EXHIBIT D
VOTING TRUST AGREEMENT
THIS VOTING TRUST AGREEMENT ("Agreement") is made and entered into this 4th
day of March, 1998, by and among SHERIDAN HEALTHCARE, INC., a Delaware
corporation ("SHCR"), XXXXXXX XXXXXXX, M.D., P.A., a Texas professional
association (the "Company"), XXXXXXX XXXXXXX, M.D., the sole shareholder of the
Company (the "Shareholder"), and XXXXXXX XXXXXXX, M.D. ("Trustee").
R E C I T A L S
1. Simultaneously with the execution and delivery of this Agreement, SHCR,
the Shareholder and the Company have entered into a Purchase Option Agreement,
dated March 4, 1998.
2. In accordance with Section 4 of that certain Purchase Option Agreement,
the parties have agreed to execute this Agreement for the purposes of obtaining
stable and experienced management for the Company, preserving the Company's
value and continuing the Company's operations prior to the exercise of the
option under the Purchase Option Agreement.
NOW, THEREFORE, for and in consideration of the mutual agreements set forth
below, the parties agree as follows:
I. TRUSTEE.
A. Appointment. Xxxxxxx Xxxxxxx, M.D. is hereby appointed the
trustee under this Agreement ("Trustee"). The Trustee acknowledges that he is
an individual who is licensed to practice medicine in the State of Texas (an
"Eligible Person").
B, Successor Trustee. SHCR may, in its sole discretion, replace the Trustee
with another Eligible Person at any time upon ten (10) days prior written notice
to the Shareholder. If the Trustee shall resign, die, become permanently
disabled, or be unable or refuse for any reason to act as Trustee hereunder,
SHCR shall have the right to select, in its sole discretion, a successor
Trustee, provided, however, that such successor Trustee shall be an Eligible
Person. Upon SHCR's designation of a replacement or successor Trustee, the
Trustee or his personal representative shall deliver to the replacement or
successor Trustee all share certificates representing shares deposited with
Trustee under this Agreement, with such share certificates endorsed in blank and
accompanied by instruments of transfer that will enable the replacement or
successor Trustee to cause the shares to be transferred to the name of the
replacement or successor Trustee.
II. VOTING TRUST.
A. Exchange of Shares for Voting Trust Certificates. Simultaneously with
the execution of this Agreement, but subject to the restrictions on transfer of
the common stock, par value $.10 per share, (the "Common Stock") of the Company
by law, rule, regulations, judicial interpretation or other official
governmental interpretation, the Shareholder shall assign and deliver, for
deposit with the Trustee, share certificates for all of the shares of Common
Stock held or owned by the Shareholder (which number is One Thousand Shares
(1000)), and immediately upon receipt by Shareholder, Shareholder shall assign
and deliver, for deposit with Trustee, share certificates for all shares of
Common Stock that are subsequently held or owned by Shareholder. All of these
share certificates shall be endorsed in blank and shall be accompanied by
instruments of transfer that will enable Trustee to cause the shares to be
transferred in the name of Trustee.
Trustee will cause such shares of Common Stock to be transferred to the
Trustee, on the books of the Company, and will issue and deliver to the
Shareholder Voting Trust Certificates for the number of shares of Common Stock
transferred to the Trustee.
B. Form of Voting Trust Certificates. The Voting Trust Certificates
shall be in the form attached hereto as Exhibit "A."
C. Transfers and Record Owner. The Voting Trust Certificates shall be
transferable, subject to applicable laws and this Agreement, on the books of the
Trustee by the Shareholder, either in person or by attorney duly authorized and
upon surrender thereof. Until so transferred the Trustee may treat the
registered holder as owner thereof for all purposes whatsoever. Every transferee
of a Voting Trust Certificate shall by the acceptance thereof become a party to
this Agreement with the same force and effect as if he or she had signed this
Agreement, and shall be embraced within the meaning of the term Voting Trust
Certificate Holder whenever used herein. Share certificates shall not be
deliverable hereunder without the surrender of Voting Trust Certificates
representing an equivalent number of shares. The transfer books of the Trustee
may, in his discretion, be closed and transfers of Voting Trust Certificates
thereon may be suspended from time to time for such reasonable period as the
Trustee may determine. The Trustee may, at any time, appoint a registrar for the
Voting Trust Certificates, and may provide that Voting Trust Certificates shall
not be valid unless registered and countersigned by such registrar.
D. Voting by Trustee. During the period of this Voting Trust, the Trustee
shall possess the exclusive right, in his unrestricted discretion, to vote the
shares and to exercise the rights set forth in Section II.H. of this Agreement.
