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TENDER AGREEMENT
TENDER AGREEMENT, dated as of March 24, 1999 (this
"Agreement"), between Vestar/Calvary Holdings, Inc., a Delaware corporation (the
"Company"), and Robert J. Coward (the "Executive").
WHEREAS, concurrently herewith, the Company, Vestar/Calvary,
Inc., a Delaware corporation and a wholly owned subsidiary of the Company
("Acquisition"), and Sheridan Healthcare, Inc., a Delaware corporation
("Sheridan"), are entering into an Agreement and Plan of Merger dated as of the
date hereof (the "Merger Agreement") pursuant to which, among other things,
Acquisition agrees (x) to make an offer (the "Offer") to purchase all of the
outstanding shares of common stock, par value $.01 per share, and Class A Common
Stock, par value $.01 per share, of Sheridan (collectively, the "Sheridan Common
Stock") and (y) to merge (the "Merger") into Sheridan;
WHEREAS, as a condition to their willingness to enter into the
Merger Agreement and make the Offer, the Company and Acquisition have required
the Executive and certain other Management Investors referred to below to enter
into this Agreement and the other Executive Documents referred to in the Merger
Agreement;
WHEREAS, the Executive has agreed, among other things, to
tender pursuant to the Offer and not withdraw all outstanding shares of Sheridan
Common Stock owned by him as of the date hereof and all shares of Sheridan
Common Stock, if any, acquired by him after the date hereof and prior to the
expiration of the Offer (the "Tender Shares");
WHEREAS, this Agreement is one of several agreements being
entered into by the Company on or after the date hereof with certain persons who
are or will be key employees of the Company or one of its subsidiaries
(collectively with the Executive, the "Management Investors");
NOW, THEREFORE, in order to implement the foregoing and in
consideration of the mutual representations, warranties, covenants and
agreements contained herein, the parties hereto agree as follows:
1. Agreements Relating to Tender Shares.
1.1. Agreement to Tender. The Executive hereby agrees to
validly tender pursuant to the Offer and not withdraw from the Offer all Tender
Shares; provided that the Merger Agreement has not been terminated.
1.2. Voting of Tender Shares. The Executive hereby agrees, so
long as the Executive is required to tender Tender Shares pursuant to Section
1.1 hereof, to vote all Tender Shares (a) in favor of the adoption of the Merger
Agreement and the approval of the transactions contemplated thereby and (b)
against any action or agreement that would result in a breach of
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any representation, warranty, covenant or agreement of the Company contained in
the Merger Agreement or would impede, interfere with, delay or prevent the
consummation of the Merger or the purchase of shares of Sheridan Common Stock
pursuant to the Offer. The Executive shall not, so long as the Executive is
required to tender Tender Shares pursuant to Section 1.1 hereof, purport to vote
(or execute a written consent with respect to) Tender Shares other than in
accordance with this Agreement or grant any proxy or power of attorney with
respect to Tender Shares, deposit any Tender Shares into a voting trust, or
enter into any agreement, arrangement or understanding with any person (other
than this Agreement), directly or indirectly, to vote, grant any proxy or give
instructions with respect to the voting of Tender Shares, or agree to do any of
the foregoing.
1.3. Disposition of Tender Shares. The Executive shall not, so
long as the Executive is required to tender Tender Shares pursuant to Section
1.1 hereof, sell, transfer or otherwise dispose of, pledge or otherwise
encumber, any Tender Shares after the date hereof (except to tender Tender
Shares to Acquisition pursuant to the Offer), or agree to do any of the
foregoing.
1.4. Stop Transfer Order. The Executive hereby agrees to cause
Sheridan's transfer agent to be notified that there is a stop transfer order
(except to tender Tender Shares to Acquisition pursuant to the Offer) with
respect to all Tender Shares so long as the Executive is required to tender
Tender Shares pursuant to Section 1.1 hereof.
2. Options.
2.1. Adoption of Option Plan. Immediately following the
Effective Time (as defined in the Merger Agreement), the Company shall duly
adopt the Vestar/Calvary Holdings, Inc. 1999 Stock Option Plan in substantially
the form attached hereto as Exhibit B.
