SHARE EXCHANGE AGREEMENT
THIS SHARE EXCHANGE AGREEMENT (the "AGREEMENT") is entered into
effective as of the 7th day of September 2001 (the "Effective Date"), by and
between ONCURE TECHNOLOGIES CORP., a Florida corporation ("OnCure"), and DVI
FINANCIAL SERVICES INC., a Delaware corporation ("DVI").
RECITALS
WHEREAS, DVI is the beneficial owner of 448,575 shares of common stock,
$0.001 par value per share, of OnCure (the "Common Stock"), 1,000 shares of the
Series B Cumulative Accelerating Redeemable Preferred Stock, $0.001 par value
per share, of OnCure (the "Series B Preferred Stock") and 1,000 shares of the
Series C Cumulative Accelerating Redeemable Preferred Stock, $0.001 par value
per share, of OnCure (the "Series C Preferred Stock");
WHEREAS, the Board of Directors of OnCure and DVI believe that it is in
the best interests of each company and their respective stockholders to
consummate the transaction provided for herein, pursuant to which DVI will
exchange (the "Exchange") all of its Series B Preferred Stock, together with all
accrued and unpaid dividends on the Series B Preferred Stock as of the date
hereof, for an aggregate of 1,337,738 shares of common stock (the "Converted
Series B Common Stock");
WHEREAS, as a condition to the Exchange, OnCure will use all
commercially reasonable efforts to provide for the registration of the shares of
Common Stock owned by DVI on the registration statement filed with the
Securities and Exchange Commission (the "SEC") on Form SB-2, SEC File No.
333-60754 (the "Registration Statement").
AGREEMENT
NOW, THEREFORE, in consideration of the covenants, representations and
warranties set forth herein, and for other good and valuable consideration the
receipt and sufficiency of which is hereby acknowledged, the parties agree as
follows:
ARTICLE I
THE EXCHANGE
1.1 EXCHANGE CONSIDERATION. DVI shall deliver to OnCure stock
certificates representing 1,000 shares of the Series B Preferred Stock
(constituting all of the issued and outstanding shares of the Series B Preferred
Stock), duly endorsed for transfer or accompanied by duly executed stock powers,
free and clear of all Encumbrances (as defined below) upon delivery by OnCure of
certificates representing 1,337,738 shares of Common Stock issued in the name
DVI. 1,190,476 shares of common stock (of the 1,337,738 shares of common stock
being issued hereunder) are being issued in exchange for the Series B Preferred
Stock, which has a liquidation preference of 2.5 million, and 147,262 shares of
common stock are being issued as payment for all accrued and unpaid dividends on
the Series B Preferred Stock as of the date hereof.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF DVI
DVI represents and warrants to OnCure as follows:
2.1 TITLE. DVI owns beneficially and of record, free and clear of any
Encumbrance the shares of Series B Preferred Stock. As used in this Agreement,
"Encumbrance" shall mean any claim, lien, pledge, option, charge, easement,
security interest, deed of trust, mortgage, encumbrance or other right of third
parties, whether voluntarily incurred or arising by operation of law.
2.2 AUTHORITY. DVI has the corporate power and authority to execute and
deliver this Agreement and to perform its obligations hereunder and to
consummate the transactions contemplated hereby, including to own, hold, sell
and transfer the Series B Preferred Stock.
2.3 ENFORCEABILITY. This Agreement has been duly executed and delivered
by DVI and constitutes the legal, valid and binding agreement and obligation of
DVI enforceable against DVI in accordance with its terms subject to: (i)
judicial principles respecting election of remedies or limiting the availability
of specific performance, injunctive relief, or other equitable remedies; (ii)
bankruptcy, insolvency, reorganization, moratorium or other similar laws now or
hereafter in effect generally relating to or affecting creditors' rights; and
(iii) public policy concerns (including, without limitation, the ability of a
court to refuse to enforce unconscionable covenants, indemnification provisions
or similar provisions).
2.4 NO VIOLATION. The execution and the delivery by DVI of this
Agreement does not and will not (i) conflict with or result in a breach of the
terms, conditions or provisions of, (ii) constitute a default under, (iii)
result in a violation of, or (iv) require any notice, filing, authorization,
consent or approval not heretofore obtained pursuant to, any binding written or
oral agreement or instrument including, without limitation, any charter, bylaw,
trust instrument, indenture or evidence of indebtedness, lease, contract or
other obligation or commitment (each, a "Contractual Obligation") binding xxxx
XXX or any of its properties or assets, or any law, rule, regulation,
restriction, order, writ, judgment, award, determination, injunction or decree
of any court or government, or any decision or ruling of any arbitrator (each, a
"Requirement of Law") binding upon or applicable to DVI or any of its properties
or assets; except for such conflicts, defaults or violations, filings,
authorizations, consents or approvals with respect to which the failure to
obtain would not have a Material Adverse Effect on DVI. As used in this
Agreement, "Material Adverse Effect" shall mean, with respect to any event or
circumstance, a material adverse effect on the business, properties, operations,
management, profits, prospects, or condition (financial or otherwise) of DVI or
OnCure (as applicable).
