed to share the power to vote and dispose of such shares
under the provisions of the Voting Agreement, which is described in greater
detail in response to Item 4 and such item is incorporated herein by reference.
<PAGE> 10
PAGE 10 OF 13 PAGES
ITEM 4. PURPOSE OF TRANSACTION.
On June 14, 1999, the Issuer, the TA Fund, Merger Sub and certain other
investment funds affiliated with TA Associates entered into an Agreement and
Plan of Merger (the "Merger Agreement"), pursuant to which Merger Sub will merge
with and into the Issuer (the "Merger"). The separate existence of Merger Sub
will cease upon consummation of the Merger, and the Issuer will be the surviving
corporation in the Merger (the "Surviving Corporation").
In connection with the Merger, certain stockholders of the Issuer
holding approximately 39.6% of the outstanding shares of Common Stock have
entered into a voting agreement with Merger Sub (the "Voting Agreement"),
pursuant to which such stockholders have agreed, so long as the Voting Agreement
remains in effect, to, among other things, (i) vote their shares of Common Stock
(as well as shares of Common Stock that may be issued upon the exercise of stock
options held by such stockholders) in favor of approval and adoption of the
Merger Agreement and the Merger either directly or through the grant of an
irrevocable proxy to Merger Sub and (ii) abide by certain restrictions on the
transfer of shares of Common Stock owned by each such stockholder. The Voting
Agreement will terminate upon the earlier of the consummation of the Merger or
the termination of the Merger Agreement pursuant to its terms. Approval and
adoption of the Merger Agreement and the Merger requires the affirmative vote of
the holders of a majority of the outstanding shares of Common Stock.
The purpose of the Voting Agreement is to facilitate the consummation
of the Merger.
References to, and descriptions of, the Merger Agreement and the Voting
Agreement as set forth above in this Item 4 are qualified in their entirety by
references to the copies of the Merger Agreement, which is incorporated into
this Schedule 13D by reference, and the Voting Agreement included as Exhibit 2
to this Schedule 13D, and are incorporated in this Item 4 in their entirety
where such references and descriptions appear.
ITEM 5. INTEREST IN SECURITIES OF THE ISSUER.
(a) and (b) 3,624,751 shares of Common Stock, representing
approximately 39.6% of the outstanding shares of Common Stock, based on the
number of shares of Common Stock outstanding on June 14, 1999, as represented by
the Issuer, are subject to the Voting Agreement. By virtue of the Voting
Agreement, Merger Sub may be deemed to share with the respective stockholders of
the Issuer that are parties to the Voting Agreement the power to vote or dispose
of the shares of Common Stock subject to the Voting Agreement. However, Merger
Sub (i) is not entitled to any rights as a stockholder of the Issuer as to the
shares of Common Stock subject to the Voting Agreement, other than the rights
granted pursuant to the Voting Agreement and (ii) disclaims beneficial ownership
of the shares of Common Stock of the Issuer which are subject to the Voting
Agreement.
(c) Other than as set forth in this Item 5(a)-(b), to the best of TA
Associates' knowledge as of the date hereof, there have been no transactions in
the shares of Common Stock effected during the last 60 days by Merger Sub,
the TA Fund, the General Partners or any person set forth on APPENDIX A hereto.
<PAGE> 11
PAGE 11 OF 13 PAGES
(d) To the best of TA Associates' knowledge as of the date hereof, no
other person is known to have the right to receive or the power to direct the
receipt of dividends from, or the proceeds from the sale of, any shares of
Common Stock.
(e) Not applicable.
ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS
WITH RESPECT TO SECURITIES OF THE ISSUER.
The information set forth or incorporated by reference in Items 3
through 5 is hereby incorporated herein by reference. A copy of the Merger
Agreement is incorporated into this Schedule 13D by reference and a copy of the
Voting Agreement is included as Exhibit 2 to this Schedule 13D.
In connection with the Merger, the TA Fund, certain other investment
funds affiliated with TA Associates and certain of the stockholders of the
Issuer who are parties to the Voting Agreement have entered into a Stock
Purchase Agreement, dated June 14, 1999, pursuant to which the TA Fund and such
other investment funds will purchase an aggregate of 1,873,919 shares of Common
Stock from such stockholders immediately prior to the consummation of the
Merger. Such shares of Common Stock are currently subject to the Voting
Agreement.
Except as set forth in this statement, to the best of TA Associates'
knowledge as of the date hereof, there are at present no effective contracts,
arrangements, understandings or relationships (legal or otherwise) between
Merger Sub, the TA Fund or any General Partner and any person with respect to
securities of the Issuer.
ITEM 7. MATERIAL TO BE FILED AS EXHIBITS.
No. Description
1 Agreement and Plan of Merger, dated as of June 14, 1999, by
and among Physicians' Specialty Corp., TA MergerCo, Inc.,
TA/Advent VIII L.P., TA/ Atlantic and Pacific IV L.P., TA
Investors LLC and TA Executives Fund LLC [incorporated herein
by reference from Physicians' Specialty Corp.'s Current Report
on Form 8-K, filed June 18, 1999].
2 Voting Agreement, dated as of June 14, 1999, by and among
Physicians' Specialty Corp., TA MergerCo, Inc. and the
stockholders of Physicians' Specialty Corp.
identified on the signature pages thereto.
3 Stock Purchase Agreement, dated as of June 14, 1999, by and
among TA/Advent VIII L.P., TA Atlantic and Pacific IV L.P.,
TA Investors LLC and TA Executives Fund LLC and the
stockholders of Physicians' Specialty Corp.
identified on the signature pages thereto.
This statement speaks as of its date and no inference should be drawn that no
change has occurred in the facts set forth herein after the date hereof.
<PAGE> 12
PAGE 12 OF 13 PAGES
SIGNATURES
After reasonable inquiry and to the best knowledge and belief of each of the
persons signing below, each person signing below certifies that the information
set forth in this statement is true, complete and correct.
Agreement for Joint Filing
TA MergerCo, Inc., TA/Advent VIII L.P., TA Associates VIII LLC and TA
Associates, Inc. hereby agree that TA Associates, Inc. shall file with the
Securities and Exchange Commission a joint Schedule 13D on behalf of the above-
named parties concerning their beneficial ownership of Physicians Specialty
Corp.
Dated: June 25, 1999
TA MERGERCO, INC.
/s/ David S.B. Lang
-----------------------------------
David S.B. Lang
Treasurer and Secretary
TA/ADVENT VIII L.P.
By: TA Associates VIII LLC, its General
Partner
By: TA Associates, Inc., its Manager
/s/ Katherine S. Cromwell
-----------------------------------
Katherine S. Cromwell
Managing Director
TA ASSOCIATES, INC.
/s/ Katherine S. Cromwell
-----------------------------------
Katherine S. Cromwell
Managing Director
TA ASSOCIATES VIII LLC
By: TA Associates, Inc., its Manager
/s/ Katherine S. Cromwell
-----------------------------------
Katherine S. Cromwell
Managing Director
<PAGE> 13
Page 13 of 13 Pages
APPENDIX A
DIRECTORS AND OFFICERS OF TA ASSOCIATES, INC.
---------------------------------------------
DIRECTORS
- ---------
C. Kevin Landry
P. Andrews McLane
c/o TA Associates
125 High Street
Boston, MA 02110
Jacqueline C. Morby
c/o TA Associates
4516 Henrey Street
Pittsburgh, PA 15213
Jeffrey T. Chambers
c/o TA Associates
435 Tasso Street
Palo Alto, CA 94301
OFFICERS
- --------
C. Kevin Landry Chief Executive Officer and Managing Director
P. Andrews McLane Senior Managing Director
Katherine S. Cromwell Managing Director and Chief Financial Officer
Richard D. Tadler Managing Director
c/o TA Associates
125 High Street
Boston, MA 02110
Jacqueline C. Morby Managing Director
c/o TA Associates
4516 Henrey Street
Pittsburgh, PA 15213
The director of TA Merger Co, Inc. is David S.B. Lang. The executive
officers of TA Merger Co, Inc. are Richard D. Tadler, President and Chief
Executive Officer, and David S.B. Lang, Treasurer and Secretary.