If more than one person is serving as the Trustee, all actions to be taken on
any questions shall be determined by the vote or agreement of a majority of
those serving as the Trustee.
E. Subscriptions to New Shares or Securities. In case the Company shall
offer any of its shares or other securities to its shareholders for
subscription, then in such case upon receiving from the Shareholder, prior to
the time limited by the Company for subscription and payment, a request to
subscribe in his behalf, and the money required to pay for a stated amount of
such shares or other securities the Trustee will make such subscription and
payment, and upon receiving from the Company the share certificates or other
securities so subscribed for, will issue one or more Voting Trust Certificates
in respect thereof to the Shareholder. The Trustee shall not, in any event, with
respect to any dividend in shares or shares subscribed for, be required to
deliver certificates representing fractional parts of a share, but may in lieu
thereof deliver, in respect of fractional interest, fractional script
certificates in such form and upon such terms and conditions as the Trustee may
in his discretion determine.
F. Termination of Trust. This Voting Trust shall terminate upon on March 4,
2097, or if a court of competent jurisdiction would render this Agreement
unenforceable or invalid due to the termination date, then the termination date
shall automatically be reduced to a date which would cure the invalidity or
unenforceability. The trust created by this Agreement is expressly declared to
be irrevocable to the extent permitted by law, except as it may be terminated
pursuant to this Section. The trust created by this Agreement is coupled with an
interest and is expressly declared to be irrevocable to the extent permitted by
law, except as it may be terminated pursuant to this Section.
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Upon termination of this Agreement, the Shareholder shall surrender his
Voting Trust Certificates to the Trustee, and the Trustee shall deliver to the
Shareholder certificates representing shares of the Company properly endorsed
for transfer, equivalent to the amount of shares represented by the Voting Trust
Certificates surrendered; provided, however, that the Trustee shall be obligated
to deliver such shares only if any and all liens against same have been duly
released.
G. Trustee as Shareholder or Employee. The Trustee, and his successor(s),
may be a party to this Agreement as a Voting Trust Certificate Holder, and to
the extent of the shares deposited by him and he is qualified by law to own
shares in the Company, he shall be entitled in all respects to the same rights
and benefits as other Voting Trust Certificate Holders. The Trustee may serve
the Company or any of its subsidiaries as a director or an officer or in any
other capacity, and may receive compensation from the Company or such
subsidiaries for such services.
H. Rights and Powers of Trustee. The Trustee shall possess and be entitled,
subject to the provisions hereof and law, in his discretion, to exercise all the
rights and powers of the beneficial owners of all shares deposited hereunder,
including, but without limitation, the right to receive dividends on such shares
(for the benefit of SHCR) and the right to vote, consent in writing, or
otherwise act with respect to any corporate or shareholders' action, to increase
or reduce the stated capital of the Company, to classify or reclassify any of
the shares as now or hereafter authorized into preferred or common shares or
other classes of shares, to amend the Articles of Association or Bylaws, to
merge or consolidate the Company with other Companies, to sell all or any part
of the assets, or for any other lawful corporate act or purpose that may be
undertaken by shareholders of the Company, it being expressly stipulated that no
voting right shall pass to others by or under the Voting Trust Certificates or
by or under this Agreement (with the exception of any successor Trustee named in
accordance with Article I hereof), or by or under any agreement express or
implied; provided, however, that Trustee shall have no rights to transfer the
shares except pursuant to a consolidation or merger.
In case the Trustee shall vote or otherwise act in respect of the shares
deposited hereunder so as to effect a consolidation or merger of the Company
with and into another professional association or other legal entity, the
Trustee may in connection with such consolidation or merger surrender such
shares and receive in lieu thereof and in exchange therefor the shares issuable
therefore in such merger or consolidation, and may hold the shares so received
in place of the shares deposited hereunder. Thereafter, the rights and
obligations of the Trustee and of the Shareholder with respect to shares
deposited hereunder shall for all purposes be treated as applying to the shares
so received. Upon demand of the Trustee to the Shareholder, the Shareholder
shall surrender his Voting Trust Certificates to the Trustee, and shall accept
in lieu thereof one or more new Voting Trust Certificates in a form similar to
that set forth in Exhibit "A" of this Agreement, but modified so as to describe
expressly the interest then represented by the Voting Trust Certificate. Any
transfer tax or other charges payable in respect of any such exchange shall be
paid by the Trustee.
The Trustee is also authorized to become a party to or prosecute or defend
or intervene in any suits or legal proceedings involving the shares held in the
Voting Trust.
