INVESTMENT AND STOCKHOLDERS' AGREEMENT
--------------------------------------
THIS INVESTMENT AND STOCKHOLDERS' AGREEMENT (the "Agreement") is made as of
March 6, 1998, by and among Sheridan Healthcare, Inc., a Delaware corporation
("SHCR"), and the individuals who are identified as Stockholders of SHCR on
Schedule A attached to this Agreement (each a "SHCR Stockholder", and
collectively, the "SHCR Stockholders").
PRELIMINARY STATEMENTS
----------------------
Reference is made to: (i) the Management Services Agreement, dated as of
March 6, 1998 by and among Gynecologic Oncology Associates, Inc., a Florida
corporation (the "Company"), Staffan R.B. Nordqvist, M.D. ("Nordqvist"), and
Sheridan Healthcorp, Inc., a Florida corporation ("Sheridan"); (ii) the Purchase
Option Agreement, dated as of March 6, 1998 by and among SHCR, the Company and
Nordqvist; (iii) the Restrictive Covenant Agreement, dated as of March 6, 1998
by and between the Company and Nordqvist; (iv) the Restrictive Covenant
Agreement, dated as of March 6, 1998 by and between Sheridan and Nordqvist; and
(vi) each of the Physician Employment Agreements, dated as of March 6, 1998 by
and between the Company and each of the SHCR Stockholders respectively
(collectively, the "Related Documents"). Capitalized terms not defined in this
Agreement shall have the meanings given them in the Related Documents,
applicable to each respective SHCR Stockholder.
The parties to this Agreement desire to set forth the terms of their
interest in the securities of SHCR.
In consideration of the foregoing and the mutual covenants and agreements
contained in this Agreement, the parties to this Agreement agree as follows:
ARTICLE I ACQUISITION OF SECURITIES
- --------- -------------------------
Section 1 Acquisition of SHCR Common Stock by SHCR Stockholders. In
connection with the execution and delivery of the Related Documents and the
consummation of the transactions contemplated by the MSA, each SHCR Stockholder
has been issued by SHCR the respective number of shares of SHCR Common Stock (as
defined in the Purchase Option Agreement), set forth opposite the name of that
Stockholder on Schedule A to this Agreement.
ARTICLE II THE CLOSING
- ---------- -----------
Section 1 Closing. The delivery and acceptance of the shares of SHCR Common
Stock being acquired by the SHCR Stockholders pursuant to the Related Documents
applicable to each respective SHCR Stockholder (the "Closing Shares"), shall
take place at the offices of Sheridan concurrently with the Closing of the
transactions contemplated by the Related Documents, or at a later date as agreed
to in writing by the parties and subject to satisfaction or waiver of all of the
conditions set forth in the Related Documents and in this Agreement. For the
purposes of this Agreement, the term "Closing Shares" shall mean: (a) any shares
of SHCR Common Stock issued at Closing or at a later date as agreed to in
writing by the parties, pursuant to the Related Documents; and, (b) any
securities of SHCR issued or issuable with respect to any of the shares
described in clause (a) above by way of a stock dividend or stock split or in
connection with a combination of shares, recapitalization, merger, consolidation
or other reorganization (it being understood that for purposes of this
Agreement, a person will be deemed to be a holder of Closing Shares whenever
that person has the right to then acquire or obtain from SHCR any Closing
Shares, whether or not that acquisition has actually been effected).
ARTICLE III RESTRICTIONS ON TRANSFER
- ----------- ------------------------
Section 1 Restrictions on Transfer of Closing Shares.
(a) Each SHCR Stockholder agrees not to offer, transfer, donate, sell,
assign, pledge, hypothecate or otherwise dispose of (collectively "Transfer" and
the result of any of these actions is a "Transfer") any Closing Shares now or
hereafter acquired or other rights in respect to those Closing Shares or rights
pursuant to this Agreement, whether occurring voluntarily or involuntarily,
directly or indirectly, or by operation of law or otherwise, except that a SHCR
Stockholder may Transfer Closing Shares in accordance with the provisions of
Article III, Section 1(b).