<PAGE> 1
Exhibit 2
EXECUTION COPY
VOTING AGREEMENT
VOTING AGREEMENT, dated as of June 14, 1999 (this "AGREEMENT"), among
TA MergerCo, Inc., a Delaware corporation ("MERGERCO"), the persons listed on
EXHIBIT A hereto (the "STOCKHOLDERS" and each a "STOCKHOLDER", which term shall
include certain of the undersigned only in the event they exercise any Target
Options (hereinafter defined) held by them prior to the consummation of the
transactions contemplated by the Merger Agreement (as hereinafter defined)), and
Physicians' Specialty Corp., a Delaware corporation ("TARGET").
WHEREAS, as of the date hereof each Stockholder owns (either
beneficially or of record) the number of shares of common stock, par value $.01
per share (the "TARGET STOCK"), of Target set forth on EXHIBIT A hereto (all
such shares and any shares of Target hereafter acquired by the Stockholders
prior to the termination of this Agreement, including any shares of Target Stock
set forth on EXHIBIT A hereto that are issued upon the exercise of options to
purchase Target Stock at an exercise price of less than $10.50 per share (the
"Target Options") held by such Stockholder, being referred to herein as the
"SHARES"); and
WHEREAS, MergerCo and Target are entering into an Agreement and Plan of
Merger, dated as of the date hereof (as the same may be amended from time to
time, the "MERGER AGREEMENT"), which provides, upon the terms and subject to the
conditions thereof, for the merger of MergerCo with and into Target (the
"MERGER"); and
WHEREAS, certain of the Stockholders and MergerCo are entering into a
Roll-over Agreement and a Stock Purchase Agreement dated as of the date hereof
(the "ROLL-OVER AND STOCK PURCHASE AGREEMENTS"), which provide for such
Stockholders to sell certain of the Shares to MergerCo for cash consideration
and to receive shares of MergerCo common stock in the Merger in exchange for the
remainder of the Shares; and
WHEREAS, as a condition to the willingness of MergerCo to enter into
the Merger Agreement, MergerCo has requested that each Stockholder agree, and,
in order to induce MergerCo to enter into the Merger Agreement each such
Stockholder is willing to agree, to grant MergerCo an irrevocable proxy to vote
the Shares pursuant to the terms and conditions hereof;
NOW, THEREFORE, in consideration of the promises and of the mutual
agreements and covenants set forth herein and in the Merger Agreement, the
parties hereto agree as follows:
ARTICLE I
REPRESENTATIONS AND WARRANTIES
Each Stockholder hereby represents and warrants to MergerCo as follows:
<PAGE> 2
SECTION 1.01. DUE AUTHORITY. (a) Such Stockholder has full power,
corporate or otherwise, and authority to execute and deliver this Agreement and
to perform its obligations hereunder. This Agreement has been duly executed and
delivered by or on behalf of such Stockholder and, assuming its due
authorization, execution and delivery by MergerCo, constitutes a legal, valid
and binding obligation of such Stockholder, enforceable against such Stockholder
in accordance with its terms, except to the extent that enforceability may be
limited by bankruptcy, insolvency, moratorium, reorganization and other laws
affecting the enforcement of creditors' rights generally and by general
principles of equity.
(b) There is no beneficiary or holder of a voting trust certificate or
other interest of any trust of which such Stockholder is trustee whose consent
is required for the execution and delivery of this Agreement or the consummation
of the transactions contemplated hereby.
SECTION 1.02. NO CONFLICT; CONSENTS. (a) The execution and delivery of
this Agreement by such Stockholder do not, and the performance by such
Stockholder of the obligations under this Agreement and the compliance by such
Stockholder with any provisions hereof do not and will not, (i) conflict with or
violate any law, statute, rule, regulation, order, writ, judgment or decree
applicable to such Stockholder or such Stockholder's Shares, (ii) conflict with
or violate the Stockholder's charter, bylaws, partnership agreement or other
organizational documents, if applicable, or (iii) result in any breach of or
constitute a default (or an event that with notice or lapse of time or both
would become a default) under, or give to others any rights of termination,
amendment, acceleration or cancellation of, or result in the creation of a lien
or encumbrance on any of such Stockholder's Shares pursuant to, any note, bond,
mortgage, indenture, contract, agreement, lease, license, permit, franchise or
other instrument or obligation to which such Stockholder is a party or by which
such Stockholder or such Stockholder's Shares are bound.
(b) The execution and delivery of this Agreement by such
Stockholder do not, and the performance of this Agreement by such Stockholder
will not, require any consent, approval, authorization or permit of, or filing
with or notification to, any governmental or regulatory authority except for
applicable requirements, if any, of the Securities Exchange Act of 1934, as
amended, and except where the failure to obtain such consents, approvals,
authorizations or permits, or to make such filings or notifications, could not
prevent or delay the performance by such Stockholder of his or her obligations
under this Agreement in any material respect.
SECTION 1.03. TITLE TO SHARES. (a) Such Stockholder is the record or
beneficial owner of such Stockholder's Shares free and clear of any proxy or
voting restriction. The Shares set forth opposite such Stockholder's name on
EXHIBIT A hereto constitute all of the shares of Target Stock owned of record or
beneficially by such Stockholder or are issuable upon the exercise of Target
Options held by such Stockholder.
(b) Such Stockholder has, and during the Proxy Term will have
(except as a result of transfers permitted by Section 2.01), the sole voting
power with respect to the matters set forth in Article II hereof with respect to
all of the Shares, with no restrictions on such rights, subject to applicable
laws and the terms of this Agreement.
2
<PAGE> 3
SECTION 1.04. NO ENCUMBRANCES. Such Stockholder's Shares and the
certificates representing such Shares are now and at all times during the Proxy
Term hereof (except as a result of transfers permitted by Section 2.01) will be
held by such Stockholder, or by a nominee or custodian for the benefit of such
Stockholder, (i) free and clear of all proxies, voting trusts and voting
agreements, understandings or arrangements providing for any right on the part
of any person other than such Stockholder to vote such Shares except any such
encumbrances or proxies arising under this Agreement.
SECTION 1.05. ACKNOWLEDGMENT OF RELIANCE. Such Stockholder understands
and acknowledges that MergerCo is entering into the Merger Agreement in reliance
upon such Stockholder's execution and delivery of this Agreement.
SECTION 1.06. BROKERS. Neither Target nor MergerCo shall be obligated
or otherwise liable for any broker's, finder's, financial adviser's or other
similar fee or commission in connection with the transactions contemplated
hereby based upon arrangements made by or on behalf of any Stockholder
(excluding fees payable in connection with the Company's arrangements with
Premier HealthCare and The Robinson-Humphrey Company LLC).
ARTICLE II
CERTAIN COVENANTS OF STOCKHOLDERS
Each Stockholder hereby covenants and agrees with MergerCo as follows:
SECTION 2.01. TRANSFER OF SHARES. Other than pursuant to the terms of
the Roll-over and Stock Purchase Agreements and as otherwise provided herein,
during the Proxy Term each Stockholder shall not hereafter (a) sell, tender,
transfer, pledge, encumber, assign or otherwise dispose of any of such
Stockholder's Shares, (b) deposit such Stockholder's Shares into a voting trust
or enter into a voting agreement or arrangement with respect to such Shares or
grant any proxy or power of attorney with respect thereto, (c) enter into any
contract, option or other arrangement or undertaking with respect to the direct
or indirect sale, transfer, pledge, encumbrance, assignment or other disposition
of any Target Stock, or (d) take any action that would make any representation
or warranty of such Stockholder contained herein untrue or incorrect in any
material respect or have the effect of preventing or disabling such Stockholder
from performing such Stockholder's obligations under this Agreement.