2.5 NATURE OF PURCHASE; ACCREDITED INVESTOR.
(a) DVI is acquiring the Common Stock to be issued pursuant to this
Agreement for DVI's own account for investment, not as a nominee or agent, and
not with a view to the distribution of such shares or any part thereof. DVI
acknowledges that the issuance of the Common Stock pursuant to this Agreement
will not be registered under the Securities Act or any
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state securities or blue sky law, on the grounds that the offering and sale of
the Common Stock contemplated by this Agreement are exempt from registration
pursuant to exceptions available under such laws, and that the reliance by
OnCure upon such exemptions is predicated upon DVI's representations set forth
in this Agreement. DVI acknowledges and understands that such shares must be
retained by it until they are subsequently registered under the Securities Act
of 1933, as amended (the "Act"), and/or applicable state securities or blue sky
laws or an exemption from such registration is available.
(b) DVI is an "accredited investor" within the meaning of Regulation D
promulgated under the Act. DVI represents and warrants that (i) it has
sufficient knowledge and experience in investing in companies similar to OnCure
so as to be able to evaluate the risks and merits of its investment in OnCure
and it is able financially to bear the risks thereof, including the complete
loss of its investment and (ii) it has had an opportunity to discuss OnCure's
business, management and financial affairs with management of OnCure and that
the shares of Common Stock being acquired are being acquired for its own account
for the purpose of investment and not with a view to or for sale in connection
with any distribution thereof.
2.6 BROKERS. All negotiations relative to this Agreement and the
transactions contemplated hereby have been carried out by DVI directly with
OnCure without the intervention of any person on behalf of DVI in such manner as
to give rise to any valid claim against DVI or OnCure for a finder's fee,
brokerage commission or similar payment.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF ONCURE
OnCure represents and warrants to DVI as follows:
3.1 ORGANIZATION, ETC. OnCure is a corporation, duly organized and
validly existing and in good standing under the laws of the State of Florida,
and is qualified or licensed to do business and is in good standing as a foreign
corporation in each other jurisdictions in which the conduct of its business or
the ownership of property requires such qualification or licensing, except where
failure to be so qualified or licensed would not have a Material Adverse Effect
on OnCure.
3.2 AUTHORITY. OnCure has the corporate power and authority to execute
and deliver this Agreement and to perform its obligations hereunder, and such
action has been duly authorized by all necessary action of OnCure's Board of
Directors. The issuance and sale of the Common Stock to DVI has been duly
authorized and if, as and when delivered to the Shareholders, such shares will
be duly and validly issued and outstanding, fully paid and nonassessable and
will be free of any Encumbrance, other than those imposed pursuant to this
Agreement and securities laws of general application.
3.3 ENFORCEABILITY. This Agreement has been duly executed and delivered
by OnCure and constitutes a legal, valid and binding agreement and obligation of
OnCure enforceable against OnCure in accordance with its respective terms
subject to: (i) judicial principles respecting election of remedies or limiting
the availability of specific performance,
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injunctive relief, or other equitable remedies; (ii) bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or hereafter in effect
generally relating to or affecting creditors' rights; and (iii) public policy
concerns (including, without limitation, the ability of a court to refuse to
enforce unconscionable covenants, indemnification provisions or similar
provisions).
3.4 NO VIOLATION. The execution and the delivery by OnCure of this
Agreement does not and will not (i) conflict with or result in a breach of the
terms, conditions or provisions of, (ii) constitute a default under, (iii)
result in a violation of, or (iv) require any notice, filing, authorization,
consent or approval not heretofore obtained pursuant to, any Contractual
Obligation binding upon OnCure or any of its subsidiaries or any of their
properties or assets, or any Requirement of Law binding upon or applicable to
OnCure or any of its subsidiaries or any of their properties or assets, except
for such conflicts, defaults or violations, filings, authorizations, consents or
approvals with respect to which the failure to obtain would not have a Material
Adverse Effect on OnCure.
3.5 CAPITALIZATION. The authorized capital stock of OnCure consists of
100,000,000 shares of Common Stock, 11,093,222 shares of which have been validly
issued as of the Effective Date, and are fully paid and nonassessable.