2.2. Grant of Performance Options. Immediately following the
Effective Time, the Company and the Executive shall duly execute and deliver a
Performance Option Agreement in substantially the form attached hereto as
Exhibit C pursuant to which the Executive will be granted performance options to
purchase the number of shares of common stock, par value $.01 per share, of the
Company ("Common Stock") set forth opposite his name on Schedule I hereto at an
exercise price equal to the per share price paid by the Executive for Common
Stock pursuant hereto. Following such due execution and delivery thereof, the
Performance Option Agreement shall constitute a valid and binding obligation of
each of the Company and the Executive, enforceable against each of the Company
and the Executive in accordance with its terms.
2.3. Grant of Time Options. Immediately following the
Effective Time, the Company and the Executive shall duly execute and deliver a
Time Option Agreement in substantially the form attached hereto as Exhibit D
pursuant to which the Executive will be granted time options to purchase the
number of shares of Common Stock set forth opposite his name on Schedule I
hereto at an exercise price equal to the per share price paid by the Executive
for Common Stock pursuant hereto. Following such due execution and delivery
thereof, the Time Option Agreement shall constitute a valid and binding
obligation of each of the Company
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and the Executive, enforceable against each of the Company and the Executive in
accordance with its terms.
2.4. Conditions to the Obligations of the Parties. The
obligations of the Company under this Section 2 shall be subject to the
conditions that (i) the Executive shall have executed and delivered a
supplementary agreement (a "Supplement") to the Stockholders Agreement dated as
of the date hereof among the Company and its stockholders party thereto in
substantially the form attached hereto as Exhibit A (the "Stockholders
Agreement") pursuant to Section 5.13 hereof, (ii) the representations and
warranties of the Executive in Section 3 of this Agreement shall be true and
correct as of the Closing Date (as defined in the Stockholders Agreement) in all
material respects and (iii) the Executive shall not have breached his
obligations under Section 1 hereof.
3. Representations, Warranties and Covenants of the Executive.
3.1. Residence and Competency; Power; Enforceability;
Noncontravention. The Executive is competent to and has sufficient capacity to
execute and deliver this Agreement and the Stockholders Agreement and to perform
his obligations hereunder and thereunder. This Agreement has been and the
Supplement will be duly executed and delivered by the Executive.
Assuming the due execution and delivery of this Agreement and
the Supplement by the Company, this Agreement constitutes and the Stockholders
Agreement, as modified by the Supplement, will constitute valid and binding
obligations of the Executive, enforceable against the Executive in accordance
with their terms.
The execution, delivery and performance of this Agreement and
the Supplement by the Executive will not (i) conflict with or violate any law,
rule, regulation, ordinance, writ, injunction, judgment or decree applicable to
the Executive or by which any of his assets may be bound or affected or (ii)
result in any breach of any terms or conditions of, or constitute a default
under, any contract, agreement or instrument to which the Executive is a party
or by which the Executive is bound.
4. Miscellaneous.
4.1. Recapitalizations, Exchanges, Etc., Affecting Common
Stock. The provisions of this Agreement shall apply, to the full extent set
forth herein with respect to Common Stock, to any and all shares of capital
stock of the Company or any successor or assign of the Company (whether by
merger, consolidation, sale of assets or otherwise) which may be issued in
respect of, in exchange for, or in substitution for Common Stock, by reason of
any stock dividend, stock split, stock issuance, reverse stock split,
combination, recapitalization, reclassification, merger, consolidation or
otherwise. Upon the occurrence of any of such events, amounts hereunder shall be
appropriately adjusted, in good faith, by the Board of Directors of the Company.
4.2. Executive's Employment by the Company. Nothing contained
in this Agreement shall be deemed to obligate the Company or any subsidiary of
the Company to
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employ the Executive in any capacity whatsoever or to prohibit or restrict the
Company (or any such subsidiary) from terminating the employment, if any, of the
Executive at any time or for any reason whatsoever, with or without Cause (as
defined in the Stockholders Agreement).
4.3. Binding Effect. The provisions of this Agreement shall be
binding upon and inure to the benefit of the parties hereto and their respective
heirs, legal representatives, successors and assigns. No assignment of any of
the rights or obligations of the Executive shall be permitted except as
expressly contemplated hereby; any purported assignment in violation of this
provision shall be null and void ab initio.
4.4. Amendment; Waiver. This Agreement may be amended only by
a written instrument signed by the parties hereto. No waiver by either party
hereto of any of the provisions hereof shall be effective unless set forth in a
writing executed by the party so waiving.