SECTION 2.02. VOTING OF SHARES; FURTHER ASSURANCES. (a) Each
Stockholder, by this Agreement, with respect to those Shares that such
Stockholder owns of record, does hereby constitute and appoint MergerCo, or any
nominee of MergerCo, with full power of substitution, during and for the Proxy
Term, as such Stockholder's true and lawful attorney and irrevocable proxy, for
and in such Stockholder's name, place and stead, to vote each of such Shares as
such Stockholder's proxy, at every meeting of the stockholders of Target or any
adjournment thereof or in connection with any written consent of Target's
stockholders, (i) in favor of the adoption of the Merger Agreement and approval
of the Merger and the other transactions contemplated by the Merger Agreement,
(ii) against (x) any Acquisition Proposal, as that term is defined in the Merger
Agreement, and any proposal for any action or agreement that would result in a
breach of
3
<PAGE> 4
any covenant, representation or warranty or any other obligation or agreement of
Target under the Merger Agreement or which could result in any of the conditions
of Target's obligations under the Merger Agreement not being fulfilled and (y)
any change in the directors of Target, any change in the present capitalization
of Target or any amendment to Target's certificate of incorporation or bylaws,
any other material change in Target's corporate structure or business, or any
other action which in the case of each of the matters referred to in this clause
(y) could reasonably be expected to impede, interfere with, delay, postpone or
materially adversely affect the transactions contemplated by the Merger
Agreement or the Roll-over and Stock Purchase Agreements or the likelihood of
such transactions being consummated, and (iii) in favor of any other matter
necessary for consummation of the transactions contemplated by the Merger
Agreement which is considered at any such meeting of stockholders or in such
consent, and in connection therewith to execute any documents which are
necessary or appropriate in order to effectuate the foregoing or, at the request
of MergerCo, to permit MergerCo to vote such Shares directly. Each Stockholder
further agrees to cause the Shares owned by such Stockholder beneficially to be
voted in accordance with the foregoing. Each Stockholder intends this proxy to
be irrevocable and coupled with an interest during the Proxy Term and hereby
revokes any proxy previously granted by such Stockholder with respect to such
Stockholder's Shares.
(b) Each Stockholder hereby further agrees, with respect to
any Shares not voted pursuant to paragraph (a) above, that during the Proxy
Term, at any meeting of stockholders of Target, however called, or in connection
with any written consent of Target's stockholders, such Stockholder shall vote
(or cause to be voted) the Shares held of record or beneficially by such
Stockholder, except as specifically requested in writing by MergerCo in advance,
(i) in favor of the adoption of the Merger Agreement and approval of the Merger
and the other transactions contemplated by the Merger Agreement, (ii) against
(x) any Acquisition Proposal, as that term is defined in the Merger Agreement,
and any proposal for any action or agreement that would result in a breach of
any covenant, representation or warranty or any other obligation or agreement of
Target under the Merger Agreement or which could result in any of the conditions
of Target's obligations under the Merger Agreement not being fulfilled or (y)
any change in the directors of Target, any change in the present capitalization
of Target or any amendment to Target's certificate of incorporation or bylaws,
any other material change in Target's corporate structure or business, or any
other action which in the case of each of the matters referred to in this clause
(y) could reasonably be expected to, impede, interfere with, delay, postpone or
materially adversely affect the transactions contemplated by the Merger
Agreement or the Roll-over and Stock Purchase Agreements or the likelihood of
such transactions being consummated, and (iii) in favor of any other matter
necessary for consummation of the transactions contemplated by the Merger
Agreement which is considered at any such meeting of stockholders or in such
consent, and in connection therewith to execute any documents which are
necessary or appropriate in order to effectuate the foregoing.
(c) For the purposes of this Agreement, "PROXY TERM" shall
mean the period from the execution of this Agreement until the earlier of (i)
the date of any termination of the Merger Agreement or (ii) the Effective Time.
(d) Each Stockholder agrees that such Stockholder will not
enter into any agreement or understanding with any person or entity or take any
action during the Proxy Term
4
<PAGE> 5
which will permit any person or entity to vote or give instructions to vote the
Shares in any manner inconsistent with the terms of this Section 2.02. Each
Stockholder further agrees to take such further action and execute such other
instruments as may be reasonably necessary to effectuate the intent of this
Agreement, including without limitation, any number of proxies and other
documents permitting MergerCo to vote the Shares or to direct the record owners
thereof to vote the Shares in accordance with this Agreement.
SECTION 2.03. CERTAIN EVENTS. Each Stockholder agrees that, during the
Proxy Term, this Agreement and the obligations hereunder shall attach to such
Stockholder's Shares and shall be binding upon any person or entity to which
legal or beneficial ownership of such Shares shall pass, whether by operation of
law or otherwise, including without limitation, if applicable, such
Stockholder's heirs, guardians, administrators or successors.
SECTION 2.04. NO SOLICITATION. Except as explicitly permitted by
Section 7.5 of the Merger Agreement, during the Proxy Term no Stockholder shall,
nor, to the extent applicable to such Stockholder, shall it permit any of its
affiliates hereunder (other than Target to the extent permitted by Section 7.5
of the Merger Agreement) to, nor shall it authorize any partner, officer,
director, advisor or representative of, such Stockholder or any of its
affiliates (other than Target to the extent permitted by Section 7.5 of the
Merger Agreement) to, directly or indirectly, (i) solicit, initiate or encourage
(including by way of furnishing non-public information), or take any other
action to facilitate, any inquiries or the making of any proposal that
constitutes an Acquisition Proposal (as defined in the Merger Agreement), (ii)
participate in any discussions or negotiations regarding an Acquisition Proposal
or (iii) enter into any agreements, definitive or otherwise, regarding an
Acquisition Proposal.
SECTION 2.05. STOP TRANSFER. (a) Each Stockholder agrees with, and
covenants to, MergerCo that such Stockholder may not request that Target
register the transfer (book-entry or otherwise) of any certificate or
uncertificated interest representing any of such Stockholder's Shares, unless
such transfer is made in compliance with this Agreement. Each Stockholder
agrees, with respect to any Shares in certificated form, that such Stockholder
will tender to Suntrust, within fifteen business days after the date hereof, the
certificates representing such Shares, to be held in accordance with the terms
of a Custody Agreement among Suntrust, Target and MergerCo. Each Stockholder
agrees that, within ten business days after the date hereof, such Stockholder
will no longer hold any Shares, whether certificated or uncertificated, in
"street name" or in the name of any nominee. Target shall notify its transfer
agent of the provisions set forth in this Section and instruct its transfer
agent not to permit any transfer of Shares except in compliance with the terms
hereof and each Stockholder agrees to provide such documentation and to do such
other things as may be required to give effect to such provisions with respect
to such Shares.
5
<PAGE> 6
ARTICLE III
GENERAL PROVISIONS
SECTION 3.01. SEVERABILITY. If any term or other provision of this
Agreement is determined to be invalid, illegal or incapable of being enforced by
any rule of law or public policy, all other conditions and provisions of this
Agreement shall nevertheless remain in full force and effect so long as the
economic or legal substance of the transactions contemplated hereby is not
affected in any manner materially adverse to any party. Upon such determination
that any term or other provision is invalid, illegal or incapable of being
enforced, the parties hereto shall negotiate in good faith to modify this
Agreement so as to effect the original intent of the parties as closely as
possible to the fullest extent permitted by applicable law in an acceptable
manner to the end that the transactions contemplated hereby are fulfilled to the
extent possible.
SECTION 3.02. ENTIRE AGREEMENT. This Agreement constitutes the entire
agreement of the parties and supersedes all prior agreements and undertakings,
both written and oral, between the parties, or any of them, with respect to the
subject matter hereof.
SECTION 3.03. AMENDMENTS. This Agreement may not be modified, amended,
waived, altered or supplemented, except upon the execution and delivery of a
written agreement executed by the parties hereto; provided, however, that
MergerCo may in writing waive or consent to a modification of any provision of
this Agreement with respect to any Stockholder without the agreement of any
other party hereto.
SECTION 3.04. ASSIGNMENT. This Agreement shall not be assigned by
operation of law or otherwise, except in accordance with Section 2.01.