(b) Notwithstanding anything in this Agreement, the following
transactions shall be exempt from the prohibition on Transfers in Section 1 of
this Article III:
(i) Transfers between a SHCR Stockholder and the trustees of a
trust revocable by that SHCR Stockholder alone and the sole
beneficiary of which is that SHCR Stockholder;
(ii) Transfers by gift by a SHCR Stockholder to that SHCR
Stockholder's spouse or issue or to the trustees or a trust for the
benefit of that spouse and/or issue;
(iii) Transfers between a SHCR Stockholder and that SHCR
Stockholder's guardian or conservator; and,
(iv) Transfers upon the death of a SHCR Stockholder by will,
intestacy laws or the laws of survivorship to that SHCR Stockholder's
personal representatives, heirs or delegatees.
provided, however, that, except in the case of Transfers pursuant to
Article III, the transferee agrees in writing for the benefit of the other SHCR
Stockholders and SHCR, as a condition to that Transfer, to be bound by all of
the provisions of this Agreement to the same extent as was the transferor prior
to that Transfer; and provided, further, that any of these transferees shall
take all Closing Shares and rights so transferred subject to all the provisions
of this Agreement as if those Closing Shares or rights were still held by the
2
SHCR Stockholder who made the Transfer. If any Transfer is effected in
accordance with the provisions of this Article III, Section 1(b)(i), (ii), (iii)
or (iv), then the transferee shall be referred to as a "Permitted Transferee,"
and for all purposes of this Agreement unless expressly indicated to the
contrary, the Permitted Transferee shall be deemed to be a "SHCR Stockholder,"
but only to the extent that the transferor was included within that definition
prior to the transfer.
(c) If any Transfer by a SHCR Stockholder is made or attempted
contrary to the provisions of this Agreement, that purported Transfer shall be
void ab initio; SHCR and the other SHCR Stockholders (and their transferees)
shall have, in addition to any other legal or equitable remedies which they may
have, the right to enforce the provisions of this Agreement by actions for
specific performance (to the extent permitted by law); and SHCR shall have the
right to refuse to recognize any Transferee of a SHCR Stockholder pursuant to
any Transfer that is made or attempted contrary to the provisions of this
Agreement as one of its stockholders for any purpose.
Section 2 Termination of Restrictions on Transfer of Closing Shares. The
provisions of this Article III, as they relate to certain Closing Shares, shall
terminate and be of no further force and effect as of March 5, 1999.
ARTICLE IV REPRESENTATIONS AND WARRANTIES OF THE SHCR STOCKHOLDERS
- ---------- -------------------------------------------------------
By execution of a counterpart of this Agreement, any SHCR Stockholder at
the time of that execution makes the following representations and warranties to
SHCR, these representations and warranties being made in connection with the
issuance of the Closing Shares:
1. This Agreement is made in reliance on each SHCR Stockholder's
representations to SHCR that all Closing Shares acquired by that SHCR
Stockholder will be acquired for investment for that SHCR Stockholder's own
account, not as a nominee or agent, and not with a view toward distribution
of any part thereof, and that SHCR Stockholder has, except as otherwise
contemplated in the Related Documents, no present intention of selling,
granting participation in, or otherwise distributing those Closing Shares.
2. Each SHCR Stockholder understands that the Closing Shares will not be
registered under the Securities Act, on the ground that the sale and
issuance of the same are exempt from registration under Section 4(2) of the
Securities Act, and that SHCR's reliance on that exemption is predicated on
the representations of each SHCR Stockholder set forth in this Agreement.