3.6 BROKERS. The transactions contemplated hereby have been carried out
by OnCure directly with DVI without the intervention of any person on behalf of
OnCure in such manner as to give rise to any valid claim against OnCure or DVI
for a finder's fee, brokerage commission or similar payment.
ARTICLE IV
COVENANTS OF THE PARTIES
4.1 REASONABLE BEST EFFORTS. Except as otherwise provided herein, each
of the parties hereto shall use its reasonable best efforts to take promptly, or
cause to be taken, all actions, necessary, proper or advisable to consummate the
transactions contemplated hereby (including obtaining all necessary waivers,
consents and approvals) on or before September 30, 2001.
4.2 ADDITIONAL DOCUMENTS AND FURTHER ASSURANCES. Each party hereto, at
the request of another party hereto, shall execute and deliver such other
instruments and do and perform such other acts and things as may be necessary or
desirable for effecting completely the consummation of this Agreement, the
Exchange and the transactions contemplated hereby.
4.3 PUBLIC DISCLOSURES. OnCure and DVI shall consult with each other
before issuing any press release or otherwise making any public statements with
respect to this Agreement or the Exchange or the transactions contemplated
hereby or thereby and shall not issue any such press release or make any such
public statement prior to such consultation, except as may be required by law.
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4.4 REGISTRATION. OnCure shall use all commercially reasonable efforts
to register all (i) 448,575 shares of the Common Stock held by DVI prior to the
Exchange (the "Original Common Shares"), (ii) the Converted Series B Common
Stock and (iii) the shares of Common Stock issuable upon conversion of the
Series C Preferred Stock (the "Underlying Shares"), under the Registration
Statement.
(a) In the event that OnCure is unable to register all of the Original
Common Shares, the Converted Series B Common Stock, and the Underlying Shares,
OnCure shall register, under the Registration Statement, an amount of shares
equal to the greater of: (i) 10% of the outstanding shares of Common Stock, on a
fully-diluted basis, as of the date that the final amendment to the Registration
Statement is filed with the SEC, or (ii) such other amount as approved by the
SEC. All of the shares of the Converted Series B Common Stock shall be
registered under the Registration Statement prior to the Original Common Shares
and the Underlying Shares.
(b) In the event that OnCure is unable to register all of the Converted
Series B Common Stock, DVI shall have the right, commencing on the first
anniversary of the Effective Date, to require OnCure to purchase an aggregate of
177,035 shares of the Converted Series B Common Stock which have not been
registered under the Registration Statement at a price equal to the greater of:
(i) $2.10 per share or; (ii) the fair market value of the Common Stock for the
twenty (20) consecutive trading days immediately preceding the date that OnCure
receives notice of DVI's intention to sell its shares. The fair market value of
the Common Stock shall be determined in accordance with the Certificate of
Designations, Preferences and Rights of the Series C Preferred Stock.
(c) If OnCure is unable to register under the Registration Statement
any or all of the Underlying Shares and if, at any time or from time to time,
OnCure determines to register any of its securities for its own account or the
account of any other shareholder, other than a registration relating to employee
benefit plans (or the resale of securities acquired pursuant thereto) or a
transaction pursuant to Rule 145 of the SEC, OnCure shall include in such
registration such number of shares of the Underlying Shares as DVI shall request
in writing within fifteen (15) business days following receipt of notice of such
registration, provided that, if such registration is underwritten, it shall be a
condition that DVI participate in such underwriting and enter into an
underwriting agreement in customary form with the managing underwriter selected
by OnCure. If the managing underwriter determines that market forces require
limitation of the number of shares to be underwritten, the number of Underlying
Shares to be included in the registration may be limited or eliminated, provided
that DVI shall be treated on at least a pari passu basis with all other
shareholders participating in such registration (other than those shareholders
exercising demand registration rights).
(d) All registration expenses (including legal fees) in connection with
the registrations contemplated by this Paragraph 4.4 shall be borne by OnCure,
but all selling expenses of DVI (including broker fees, underwriting commissions
and the cost of any special legal counsel representing DVI) shall be borne by
DVI.
4.5 LIMITATION ON CONVERSION. For a period commencing on the Effective
Date and ending on the first anniversary of the Effective Date, DVI shall not
exercise its right to convert its shares of the Series C Preferred Stock into
shares of Common Stock.
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ARTICLE V
REMEDIES; INDEMNIFICATION
5.1 REMEDIES. In addition to being entitled to exercise all rights and
remedies granted by law, including recovery of damages, DVI will be entitled to
specific performance of its rights under this Agreement. OnCure agrees that
monetary damages would not be adequate compensation for any loss incurred by
reason of a breach by it of the provisions of this Agreement and hereby agrees
not to raise the defense in any action for specific performance that a remedy at
law would be adequate.