SECTION 3.05. PARTIES IN INTEREST. This Agreement shall be binding upon
and inure solely to the benefit of each party hereto and its heirs and assigns
and nothing in this Agreement, express or implied, is intended to or shall
confer upon any other person any right, benefit or remedy of any nature
whatsoever under or by reason of this Agreement.
SECTION 3.06. SPECIFIC PERFORMANCE. The parties hereto agree that
irreparable damage would occur in the event any provision of this Agreement was
not performed in accordance with the terms hereof or was otherwise breached. It
is accordingly agreed that the parties shall be entitled to specific relief
hereunder, including, without limitation, an injunction or injunctions to
prevent and enjoin breaches of the provisions of this Agreement and to enforce
specifically the terms and provisions hereof, in any state or federal court in
the State of Delaware, in addition to any other remedy to which they may be
entitled at law or in equity. Any requirements for the securing or posting of
any bond with respect to any such remedy are hereby waived.
SECTION 3.07. CHOICE OF LAW/CONSENT TO JURISDICTION. All disputes,
claims or controversies arising out of or relating to this Agreement, or the
negotiation, validity or performance of this Agreement shall be governed by and
construed in accordance with the laws of the State of Delaware without regard to
its rules of conflict of laws. Each Stockholder and each of Target and MergerCo
hereby irrevocably and unconditionally consents to submit to the
6
<PAGE> 7
sole and exclusive jurisdiction of the courts of the State of Delaware and of
the United States located in the State of Delaware (the "DELAWARE COURTS") for
any litigation arising out of or relating to this Agreement, or the negotiation,
validity or performance of this Agreement (and agrees not to commence any
litigation relating thereto except in such courts), waives any objection to the
laying of venue of any such litigation in the Delaware Courts and agrees not to
plead or claim in any Delaware Court that such litigation brought therein has
been brought in any inconvenient forum. Each of the parties hereto agrees, (a)
to the extent such party is not otherwise subject to service of process in the
State of Delaware, to appoint and maintain an agent in the State of Delaware as
such party's agent for acceptance of legal process, and (b) that service of
process may also be made on such party by prepaid certified mail with a proof of
mailing receipt validated by the United States Postal Service constituting
evidence of valid service. Service made pursuant to (a) or (b) above shall have
the same legal force and effect as if served upon such party personally within
the State of Delaware. For purposes of implementing the parties' agreement to
appoint and maintain an agent for service of process in the State of Delaware,
each such party does hereby appoint CT Corporation, Corporation Trust Center,
1209 Orange Street, Wilmington, DE 19801, as such agent.
SECTION 3.08. COUNTERPARTS. This Agreement may be executed in one or
more counterparts, and by the different parties hereto in separate counterparts,
each of which when executed shall be deemed to be an original but all of which
taken together shall constitute one and the same agreement.
SECTION 3.09. DEFINITIONS. Terms used in this Agreement and not
otherwise defined herein shall have the meanings set forth in the Merger
Agreement.
SECTION 3.10. NO AGREEMENT UNTIL EXECUTED. Irrespective of negotiations
among the parties or the exchanging of drafts of this Agreement, this Agreement
shall not constitute or be deemed to evidence a contract, agreement, arrangement
or understanding among the parties hereto unless and until this Agreement is
executed by the parties hereto.
SECTION 3.11. EXCULPATION. No Stockholder shall have any liability or
obligation whatsoever under or by reason of this Agreement because of a breach
by any other Stockholder of its obligations, representations or warranties
hereunder or thereunder.
SECTION 3.12. DIRECTORS AND OFFICERS. Notwithstanding anything herein
to the contrary, the covenants and agreements set forth herein shall not prevent
any of the Stockholders who are serving on Target's board of directors or who
are officers of Target from taking any action, subject to the applicable
provisions of the Merger Agreement, while acting in such capacity as a director
or officer of Target.
7
<PAGE> 8
IN WITNESS WHEREOF, the parties have duly executed this Voting
Agreement as of the date first written above.
TA MERGERCO, INC.
By: /s/ Richard Tadler
-----------------------------------
Name: Richard Tadler
Title: President and Chief Executive Officer
PHYSICIANS' SPECIALTY CORP.
By: /s/ E.R. Casas
-----------------------------------
Name: E. R. Casas
Title: Director
<PAGE> 9
[Voting Agreement]
STOCKHOLDER SIGNATURE PAGE
- --------------------------
/s/ Ramie A. Tritt
------------------------------------
Ramie A. Tritt, M.D.
<PAGE> 10
[Voting Agreement]
STOCKHOLDER SIGNATURE PAGE
- --------------------------
/s/ Daniel M. Adams
------------------------------------
Daniel M. Adams, M.D.
<PAGE> 11
[Voting Agreement]
STOCKHOLDER SIGNATURE PAGE
- --------------------------
ATLANTA HEAD & NECK, P.C.
By: /s/ Albert A. Clairmont
------------------------------------
Name: Albert A. Clairmont, M.D.
Title:
<PAGE> 12
[Voting Agreement]
STOCKHOLDER SIGNATURE PAGE
- --------------------------
/s/ Michael A. Avidano
------------------------------------
Michael A. Avidano, M.D.
<PAGE> 13
[Voting Agreement]
STOCKHOLDER SIGNATURE PAGE
- --------------------------
/s/ Sanjay Bhansali
------------------------------------
Sanjay Bhansali, M.D.
<PAGE> 14
[Voting Agreement]
STOCKHOLDER SIGNATURE PAGE
- --------------------------
/s/ Deborah M. Burton
------------------------------------
Deborah M. Burton, M.D.
<PAGE> 15
[Voting Agreement]
STOCKHOLDER SIGNATURE PAGE
- --------------------------
/s/ Willie J. Cornay
------------------------------------
Willie J. Cornay, M.D.
<PAGE> 16
[Voting Agreement]
STOCKHOLDER SIGNATURE PAGE
- --------------------------
/s/ Andrew J. Diamond
------------------------------------
Andrew J. Diamond, M.D.
<PAGE> 17
[Voting Agreement]
STOCKHOLDER SIGNATURE PAGE
- --------------------------
EAR, NOSE & THROAT SPECIALISTS, P.C.
By: /s/ Ronald A. Van Tuyl
------------------------------------
Name: Ronald A. Van Tuyl, M.D.
Title:
<PAGE> 18
[Voting Agreement]
STOCKHOLDER SIGNATURE PAGE
- --------------------------
/s/ Andrew R. Golde
------------------------------------
Andrew R. Golde, M.D.
<PAGE> 19
[Voting Agreement]
STOCKHOLDER SIGNATURE PAGE
- --------------------------
/s/ David A. Goodman
------------------------------------
David A. Goodman, M.D.
<PAGE> 20
[Voting Agreement]
STOCKHOLDER SIGNATURE PAGE
- --------------------------
/s/ Nancy R. Griner
------------------------------------
Nancy R. Griner, M.D.
<PAGE> 21
[Voting Agreement]
STOCKHOLDER SIGNATURE PAGE
- --------------------------
/s/ Christopher B. Holloway
------------------------------------
Christopher B. Holloway
<PAGE> 22
[Voting Agreement]
STOCKHOLDER SIGNATURE PAGE
- --------------------------
/s/ Keith R. Jackson
------------------------------------
Keith R. Jackson, M.D.
<PAGE> 23
[Voting Agreement]
STOCKHOLDER SIGNATURE PAGE
- --------------------------
/s/ Keith A. Kowal
------------------------------------
Keith A. Kowal, M.D.
<PAGE> 24
[Voting Agreement]
STOCKHOLDER SIGNATURE PAGE
- --------------------------
/s/ Drew Locandro
------------------------------------
Drew Locandro, M.D.
<PAGE> 25
[Voting Agreement]
STOCKHOLDER SIGNATURE PAGE
- --------------------------
/s/ Samuel A. Mickelson
------------------------------------
Samuel A. Mickelson, M.D.
<PAGE> 26
[Voting Agreement]
STOCKHOLDER SIGNATURE PAGE
- --------------------------
/s/ Harold W. Moss
------------------------------------
Harold W. Moss, M.D.