3. Each SHCR Stockholder understands that the Closing Shares may not be
sold, transferred or otherwise disposed of without registration under the
Securities Act or an exemption therefrom, and that in the absence of an
effective registration statement covering the Closing Shares or an
available exemption from registration under the Securities Act, the Closing
Shares must be held indefinitely. Each SHCR Stockholder agrees that, in
3
addition to any other applicable limitations on the transfer of the Closing
Shares, in no event will it make a transfer, pledge or other disposition of
any of the Closing Shares other than pursuant to an effective registration
statement under the Securities Act, unless and until: (i) that SHCR
Stockholder shall have notified SHCR of the proposed disposition and shall
have furnished to SHCR a statement of the circumstances surrounding the
disposition; and, (ii) if Sheridan reasonably determines Rule 144 is not
available as an exemption, then at the expense of the SHCR Stockholder or
its transferee, it shall have furnished to SHCR an opinion of counsel
reasonably satisfactory to SHCR and its counsel to the effect that the
proposed transfer, pledge or other disposition may be made without
registration under the Securities Act.
4. Each SHCR Stockholder: (i) by reason of his or her business and
financial experience, has that knowledge, sophistication and experience in
business and financial matters as to be capable of evaluating the merits and
risks of his or her investment in the Closing Shares; and, (ii) believes his or
her financial condition and investments enable him or her to bear the economic
risk of a complete loss of the Closing Shares. Each SHCR Stockholder has
consulted with its own advisers with respect to their proposed investment in
SHCR. Each SHCR Stockholder has had the opportunity to ask questions and to
receive answers concerning the financial condition, operations and prospects of
SHCR and the terms and conditions of the SHCR Stockholder's investment, as well
as the opportunity to obtain any additional information necessary to verify the
accuracy of information furnished in connection therewith that SHCR possesses or
can acquire without unreasonable effort or expense. In addition, the SHCR
Stockholder acknowledges that he or she has received prior to the execution of
this Agreement the following documentation: (i) a prospectus for SHCR, dated as
of October 31, 1995 (ii) annual reports for 1995 and 1996; (iii) 10Ks for 1995
and 1996; and, (iv) SHCR's Form 10-Q for the time period ended September 30,
1997. Each SHCR Stockholder has carefully reviewed that documentation and has
had the opportunity to review that documentation with his or her own advisers
and SHCR.
6. Each SHCR Stockholder is an individual who either (i) has an individual net
worth, or joint net worth with that SHCR Stockholder's spouse as of the date
hereof which exceeds One Million Dollars ($1,000,000.00); or (ii) has had income
in excess of Two Hundred Thousand Dollars ($200,000.00) in each of the two (2)
most recent years or joint income with that SHCR Stockholder's spouse in excess
of Three Hundred Thousand Dollars ($300,000.00) in each of those years and has a
reasonable expectation of reaching the same income level in the current year.
7. Each SHCR Stockholder's legal domicile for purposes of the applicable
securities laws is as set forth on Schedule A attached to this Agreement
executed by that SHCR Stockholder.
8. This Agreement and each agreement, instrument and document to be
executed and delivered by each SHCR Stockholder pursuant to or as contemplated
by this Agreement constitute, or when executed and delivered by that SHCR
4
Stockholder will constitute, valid and binding obligations of that SHCR
Stockholder enforceable in accordance with their respective terms.
9. The execution, delivery and performance by each SHCR Stockholder of this
Agreement and each agreement, document and instrument:
(d) do not and will not violate any laws, rules or regulations of the
United States or any state or other jurisdiction applicable to that SHCR
Stockholder, or require that SHCR Stockholder to obtain any approval,
consent or waiver of, or to make any filing with, any person that has not
been obtained or made; and
(e) do not and will not result in a breach of, constitute a default
under, accelerate any obligation under or give rise to a right of
right of termination of any indenture or loan agreement or any
other agreement, contract, instrument, mortgage, lien, lease, permit,
authorization, order, writ, judgment, injunction, decree, determination
or arbitration award to which that SHCR Stockholder is a party or by
which the property of that SHCR Stockholder is bound or affected, or
result in the creation or imposition of any mortgage, pledge, lien,
security interest or other charge or encumbrance on any of the
assets or properties of that SHCR Stockholder.