I. Compensation and Expenses of Trustee. The Trustee is not to receive any
compensation for its services hereunder. The Trustee may employ counsel, and
such other assistance as may be convenient, in the performance of his functions.
The Trustee shall be responsible for any and all expenses incurred by it in
connection with or arising out of this Agreement or the discharge of its duties
hereunder.
J. Meetings of Voting Trust Certificate Holders. In the event that the
Trustee shall desire to ascertain the views of SHCR or the Shareholder with
respect to any action or thing done or proposed to be done by it or by the
Company, the Trustee may for such purpose call a meeting of such holders to be
held in Dallas, Texas. Such notice shall set forth the time, place, and purpose
of the meeting and notice thereof shall be delivered at least five (5) days
before the date of such meeting to the Shareholder. No action at any such
meeting shall operate to modify the express provisions of this Agreement or in
any way limit the powers and discretion of the Trustee as defined by this
Agreement.
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K. Notices from Company. Copies of notices, reports, statements, and other
communications directed to the Trustee from the Company shall be forwarded
immediately to the Shareholder, with the postmarked date and the date of receipt
endorsed on the communication.
L. Liability of Trustee No Trustee shall be liable for the acts or defaults
of any other Trustee or for the acts or defaults of an agent or representative
of any other Trustee. Each Trustee shall be free from liability in acting upon
any paper, document, or signature believed by him to be genuine and to have been
signed by the proper party. No Trustee shall be liable under this Agreement or
otherwise for any action of any kind taken or omitted by him hereunder, or for
any error of judgment, mistake of law, or other mistake or negligence, except
for Trustee's own gross negligence or willful misconduct.
III. MISCELLANEOUS.
A. Term. This Agreement shall commence as of the date first set
forth above and terminate as set forth in Section II.F. above.
B. Amendment. This Agreement may be amended by the written agreement
of the parties hereto. The Trustee shall agree to and execute, as necessary,
any such written agreement by and among SHCR, the Company and the Shareholder.
C. Addition of Other Parties. The execution by additional parties to this
Agreement, after the effective date of this Agreement, is permissible only with
the prior approval of Trustee and the Shareholder; provided, however, that the
Shareholder shall not withhold such approval of any designee of SHCR designated
under that certain Purchase Option Agreement. No such approval shall be required
for parties added as a result of any transfers of shares already subject to this
Agreement.
D. Legend on Stock Certificates. From and after the date of this
Agreement, each certificate evidencing the shares and the Voting Trust
Certificate shall bear the following legends:
On the front side:
"VOTING AND TRANSFER OF THE SHARES REPRESENTED BY THIS CERTIFICATE IS
RESTRICTED - SEE REVERSE SIDE."
On the reverse side:
"THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO AND THE VOTING
AND TRANSFER THEREOF IS RESTRICTED BY THE TERMS AND PROVISIONS OF THAT CERTAIN
VOTING TRUST AGREEMENT DATED MARCH 4, 1998, EXECUTED BY CERTAIN SHAREHOLDERS OF
THE COMPANY, A COPY OF WHICH IS ON FILE IN THE OFFICES OF THE COMPANY."
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E. 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, five (5) days after posting in the United States mail or one
(1) day after dispatch by overnight courier.
If to SHCR: Sheridan Healthcare, Inc.
0000 Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxx, Xxxxxxx 00000
ATTN: Xxx X. Xxxxxx, Esq.
Vice President and General Counsel
If to Shareholder: Xxxxxxx X. Xxxxxxx, M.D.
0000 Xxxxxxxxxx Xxx
Xxxxx, Xxxxx 00000
If to the Company: Xxxxxxx Xxxxxxx, M.D., P.A.
0000 Xxxxxx Xxxx Xxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
With a copy to: Jenkens & Xxxxxxxxx, a Professional
Corporation
0000 Xxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
ATTN: R. Xxxxxxx Xxxxxx, Esq.
F. Specific Performance. The parties to this Agreement declare that it is
impossible to measure in money the damages which will accrue to a party to this
Agreement, his heirs, executors, administrators and other legal representatives,
by reason of a failure to perform or comply with the provisions of this
Agreement. Therefore, if a party to this Agreement, his heirs, executors,
administrators or other legal representatives shall institute any action or
proceeding to enforce the provisions of this Agreement, any person against whom
such action or proceeding is brought hereby agrees that specific performance may
be sought and obtained for any breach of this Agreement, without the necessity
of proving actual damages.
G. Waiver/Non-Waiver. Except as stated above, no term or condition of this
Agreement shall be deemed to have been waived, nor shall there by any estoppel
to enforce any provision of this Agreement, except by written instrument signed
by the party charged with such waiver or estoppel. No delay or failure by a
party to exercise any right under this Agreement, and no partial or single
exercise of that right, shall constitute a waiver of that or any other right,
unless otherwise expressly provided herein.