<PAGE> 27
[Voting Agreement]
STOCKHOLDER SIGNATURE PAGE
- --------------------------
/s/ Thomas U. Muller
------------------------------------
Thomas U. Muller, M.D.
<PAGE> 28
[Voting Agreement]
STOCKHOLDER SIGNATURE PAGE
- --------------------------
/s/ Michael J. Pickford
------------------------------------
Michael J. Pickford, M.D.
<PAGE> 29
[Voting Agreement]
STOCKHOLDER SIGNATURE PAGE
- --------------------------
/s/ Michael F. Pratt
------------------------------------
Michael F. Pratt, M.D.
<PAGE> 30
[Voting Agreement]
STOCKHOLDER SIGNATURE PAGE
- --------------------------
/s/ Richard Rinehart
------------------------------------
Richard Rinehart, M.D.
<PAGE> 31
[Voting Agreement]
STOCKHOLDER SIGNATURE PAGE
- --------------------------
/s/ Burke P. Robinson
------------------------------------
Burke P. Robinson, M.D.
<PAGE> 32
[Voting Agreement]
STOCKHOLDER SIGNATURE PAGE
- --------------------------
/s/ Ted L. Rolander
------------------------------------
Ted L. Rolander, M.D.
<PAGE> 33
[Voting Agreement]
STOCKHOLDER SIGNATURE PAGE
- --------------------------
/s/ Marc H. Routman
------------------------------------
Marc H. Routman, M.D.
<PAGE> 34
[Voting Agreement]
STOCKHOLDER SIGNATURE PAGE
- --------------------------
/s/ William S. Smith
------------------------------------
William S. Smith, M.D.
<PAGE> 35
[Voting Agreement]
STOCKHOLDER SIGNATURE PAGE
- --------------------------
/s/ Arthur J. Torsiglieri
------------------------------------
Arthur J. Torsiglieri, M.D.
<PAGE> 36
[Voting Agreement]
STOCKHOLDER SIGNATURE PAGE
- --------------------------
/s/ Ann K. White
------------------------------------
Ann K. White, M.D.
<PAGE> 37
[Voting Agreement]
STOCKHOLDER SIGNATURE PAGE
- --------------------------
/s/ Gerald R. Benjamin
------------------------------------
Gerald R. Benjamin
<PAGE> 38
[Voting Agreement]
STOCKHOLDER SIGNATURE PAGE
- --------------------------
/s/ Richard D. Ballard
------------------------------------
Richard D. Ballard
<PAGE> 39
[Voting Agreement]
STOCKHOLDER SIGNATURE PAGE
- --------------------------
/s/ Lawrence P. Kraska
------------------------------------
Lawrence P. Kraska
<PAGE> 40
[Voting Agreement]
STOCKHOLDER SIGNATURE PAGE
- --------------------------
/s/ Robert A. Diprova
------------------------------------
Robert A. Diprova
<PAGE> 41
[Voting Agreement]
STOCKHOLDER SIGNATURE PAGE
- --------------------------
BOCK, BENJAMIN & CO. PARTNERS, L.P.
By: Bock, Benjamin & Co., its General Partner
By: /s/ Gerald R. Benjamin
------------------------------------
Gerald R. Benjamin
Chief Executive Officer
<PAGE> 42
EXHIBIT A
---------
<TABLE>
<CAPTION>
Number of Shares of Number of Shares of
Name & Address Target Stock Owned Target Stock Issuable
of Stockholder* by Stockholder upon Exercise of Options
- -------------- -------------- ------------------------
<S> <C> <C>
Daniel Adams, M.D. 139,766
Atlanta Head & Neck-Clairmont 21,250
Michael Avidano, M.D. 20,686
Sanjay Bhansali, M.D. 37, 702
Deborah Burton, M.D. 7,017
William Cornay, M.D. (A) 51,444
Andrew Diamond, M.D. 12,500
Ear, Nose & Throat Specialists- Van Tuyl 15,081
Andrew Golde, M.D. 22,555
David Goodman, M.D. (B) 40,888
Nancy Griner, M.D. 58,000
Christopher Holloway 2,962
Keith Jackson, M.D. 256,862
Keith Kowal, M.D. 122,222
Drew Locandro, M.D. 10,000
Sam Mickelson, M.D. 12,591
Harold Moss, M.D. 16,908
Thomas Muller, M.D. 47,695
Michael Pickford, M.D. 263,050
Michael Pratt, M.D. 7,573
Richard Rinehart, M.D. (B) 10,411
Burke Robinson, M.D. 12,693
Ted Rolader, M.D. (B) 72,234
Marc Routman, M.D. (A) 55,311
William Smith, M.D. 25,000
Arthur Torsiglieri, M.D. 91,825
Ramie Tritt, M.D. 1,761,257 37,619
Ann White, M.D. 135,320
Bock, Benjamin & Co. Partners, L.P. (C) 293,948
Richard Ballard 104,608
Gerald Benjamin 41,190
Robert Diprova 56,802
Larry Kraska 56,259
--------- -------
Subtotals 3,624,751 296,478
TOTAL 3,921,229
</TABLE>
* All c/o Atlanta Ear, Nose& Throat Associates, P.C., 555 Peachtree Dunwoody
Road, Suite 235, Atlanta, Georgia 30342, with the exception of the following:
(A) c/o ENT & Allergy Associates, P.C.
2018 Brookwood Medical Center Drive
Suite 100
Birmingham, Alabama 35209
(B) c/o Otolaryngology Medical & Surgical Associates, Ltd.
730 East Terra Cotta
Crystal Lake, Illinois 60014
(C) c/o Bock, Benjamin & Co.
3414 Peachtree Road, NE
238 Monarch Plaza
Atlanta, Georgia 30326
Attention: G.R. Benjamin
<PAGE> 1
Exhibit 3
EXECUTION COPY
STOCK PURCHASE AGREEMENT
AGREEMENT entered into as of June 14, 1999 by and among TA/Advent VIII,
L.P., TA/Atlantic and Pacific IV, L.P., TA Executives Fund LLC and TA Investors
LLC (each a "TA Investor," and collectively, as the "Buyer"), and the holders of
the capital stock of Physicians' Specialty Corp., a Delaware corporation (the
"Company"), listed on EXHIBIT A (the "Stockholders" and individually a
"Stockholder").
W I T N E S S E T H
-------------------
WHEREAS, the Stockholders own of record and beneficially, or will own
as of the Closing (as hereinafter defined) the number of shares of common stock
of the Company, par value $.001 per share, set forth on EXHIBIT A (said shares
being referred to herein as the "Company Shares"); and
WHEREAS, the Company and TA MergerCo, Inc., a Delaware corporation
("MergerCo"), have entered into an Agreement and Plan of Merger, dated as of the
date hereof (as the same may be amended from time to time, the "Merger
Agreement"), which provides, upon the terms and subject to the conditions
thereof, for the merger of MergerCo with and into the Company (the "Merger"),
with the Company being the surviving corporation;
WHEREAS, the Stockholders have entered into a Roll-over Agreement,
dated as of the date hereof, which provides, upon the terms and subject to the
conditions thereof, for the Stockholders to receive shares of common stock of
the surviving corporation in the Merger in exchange for certain shares of
Company common stock held by the Stockholders that are not set forth on EXHIBIT
A hereto.
WHEREAS, the Stockholders desire to sell all of the Company Shares to
Buyer, and Buyer desires to acquire all of the Company Shares.
NOW, THEREFORE, in order to consummate said purchase and sale and in
consideration of the mutual agreements set forth herein, the parties hereto
agree as follows:
SECTION 1. SALE OF SHARES AND PURCHASE PRICE.