4.5. Governing Law. This Agreement shall be governed by and
construed in all respects under the laws of the State of New York. Any action to
enforce which arises out of or in any way relates to any of the provisions of
this Agreement may be brought and prosecuted in such court or courts located
within the State of New York as provided by law; and the parties consent to the
jurisdiction of such court or courts located within the State of New York and to
service of process by registered mail, return receipt requested, or by any other
manner provided by New York law.
4.6. Notices. Any notices or communications permitted or
required hereunder shall be deemed sufficiently given if hand-delivered, or sent
by (x) registered or certified mail return receipt requested, (y) telecopy or
other electronic transmission service (to the extent receipt is confirmed) or
(z) by overnight courier, in each case to the parties at their respective
addresses and telecopy numbers set forth below, or to such other address of
which any party may notify the other party in writing.
(a) If to the Company, to it at the following address:
Vestar/Calvary Holdings, Inc.
c/o Vestar Capital Partners
245 Park Avenue
41st Floor
New York, NY 10167
Attention: James L. Elrod, Jr.
Telecopy: (212) 808-4922
with a copy to:
Simpson Thacher & Bartlett
425 Lexington Avenue
New York, New York 10017
Attention: Peter J. Gordon, Esq.
Telecopy: (212) 455-2502
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(b) If to the Executive, to him at Robert J. Coward, 821 SE
Court, #7, Fort Lauderdale, FL 33316.
4.7. Integration. This Agreement and the documents referred to
herein or delivered pursuant hereto which form a part hereof contain the entire
understanding of the parties with respect to the subject matter hereof and
thereof. There are no restrictions, agreements, promises, representations,
warranties, covenants or undertakings with respect to the subject matter hereof
other than those expressly set forth herein and therein. This Agreement
supersedes all prior agreements and understandings between the parties with
respect to such subject matter.
4.8. Counterparts. This Agreement may be executed in two or
more counterparts, and by different parties on separate counterparts, each of
which shall be deemed an original, but all of which shall constitute one and the
same instrument.
4.9. Injunctive Relief. The Executive, on behalf of himself
and his permitted transferees, and the Company, on its own behalf and on behalf
of its successors and assigns, each acknowledges and agrees that a violation of
any of the terms of this Agreement will cause the other irreparable injury for
which adequate remedy at law is not available. Accordingly, it is agreed that
the Company or the Executive, as the case may be, shall be entitled to an
injunction, restraining order or other equitable relief to prevent breaches of
the provisions of this Agreement and to enforce specifically the terms and
provisions hereof in any court of competent jurisdiction in the United States or
any state thereof, in addition to any other remedy to which it or he may be
entitled at law or equity.
4.10. Rights to Negotiate. Nothing in this Agreement shall be
deemed to restrict or prohibit the Company from purchasing shares of Common
Stock from the Executive at any time upon such terms and conditions and at such
price as may be mutually agreed upon between the Company and the Executive,
whether or not at the time of such purchase circumstances exist which
specifically grant the Company the right to purchase, or the Executive the right
to sell, shares of Common Stock pursuant to the terms of this Agreement or the
Stockholders Agreement.
4.11. Rights Cumulative; Waiver. The rights and remedies of
the Executive and the Company under this Agreement shall be cumulative and not
exclusive of any rights or remedies which either would otherwise have hereunder
or at law or in equity or by statute, and no failure or delay by either party in
exercising any right or remedy shall impair any such right or remedy or operate
as a waiver of such right or remedy, nor shall any single or partial exercise of
any power or right preclude such party's other or further exercise or the
exercise of any other power or right. The waiver by any party hereto of a breach
of any provision of this Agreement shall not operate or be construed as a waiver
of any preceding or succeeding breach and no failure by either party to exercise
any right or privilege hereunder shall be deemed a waiver of such party's rights
or privileges hereunder or shall be deemed a waiver of such party's rights to
exercise the same at any subsequent time or times hereunder.
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IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date first above written.
VESTAR/CALVARY HOLDINGS, INC.
By: /s/ James L. Elrod, Jr.
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Name: James L. Elrod, Jr.
Title: President
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IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date first above written.
EXECUTIVE:
/s/ Robert J. Coward
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Robert J. Coward
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Robert J. Coward
SCHEDULE I
Number of Shares Subject Number of Shares Subject
to Time Options to Performance Options
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33,333 16,667