5.2 INDEMNIFICATION. To the fullest extent permitted by law, OnCure (i)
will and hereby does indemnify and hold harmless DVI, each director, officer,
employee, affiliate and agent of or for DVI, and each person or entity, if any,
who controls DVI (collectively, the "Indemnified Parties"), against any losses,
claims, damages, costs, liabilities or actions, joint or several, incurred by
DVI and arising out of, caused by or based on OnCure's breach of its obligations
under this Agreement, and (ii) will reimburse the Indemnified Parties for any
legal or other expenses reasonably incurred by them in connection with
investigating or defending any such loss, claim, damage, cost, liability or
action. This indemnity shall be in addition to all other indemnification
arrangements to which OnCure and DVI may otherwise be party.
ARTICLE VI
GENERAL PROVISIONS
6.1 NOTICES. All notices and other communications hereunder shall be in
writing and shall be deemed given if delivered personally or by commercial
messenger or courier service, or mailed by registered or certified (return
receipt requested) or overnight mail or sent via facsimile (with acknowledgment
of complete transmission) to the parties at the following addresses (or at such
other address for a party as shall be specified by like notice); provided,
however, that notices sent by mail will not be deemed given until received:
(a) if to OnCure:
OnCure Technologies Corp.
0000 Xxxxxxx Xxxxxx Xxxx, Xxxxx 000
Xxxxxx Xxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxxx
Fax: (000) 000-0000
with a copy to:
Xxxxxxx Berlin Shereff Xxxxxxxx, LLP
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxx X. Xxxxxxxxx
Fax: (000) 000-0000
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(b) if to DVI:
DVI Financial Services Inc.
0000 Xxxx Xxxx
Xxxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxx
Fax: (000) 000-0000
with a copy to:
DVI, Inc.
0000 Xxxx Xxxx
Xxxxxxx, XX 00000
Attn: Legal
Fax: (000) 000-0000
6.2 INTERPRETATION. The words "include," "includes" and "including"
when used herein shall be deemed in each case to be followed by the words
"without limitation." The headings contained in this Agreement are for reference
purposes only and shall not affect in any way the meaning or interpretation of
this Agreement.
6.3 COUNTERPARTS; FACSIMILE SIGNATURES. This Agreement may be executed
in one or more counterparts, all of which shall be considered one and the same
agreement and shall become effective when one or more counterparts have been
signed by each of the parties and delivered to the other party, it being
understood that all parties need not sign the same counterpart. This Agreement
may be executed by facsimile, and a facsimile signature shall have the same
force and affect as an original signature on this Agreement.
6.4 ENTIRE AGREEMENT. This Agreement and any other agreement or
instrument to be delivered expressly pursuant to the terms hereof constitute the
entire Agreement between the parties hereto with respect to the subject matter
hereof and supersede all previous negotiations, commitments and writings with
respect to such subject matter.
6.5 ASSIGNMENTS; PARTIES IN INTEREST. Neither this Agreement nor any of
the rights, interests or obligations hereunder may be assigned by any of the
parties hereto (whether by operation of law or otherwise) without the prior
written consent of the other parties. This Agreement shall be binding upon and
inure solely to the benefit of each party hereto, and nothing herein, express or
implied, is intended to or shall confer upon any person not a party hereto any
right, benefit or remedy of any nature whatsoever under or by reason hereof,
except as otherwise provided herein.
6.6 SEVERABILITY. In the event that any provision of this Agreement
becomes or is declared by a court of competent jurisdiction to be illegal, void
or unenforceable, the remainder of this Agreement will continue in full force
and effect and the application of such provision to other persons or
circumstances will be interpreted so as reasonably to effect the intent of the
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parties hereto. The parties further agree to replace such void or unenforceable
provision of this Agreement with a valid and enforceable provision that will
achieve, to the extent possible, the economic, business and other purposes of
such void or unenforceable provision.
6.7 OTHER REMEDIES. Except as otherwise provided herein, any and all
remedies herein expressly conferred upon a party will be deemed cumulative with
and not exclusive of any other remedy conferred hereby, or by law or equity upon
such party, and the exercise by a party of any one remedy will not preclude the
exercise of any other remedy.
6.8 GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware, regardless of the laws that
might otherwise govern under applicable principles of conflicts of laws thereof.
IN WITNESS WHEREOF, OnCure and DVI have caused this Agreement to be
executed, all as of the day and year first above written.
ONCURE TECHNOLOGIES CORP.
By: /s/ Xxxxxxx X. Xxxxxxx
---------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Chief Executive Officer
DVI FINANCIAL SERVICES, INC.
By: /s/ Xxxxxxx X. Xxxxxx
---------------------------
Name: Xxxxxxx X. Xxxxxx
Title: President
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