- -----------------------------------------------
1.1 SALE AND TRANSFER OF COMPANY SHARES. In consideration of and in
reliance upon the representations and warranties contained herein and subject to
the terms and conditions of this Agreement, the Stockholders agree to sell, and
Buyer agrees to purchase, at the Closing, the Company Shares, which purchase
shall be allocated among the TA Investors as set forth in EXHIBIT
<PAGE> 2
B attached hereto, as amended from time to time by agreement of each TA
Investor. At the Closing, each Stockholder shall deliver or cause to be
delivered to Buyer certificates representing all of the Company Shares owned by
such Stockholder, as set forth in EXHIBIT A. Such stock certificates shall be
duly endorsed in blank for transfer or shall be presented with stock powers duly
executed in blank, with such signature guarantees and such other documents as
may be reasonably required by Buyer to effect a valid transfer of such Company
Shares by such Stockholder, free and clear of any and all liens, encumbrances,
charges or claims. Each Stockholder by execution of this Agreement hereby
appoints Buyer as his attorney-in-fact to effectuate transfer of the Company
Shares at the Closing (as hereinafter defined).
1.2 PURCHASE PRICE AND PAYMENT. In consideration of the sale by
Stockholders to Buyer of the Company Shares and in reliance upon the
representations and warranties of the Company and the Stockholders herein
contained and made at the Closing and subject to the satisfaction of all of the
conditions contained herein, Buyer agrees that at the Closing it will deliver to
each Stockholder the amount specified in EXHIBIT A hereto by bank cashier check
in Boston Clearing House Funds or by wire transfer of immediately available
funds in accordance with the instructions set forth on EXHIBIT C hereto.
1.3 THE CLOSING. Subject to the terms and conditions contained in this
Agreement, the sale and purchase of the Company Shares hereunder (the "Closing")
shall take place at the offices of Troutman Sanders LLP, NationsBank Plaza, 600
Peachtree Street, NE, Suite 5200, Atlanta, GA 30308-2216, at such time and on a
date (the "Closing Date") to be specified by Buyer, which shall be no later than
the second business day after satisfaction or waiver of all of the conditions
set forth in Section 3 hereof, or at such other place or on such other date as
is mutually agreeable to Buyer and the Stockholders.
1.4 TRANSFER TAXES. All transfer taxes, fees and duties under
applicable law incurred in connection with the sale and transfer of the Company
Shares under this Agreement will be borne and paid by the Stockholders, and the
Stockholders shall promptly reimburse the Company and Buyer for any such tax,
fee or duty which any of them is required to pay under applicable law.
SECTION 2. REPRESENTATIONS AND WARRANTIES.
- --------------------------------------------
2.1 REPRESENTATIONS AND WARRANTIES OF THE STOCKHOLDERS. As a material
inducement to Buyer to enter into this Agreement and acquire the Company Shares,
each Stockholder hereby represents and warrants as to himself or itself that, as
of the date hereof and the Closing Date:
(a) OWNERSHIP. All of the Company Shares set forth opposite
such Stockholder's name on EXHIBIT A attached hereto are owned of record and
beneficially by such Stockholder as of the date hereof except as set forth on
EXHIBIT A, or will be owned of record and beneficially by such Stockholder as of
the Closing Date. Such Stockholder has, except as set forth on EXHIBIT A, and
such Stockholder will have as of the Closing Date, good and marketable title to
such Company Shares, free and clear of all security interests, claims, liens,
pledges, options,
2
<PAGE> 3
encumbrances, charges, agreements, voting trusts, proxies and other arrangements
or restrictions whatsoever ("ENCUMBRANCES"). At the Closing, such Stockholder
shall transfer to Buyer good and marketable title to such Company Shares, free
and clear of all Encumbrances.
(b) ENFORCEABILITY. This Agreement has been duly authorized,
executed and delivered by such Stockholder and constitutes a valid and legally
binding obligation of such Stockholder, enforceable in accordance with its
terms, except to the extent that enforceability may be limited by bankruptcy,
insolvency, moratorium, reorganization and other laws affecting the enforcement
of creditors' rights generally and by general principles of equity.
(c) NO CONFLICTS. The execution, delivery and performance of
this Agreement by such Stockholder does not conflict with, violate or result in
the breach of, or create any lien or encumbrance on his Company Shares pursuant
to, any agreement, instrument, order, judgment, decree, law or governmental
regulation to which such Stockholder is a party or is subject or by which his
Company Shares are bound.
(d) INVESTMENT REPRESENTATION. Such Stockholder acknowledges
that it has been provided access to all information requested by it in order to
evaluate the merits and risks of the transactions contemplated by this
Agreement. Such Stockholder has relied solely upon the advice of his, her or its
own counsel, accountant and other advisors, with regard to the legal,
investment, tax and other considerations regarding this Agreement and the
transactions contemplated hereby.
2.2 REPRESENTATIONS AND WARRANTIES OF BUYER. As a material inducement
to the Stockholders to enter into this Agreement and contribute the Company
Shares, Buyer hereby represents and warrants that, as of the date hereof and the
Closing Date:
(a) ENFORCEABILITY. This Agreement has been duly authorized,
executed and delivered by Buyer and constitutes a valid and legally binding
obligation of Buyer, enforceable in accordance with its terms, except to the
extent that enforceability may be limited by bankruptcy, insolvency, moratorium,
reorganization and other laws affecting the enforcement of creditors' rights
generally and by general principles of equity.
(b) NO CONFLICTS. The execution, delivery and performances of
this Agreement by Buyer does not conflict with, violate or result in a breach of
any agreement, instrument, order, judgement, decree, law or governmental
regulation to which Buyer is a party or is subject.
(c) NO UNREGISTERED DISTRIBUTION. Buyer is purchasing the
Company Shares for investment for Buyer's own account, without any view to the
unregistered public distribution or public resale thereof, all without
prejudice, however, to the right of Buyer at any time lawfully to sell or
otherwise to dispose of all or any part of the Company Shares pursuant to
registration, or an exemption therefrom, under the Act and applicable state
securities laws.
(d) RESTRICTED SECURITIES. Buyer understands that the Company
Shares it is purchasing are characterized as "restricted securities" under the
federal securities laws and that
3
<PAGE> 4
under such laws and applicable regulations such securities may be resold without
registration under the Act only in certain limited circumstances.
(e) INVESTOR SUITABILITY. Buyer represents and warrants that
it is an accredited investor as defined in Rule 501 under the Securities Act of
1933, as amended, and has the capacity to evaluate the merits and risks of an
investment in the Company Shares and is able to bear the economic risk of this
investment. Buyer acknowledges that it has been provided access to all
information requested by it in order to evaluate the merits and risks of an
investment in the Company Shares.
(f) LEGENDS. It is understood that the certificates evidencing
the Company Shares may bear one or all of the following legends:
(a) "THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED. THEY MAY NOT BE SOLD, OFFERED FOR SALE,
PLEDGED OR HYPOTHECATED IN THE ABSENCE OF A REGISTRATION STATEMENT IN EFFECT
WITH RESPECT TO THE SECURITIES UNDER SUCH ACT OR AN EXEMPTION FROM REGISTRATION
UNDER SUCH ACT."
(b) Any legend required by applicable state laws.
SECTION 3. CONDITIONS.
- ------------------------
3.1 CONDITIONS TO STOCKHOLDERS' OBLIGATIONS. The obligation of the
Stockholders to consummate the transactions contemplated hereby shall be subject
to fulfillment or waiver, at or prior to the Closing Date, of the following
conditions:
(a) the Stockholders shall have received from Buyer a
certificate of Buyer, dated as of the Closing Date, to the effect that each
condition to Buyer's obligation to consummate the Merger, as set forth in the
Merger Agreement, has been satisfied and Buyer knows of no reason why the Merger
will not be consummated immediately following the Closing; and
(b) the representations and warranties of Buyer herein shall
be true and correct in all material respects as of the Closing Date.
3.2 CONDITIONS TO BUYER'S OBLIGATIONS. The obligation of Buyer to
consummate the transactions contemplated hereby shall be subject to fulfillment
or waiver, at or prior to the Closing Date, of the following conditions:
(a) Buyer shall have received from Target a certificate of
Target, dated as of the Closing Date, to the effect that each condition to
Target's obligation to consummate the Merger, as set forth in the Merger
Agreement, has been satisfied and Target knows of no reason why the Merger will
not be consummated immediately following the Closing; and
4
<PAGE> 5
(b) the representations and warranties of the Stockholders
herein shall be true and correct in all material respects as of the Closing
Date.