H. Assignment. This Agreement shall be binding upon and inure to the
benefit of the parties hereto, their respective executors, administrators,
other legal representatives, successors and assigns.
I. Severability. In case any one or more of the provisions contained in
this Agreement shall follow any reason be held to be invalid, illegal or
unenforceable, such invalidity, illegality or unenforceability shall not affect
any other provision of this Agreement.
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J. Entire Agreement. This Agreement contains the entire agreement
between the parties with respect to the subject matter of this Agreement.
K. Attorneys' Fees. If any action at law or in equity, including an action
for declaratory relief, is brought to enforce or interpret the provisions of
this Agreement, the prevailing party shall be entitled to recover reasonable
attorneys' fees from the other party or parties, which fees may be set by the
court in the trial of such action or may be enforced in a separate action
brought for that purpose, and which fees shall be in addition to any other
relief which may be awarded.
L. Headings. The headings contained in this Agreement are for purpose
of reference only and shall not limit or otherwise affect the meaning of any
of the provisions contained herein.
M. Word Usage. The gender of all words shall be read in the
masculine, feminine or neuter as applicable, and the number of all words shall
be read in the singular and plural.
N. Multiple Counterparts. This Agreement may be executed in multiple
counterparts, each of which shall be deemed to be an original.
O. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS.
P. Deposit With Company. Company acknowledges receipt of a copy of
this Agreement and agrees to maintain a copy at its principal place of
business or its registered office during the term of this Agreement.
Q. Recitals. The recitals at the beginning of this Agreement are
incorporated into this Agreement by this reference and are a substantive,
contractual part of this Agreement.
R. Arbitration; Jury Trial. THE PARTIES SHALL USE GOOD FAITH NEGOTIATION TO
RESOLVE ANY CONTROVERSY, DISPUTE OR DISAGREEMENT ARISING OUT OF, RELATING TO OR
IN CONNECTION WITH THIS AGREEMENT OR THE BREACH OF THIS AGREEMENT. IN THE EVENT
THE PARTIES ARE UNABLE TO RESOLVE ANY DISPUTE OR CONTROVERSY BY NEGOTIATION,
EITHER PARTY MAY SUBMIT SUCH DISPUTE TO BINDING ARBITRATION WHICH SHALL BE
CONDUCTED IN DALLAS, TEXAS. THE BINDING ARBITRATION SHALL BE CONDUCTED IN
ACCORDANCE WITH THE RULES OF PROCEDURE FOR ARBITRATION OF THE NATIONAL HEALTH
LAWYERS ASSOCIATION ALTERNATIVE DISPUTE RESOLUTION SERVICE. JUDGMENT ON THE
AWARD OR DECISION RENDERED BY THE ARBITRATOR MAY BE ENTERED IN ANY COURT HAVING
JURISDICTION. NOTWITHSTANDING THE TERMS OF THIS SECTION, IN THE EVENT OF ANY
BREACH OR DISPUTE OF THIS AGREEME NT OR ANY OF THE RELATED AGREEMENTS FOR WHICH
AN EQUITABLE REMEDY IS APPROPRIATE THE AGGRIEVED PARTY MAY SEEK AND OBTAIN
RELIEF IN A COURT OF COMPETENT JURISDICTION TO AVAIL ITSELF OF THE EQUITABLE
REMEDIES. IN THAT CASE SHOULD ANY PENDENT LEGAL CLAIMS ARISE, THOSE CLAIMS SHALL
BE SUBMITTED TO BINDING ARBITRATION, HOWEVER IF THE COURT FAILS TO REMAND THOSE
LEGAL CLAIMS TO ARBITRATION, THEN FOR THOSE LEGAL CLAIMS, THE PARTIES WAIVE ALL
RIGHTS TO ANY TRIAL BY JURY IN ALL LITIGATION RELATING TO OR ARISING OUT OF THIS
AGREEMENT.
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IN WITNESS WHEREOF, the undersigned have executed this Agreement on this
4th day of March, 1998.
TRUSTEE:
XXXXXXX XXXXXXX, M.D.
Xxxxxxx Xxxxxxx, M.D., Individually
COMPANY:
XXXXXXX XXXXXXX, M.D., P.A.,
a Texas professional association
By:
Xxxxxxx X. Xxxxxxx, President
SHAREHOLDER:
XXXXXXX X. XXXXXXX, M.D.
Xxxxxxx X. Xxxxxxx, Individually