ARTICLE V MISCELLANEOUS PROVISIONS
- --------- ------------------------
Section 1 Survival of Representations and Warranties. The SHCR Stockholders
agree that each representation, warranty, covenant and agreement made by them in
this Agreement or in any certificate, instrument or other document delivered
pursuant to this Agreement is material, shall be deemed to have been relied upon
by SHCR, shall remain operative and in full force and effect after the date of
this Agreement regardless of any investigation or the acceptance of securities
hereunder and payment therefor.
This Agreement shall not be construed so as to confer any right or benefit
upon any Person other than the parties to this Agreement and their respective
successors and permitted assigns.
Section 2 Legend on Securities. SHCR and the SHCR Stockholders acknowledge
and agree that substantially the following legend shall be typed on each
certificate evidencing any of the securities issued under the Related Documents
or held at any time by the SHCR Stockholders (and their transferees):
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT BE OFFERED, SOLD,
TRANSFERRED, HYPOTHECATED OR OTHERWISE ASSIGNED EXCEPT PURSUANT TO: (1) A
REGISTRATION STATEMENT WITH RESPECT TO THESE SECURITIES WHICH IS EFFECTIVE UNDER
THAT ACT; OR, (2) AN AVAILABLE EXEMPTION FROM REGISTRATION UNDER THAT ACT
5
RELATING TO THE DISPOSITION OF SECURITIES. THESE SECURITIES ARE ALSO SUBJECT TO
THE PROVISIONS OF A CERTAIN INVESTMENT AND STOCKHOLDERS' AGREEMENT, DATED AS OF
MARCH 6, 1998, INCLUDING CERTAIN RESTRICTIONS ON TRANSFER SET FORTH IN THAT
AGREEMENT. A COMPLETE AND CORRECT COPY OF THAT AGREEMENT IS AVAILABLE FOR
INSPECTION AT THE PRINCIPAL OFFICE OF SHERIDAN AND WILL BE FURNISHED UPON
WRITTEN REQUEST AND WITHOUT CHARGE.
SHCR IS AUTHORIZED TO ISSUE MORE THAN ONE CLASS OF STOCK. SHCR WILL FURNISH
TO EACH SHCR STOCKHOLDER WHO SO REQUESTS A COPY OF THE POWERS, DESIGNATIONS,
PREFERENCES AND RELATIVE RIGHTS AND LIMITATIONS OF EACH OUTSTANDING CLASS OF
STOCK OF SHCR.
Section 3 Amendment and Waiver. Any party may waive any provision of this
Agreement intended for its benefit in writing. Except as specifically set forth
in this Agreement to the contrary, no failure or delay on the part of any party
to this Agreement in exercising any right, power or remedy under this Agreement
shall operate as a waiver. The remedies in this Agreement are cumulative and are
not exclusive of any remedies that may be available to any party to this
Agreement at law or in equity or otherwise. This Agreement may only be amended
with the prior written consent of all parties.
Section 4 Notices. Whenever any notice, request, information or other
document is required or permitted to be given under this Agreement, that notice,
demand or request shall be in writing and shall be either hand delivered, sent
by United States certified mail, postage prepaid or delivered via overnight
courier to the addresses below or to any other address that any party may
specify by notice to the other parties. No party shall be obligated to send more
than one notice to each of the other parties and no notice of a change of
address shall be effective until received by the other parties. A notice shall
be deemed received upon hand delivery, two days after posting in the United
States mail or one day after dispatch by overnight courier.
SHCR: Sheridan Healthcare, Inc.
4651 Sheridan Street, Suite 400
Hollywood, Florida 33021
Attn: Mitchell Eisenberg, M.D.,
President
with a copy to: Sheridan Healthcare, Inc.
4651 Sheridan Street, Suite 400
Hollywood, Florida 33021
Attn: Jay A. Martus, Esq.
To SHCR Stockholders: At the Addresses listed on Schedule A attached to
this Agreement
6
with a copy to: Geiger, Kasdin, Heller, Kuperstein, Chames & Weil, P.A.