SECTION 4. GENERAL PROVISIONS.
- --------------------------------
4.1 TRANSFEROR'S CERTIFICATE OF NON-FOREIGN STATUS. Prior to the
Closing Date each Stockholder shall deliver to Buyer a "transferor's certificate
of non-foreign status" as provided in the Treasury Regulations under Section
1445 of the Code in the form attached hereto as Exhibit D attached hereto.
4.2 SUCCESSORS AND ASSIGNS. All covenants and agreements in this
Agreement by or on behalf of any of the parties hereto will bind and inure to
the benefit of the respective successors and assigns of the parties hereto
whether so expressed or not.
4.3 FURTHER ASSURANCE. After the Closing, as and when requested by
Buyer, the Stockholders shall, without further consideration, execute and
deliver all such instruments of conveyance and transfer and shall take such
further actions as Buyer may deem reasonably necessary or desirable in order to
transfer the Company Shares to Buyer and to carry out fully the provisions and
purposes of this Agreement.
4.4 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All representations and
warranties contained herein or made in writing by any party in connection
herewith shall survive the execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby.
4.5 SEVERABILITY. Whenever possible, each provision of this Agreement
shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be invalid,
illegal or unenforceable in any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality or unenforceability shall not affect
any other provision or any other jurisdiction, but this Agreement shall be
reformed, construed and enforced in such jurisdiction as if such invalid,
illegal or unenforceable provision had never been contained herein.
4.6 COMPLETE AGREEMENT. This Agreement, those documents expressly
referred to herein and other documents of even date herewith embody the complete
agreement and understanding among the parties and supersede and preempt any
prior understandings, agreements or representations by or among the parties,
written or oral, which may have related to the subject matter hereof in any way.
4.7 COUNTERPARTS. This Agreement may be executed in separate
counterparts each of which shall be an original and all of which taken together
shall constitute one and the same agreement.
5
<PAGE> 6
4.8 SPECIFIC PERFORMANCE. The parties hereto agree that irreparable
damage would occur in the event any provision of this Agreement was not
performed in accordance with the terms hereof or was otherwise breached. It is
accordingly agreed that the parties shall be entitled to specific relief
hereunder, including, without limitation, an injunction or injunctions to
prevent and enjoin breaches of the provisions of this Agreement and to enforce
specifically the terms and provisions hereof, in any state or federal court in
the State of Delaware, in addition to any other remedy to which they may be
entitled at law or in equity. Any requirements for the securing or posting of
any bond with respect to any such remedy are hereby waived.
4.9 CHOICE OF LAW/CONSENT TO JURISDICTION. All disputes, claims or
controversies arising out of or relating to this Agreement, or the negotiation,
validity or performance of this Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware without regard to its rules of
conflict of laws. Each Stockholder and Buyer hereby irrevocably and
unconditionally consents to submit to the sole and exclusive jurisdiction of the
courts of the State of Delaware and of the United States located in the State of
Delaware (the "DELAWARE COURTS") for any litigation arising out of or relating
to this Agreement, or the negotiation, validity or performance of this Agreement
(and agrees not to commence any litigation relating thereto except in such
courts), waives any objection to the laying of venue of any such litigation in
the Delaware Courts and agrees not to plead or claim in any Delaware Court that
such litigation brought therein has been brought in any inconvenient forum. Each
of the parties hereto agrees, (a) to the extent such party is not otherwise
subject to service of process in the State of Delaware, to appoint and maintain
an agent in the State of Delaware as such party's agent for acceptance of legal
process, and (b) that service of process may also be made on such party by
prepaid certified mail with a proof of mailing receipt validated by the United
States Postal Service constituting evidence of valid service. Service made
pursuant to (a) or (b) above shall have the same legal force and effect as if
served upon such party personally within the State of Delaware. For purposes of
implementing the parties' agreement to appoint and maintain an agent for service
of process in the State of Delaware, each such party does hereby appoint CT
Corporation, Corporation Trust Center, 1209 Orange Street, Wilmington, DE 19801,
as such agent.
4.10 CONSTRUCTION. Whenever the context requires, each term stated in
either the singular or the plural shall include the singular and the plural and
pronouns stated in either the masculine, the feminine or the neuter gender shall
include the masculine, feminine and neuter. All references to Sections and
Paragraphs refer to sections and paragraphs of this Agreement. The use of the
word "including" in this Agreement shall be by way of example rather than
limitation.
4.11 AMENDMENT AND WAIVER. The provisions of this Agreement may be
amended and waived only with the prior written consent of each of the parties
hereto provided, however, that Buyer may in writing waive or consent to a
modification of any provision of this Agreement with respect to any Stockholder
without the agreement of any other party hereto, and provided, further, that
EXHIBIT B may be amended by agreement of each TA Investor. Notwithstanding the
foregoing sentence, the provisions of this Agreement may not be amended or
waived in a manner that would adversely affect the rights of the Company
hereunder without the prior written consent of the Company.
6
<PAGE> 7
4.12 THIRD PARTY BENEFICIARY. The Company is a third-party beneficiary
of this Agreement and shall be entitled to enforce this Agreement against each
of the Stockholders in the same manner as if it were a party hereto.
4.13 NO AGREEMENT UNTIL EXECUTED. Irrespective of negotiations among
the parties or the exchanging of drafts of this Agreement, this Agreement shall
not constitute or be deemed to evidence a contract, agreement, arrangement or
understanding among the parties hereto unless and until (i) the Board of
Directors of the Company has approved, for purposes of Section 203 of the
Delaware General Corporation Law and any applicable provision of the Company's
Certificate of Incorporation, the terms of the Merger, and (ii) this Agreement
is executed by the parties hereto.
4.14 EXCULPATION. No Stockholder shall have any liability or obligation
whatsoever under or by reason of this Agreement because of a breach by any other
Stockholder of its obligations, representations or warranties hereunder.
4.15 TERMINATION. Notwithstanding anything in this Agreement to the
contrary, this Agreement shall terminate upon the termination of the Merger
Agreement pursuant to Section 9.1 thereof.
7
<PAGE> 8
IN WITNESS WHEREOF, the parties hereto have executed this Stock
Purchase Agreement on the date first written above.
BUYER:
-----
TA/ADVENT VIII, L.P.
By: TA Associates VIII LLC, its General Partner
By: TA Associates, Inc., its General Partner
By: /s/ Richard Tadler
-----------------------------------
Richard Tadler
Managing Director
TA/ATLANTIC AND PACIFIC IV, L.P.
By: TA Associates AP IV, L.P., its General Partner
By: TA Associates, Inc., its General Partner
By: /s/ Richard Tadler
-----------------------------------
Richard Tadler
Managing Director
TA INVESTORS, LLC
By: TA Associates, Inc., its Manager
By: /s/ Richard Tadler
-----------------------------------
Richard Tadler
Managing Director
TA EXECUTIVES FUND, LLC
By: TA Associates, Inc., its Manager
By: /s/ Richard Tadler
-----------------------------------
Richard Tadler
Managing Director
<PAGE> 9
STOCKHOLDER SIGNATURE PAGE
- --------------------------
/s/ Ramie A. Tritt
-----------------------------------
Ramie A. Tritt, M.D.
<PAGE> 10
STOCKHOLDER SIGNATURE PAGE
- --------------------------
/s/ Daniel M. Adams
-----------------------------------
Daniel M. Adams, M.D.
<PAGE> 11
STOCKHOLDER SIGNATURE PAGE
- --------------------------
ATLANTA HEAD & NECK, P.C.
By: /s/ Albert A. Clairmont
-----------------------------------
Name: Albert A. Clairmont, M.D
Title:
<PAGE> 12
STOCKHOLDER SIGNATURE PAGE
- --------------------------
/s/ Michael A. Avidano
-----------------------------------
Michael A. Avidano, M.D.
<PAGE> 13
STOCKHOLDER SIGNATURE PAGE
- --------------------------
/s/ Sanjay Bhansali
-----------------------------------
Sanjay Bhansali, M.D.
<PAGE> 14
STOCKHOLDER SIGNATURE PAGE
- --------------------------
/s/ Deborah M. Burton
-----------------------------------
Deborah M. Burton, M.D.
<PAGE> 15
STOCKHOLDER SIGNATURE PAGE
- --------------------------
/s/ Willie J. Cornay
-----------------------------------
Willie J. Cornay, M.D.
<PAGE> 16
STOCKHOLDER SIGNATURE PAGE
- --------------------------
/s/ Andrew J. Diamond
-----------------------------------
Andrew J. Diamond, M.D.
<PAGE> 17
STOCKHOLDER SIGNATURE PAGE
- --------------------------
EAR, NOSE & THROAT SPECIALISTS, P.C.
By: /s/ Ronald A. Van Tuyl
-----------------------------------
Name: Ronald A. Van Tuyl, M.D.
Title:
<PAGE> 18
STOCKHOLDER SIGNATURE PAGE
- --------------------------
/s/ Andrew R. Golde
-----------------------------------
Andrew R. Golde, M.D.
<PAGE> 19
STOCKHOLDER SIGNATURE PAGE
- --------------------------
/s/ David A. Goodman
-----------------------------------
David A. Goodman, M.D.
<PAGE> 20
STOCKHOLDER SIGNATURE PAGE
- --------------------------
/s/ Nancy R. Griner
-----------------------------------
Nancy R. Griner, M.D.
<PAGE> 21
STOCKHOLDER SIGNATURE PAGE
- --------------------------
/s/ Christopher B. Holloway
-----------------------------------
Christopher B. Holloway
<PAGE> 22
STOCKHOLDER SIGNATURE PAGE
- --------------------------
/s/ Keith R. Jackson
-----------------------------------
Keith R. Jackson, M.D.
<PAGE> 23
STOCKHOLDER SIGNATURE PAGE
- --------------------------
/s/ Keith A. Kowal
-----------------------------------
Keith A. Kowal, M.D.
<PAGE> 24
STOCKHOLDER SIGNATURE PAGE
- --------------------------
/s/ Samuel A. Mickelson
-----------------------------------
Samuel A. Mickelson, M.D.
<PAGE> 25
STOCKHOLDER SIGNATURE PAGE
- --------------------------
/s/ Harold W. Moss
-----------------------------------
Harold W. Moss, M.D.
<PAGE> 26
STOCKHOLDER SIGNATURE PAGE
- --------------------------
/s/ Thomas U. Muller
-----------------------------------
Thomas U. Muller, M.D.
<PAGE> 27
STOCKHOLDER SIGNATURE PAGE
- --------------------------
/s/ Michael J. Pickford
-----------------------------------
Michael J. Pickford, M.D.
<PAGE> 28
STOCKHOLDER SIGNATURE PAGE
- --------------------------
/s/ Michael F. Pratt
-----------------------------------
Michael F. Pratt, M.D.
<PAGE> 29
STOCKHOLDER SIGNATURE PAGE
- --------------------------
/s/ Richard Rinehart
-----------------------------------
Richard Rinehart, M.D.
<PAGE> 30
STOCKHOLDER SIGNATURE PAGE
- --------------------------
/s/ Burke P. Robinson
-----------------------------------
Burke P. Robinson, M.D.
<PAGE> 31
STOCKHOLDER SIGNATURE PAGE
- --------------------------
/s/ Ted L. Rolander
-----------------------------------
Ted L. Rolander, M.D.
<PAGE> 32
STOCKHOLDER SIGNATURE PAGE
- --------------------------
/s/ Marc H. Routman
-----------------------------------
Marc H. Routman, M.D.
<PAGE> 33
STOCKHOLDER SIGNATURE PAGE
- --------------------------
/s/ William S. Smith
-----------------------------------
William S. Smith, M.D.
<PAGE> 34
STOCKHOLDER SIGNATURE PAGE
- --------------------------
/s/ Arthur J. Torsiglieri
-----------------------------------
Arthur J. Torsiglieri, M.D.
<PAGE> 35
STOCKHOLDER SIGNATURE PAGE
- --------------------------
/s/ Ann K. White
-----------------------------------
Ann K. White, M.D.
<PAGE> 36
STOCKHOLDER SIGNATURE PAGE
- --------------------------
/s/ Gerald R. Benjamin
-----------------------------------
Gerald R. Benjamin
<PAGE> 37
STOCKHOLDER SIGNATURE PAGE
- --------------------------
/s/ Richard D. Ballard
-----------------------------------
Richard D. Ballard
<PAGE> 38
STOCKHOLDER SIGNATURE PAGE
- --------------------------
/s/ Lawrence P. Kraska
-----------------------------------
Lawrence P. Kraska
<PAGE> 39
STOCKHOLDER SIGNATURE PAGE
- --------------------------
/s/ Robert A. Diprova
-----------------------------------
Robert A. Diprova
<PAGE> 40
STOCKHOLDER SIGNATURE PAGE
- --------------------------
BOCK, BENJAMIN & CO. PARTNERS, L.P.
By: Bock, Benjamin & Co., its General Partner
By: /s/ Gerald R. Benjamin
-----------------------------------
Gerald R. Benjamin
Chief Executive Officer
<PAGE> 41
EXHIBIT A
<TABLE>
<CAPTION>
Company Shares
--------------
Stockholder Beneficially Owned/purchased Owned of Record Purchase Price
- ----------- ---------------------------- --------------- --------------
<S> <C> <C> <C>
Daniel Adams, M.D 106,488 106,488 $ 1,118,124.00
Atlanta Head & Neck-Clairmont 16,190 16,190 $ 169,995.00
Michael Avidano, M.D 15,761 15,761 $ 165,490.50
Sanjay Bhansali, M.D 28,725 28,725 $ 301,612.50
Deborah Burton, M.D 5,000 5,000 $ 52,500.00
William Cornay, M.D 39,195 39,195 $ 411,547.50
Andrew Diamond, M.D 9,524 9,524 $ 100,002.00
ENT Specialists- Van Tuyl 11,490 11,490 $ 120,645.00
Andrew Golde, M.D 17,185 17,185 $ 180,442.50
David Goodman, M.D 31,153 31,153 $ 327,106.50
Nancy Griner, M.D 44,190 44,190 $ 463,995.00
Christopher Holloway 2,257 2,257 $ 23,698.50
Keith Jackson, M.D 128,431 128,431 $ 1,348,525.50
Keith Kowal, M.D 93,121 93,121 $ 977,770.50
Sam Mickelson, M.D 5,591 5,591 $ 58,705.50
Harold Moss, M.D 12,882 12,882 $ 135,261.00
Thomas Muller, M.D 36,339 36,339 $ 381,559.50
Michael Pickford, M.D 200,418 200,418 $ 2,104,389.00
Michael Pratt, M.D 5,770 5,770 $ 60,585.00
Richard Rinehart, M.D 7,932 7,932 $ 83,286.00
Burke Robinson, M.D 9,671 9,671 $ 101,545.50
Ted Rolader, M.D 35,000 35,000 $ 367,500.00
Marc Routman, M.D 42,142 42,142 $ 442,491.00
William Smith, M.D 19,048 19,048 $ 200,004.00
Arthur Torsiglieri, M.D 69,962 69,962 $ 734,601.00
Ramie Tritt, M.D 396,001 380,953 $ 4,158,010.50
Ann White, M.D 103,101 103,101 $ 1,082,560.50
Bock, Benjamin & Co. Partners, L.P. 266,448 266,448 $ 2,797,704.00
Richard Ballard 41,843 0 $ 439,351.50
Gerald Benjamin 16,476 0 $ 172,998.00
Robert Diprova 34,081 0 $ 357,850.50
Larry Kraska 22,504 0 $ 236,292.00
--------- --------- --------------
TOTALS 1,873,919 1,743,967 $19,676,149.50
</TABLE>