1428 Brickell Avenue, 6th Floor
Miami, Florida 33131
Attn: Stanley H. Kuperstein, Esq., as counsel to
Dr. Nordqvist
and McDermott, Will & Emery, P.A.
201 South Biscayne Boulevard, 22nd Floor
Miami, Florida 33131
Attn: Joseph Ignacio Zumpano, Esq., as counsel to
Dr. King
or to any other address of which any party may notify the other parties as
provided above.
Section 5 Headings. The Article and Section headings used or contained in
this Agreement are for convenience of the reference only and shall not affect
the construction of this Agreement.
Section 6 Counterparts. This Agreement may be executed in one or more
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which together
shall be deemed to constitute one and the same agreement.
Section 7 Remedies; Severability. It is specifically understood and agreed
that any breach of the provisions of this Agreement by any person subject to
this Agreement will result in irreparable injury to the other parties to this
Agreement, that the remedy at law alone will be an inadequate remedy for that
breach, and that, in addition to any other legal or equitable remedies which
they may have, those other parties may enforce their respective rights by
actions for specific performance (to the extent permitted by law) and SHCR may
refuse to recognize any unauthorized transferee as one of its stockholders for
any purpose, including, without limitation, for purposes of dividend and voting
rights, until the relevant party or parties have complied with all applicable
provisions of this Agreement. In the event that any one or more of the
provisions contained in this Agreement, or the application thereof in any
circumstances, is held invalid, illegal or unenforceable in any respect for any
reason, the validity, legality and enforceability of that provision in every
other respect and of the remaining provisions contained in this Agreement shall
not be in any way impaired thereby, it being intended that all of the rights and
privileges of the parties to this Agreement shall be enforceable to the fullest
extent permitted by law.
Section 8 Entire Agreement. This Agreement is intended by the parties as a
final expression of their agreement and intended to be complete and exclusive
statement of the agreement and understanding of the parties to this Agreement in
respect of the subject matter contained in this Agreement and their agreement
and understanding. This Agreement supersedes all prior agreements and
understandings between the parties with respect to that subject matter.
7
Section 9 Adjustments. All references to share prices and amounts herein
shall be equitably adjusted to reflect stock splits, stock dividends,
recapitalizations and similar changes affecting the capital stock of SHCR.
Section 10 Law Governing. This Agreement shall be construed and enforced in
accordance with and governed by the laws of the state of Delaware (without
giving effect to principles of conflicts of law).
Section 11 Construction. This Agreement shall be construed without regard
to any presumption or other rule requiring construction against the party
causing this Agreement to be drafted, including any presumption of superior
knowledge or responsibility based upon a party's business or profession or any
professional training, experience, education or degrees of any member, agent,
officer or employee of any party. If any words in this Agreement have been
stricken out or otherwise eliminated (whether or not any other words or phrases
have been added) and the stricken words initialed by the party against whom the
words are construed, then this Agreement shall be construed as if the words so
stricken out or otherwise eliminated were never included in this Agreement and
no implication or inference shall be drawn from the fact that those words were
stricken out or otherwise eliminated.
Section 12. Jury Trial. EACH PARTY WAIVES ALL RIGHTS TO ANY TRIAL BY
JURY IN ALL LITIGATION RELATING TO OR ARISING OUT OF THIS AGREEMENT.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
SHCR:
SHERIDAN HEALTHCARE, INC.
By:
-----------------------------------
Jay A. Martus, Vice President
SHCR STOCKHOLDERS:
-----------------------------------
Staffan R.B. Nordqvist, M.D.
-----------------------------------
Laurel A. King, M.D.
8
SCHEDULE A
Name and Address Consideration Paid
of SHCR Stockholder in SHCR Stock
Staffan R.B. Nordqvist, M.D.
5700 LaGorce Drive
Miami Beach, Florida 33140 $475,000.00
Laurel A. King, M.D.
4435 Banyan Lane
Miami, Florida 33137 $75,000.00
9