RESTRUCTURING AGREEMENT
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This RESTRUCTURING AGREEMENT (this "Agreement"), dated as of
June 30, 2003, is entered into by and among (i) OnCURE Medical Corp., a Delaware
corporation (the "Company"), (ii) DVI Financial Services Inc., a Delaware
corporation ("DVI") and DVI Business Credit Corporation, a Delaware corporation
("DVI Credit"), (iii) Crossbow Venture Partners, LP, a Delaware limited
partnership ("Crossbow" and a "Series E Holder"); (iv) the persons listed on the
signature page hereto as Series D Holders (each a "Series D Holder"); (v)
Mercurius Beleggingsmaatschaappij BV, a Dutch corporation ("Mercurius" and a
"Series E Holder"), (vi) Partcipatie Maatschappij Avanti Limburg BV, a Dutch
corporation ("Avanti" and a "Series E Holder") and (vii) the members of the
Board of Directors of the Company listed on the signature pages hereto as Series
H Holders (each a "Series H Holder"). DVI, the Series D Holders, the Series E
Holders and the Series H Holders, are each sometimes referred to herein as an
"Investor" and collectively, as the "Investors." The Company and the Investors
are each sometimes referred to herein as a "Party" and, collectively, as the
"Parties."
R E C I T A L S:
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WHEREAS, the Parties desire to participate in a financial and
capital restructuring of the Company on the terms and conditions set forth
herein (the "Restructuring");
WHEREAS, in connection with the Restructuring, Laurel Holdings
II, L.L.C., a Delaware limited liability company (the "Purchaser") and the
Company expect to enter into an investment agreement (the "New Investment
Agreement"), in the form attached hereto as Exhibit A, pursuant to which the
Purchasers will purchase (collectively, the "New Investment") newly issued
senior subordinated promissory notes of the Company (the "New Senior
Subordinated Notes") in the aggregate initial principal amount of $6.0 million
and Series C-1 Participating Convertible Preferred Stock of the Company having
an initial liquidation preference of $12.0 million (the "New Series C
Preferred");
WHEREAS, the Certificate of Incorporation of the Company
authorizes the Company to issue 101,000,000 shares of stock, consisting of
100,000,000 shares of common stock, par value $0.001 per share ("Company Common
Stock"), and 1,000,000 shares of preferred stock, par value $0.001 per share
("Company Preferred Stock");
WHEREAS, in connection with the New Investment and the
Restructuring, the Company and the Investors desire that the Company file a
Certificate of Designations in order to create the following series of Company
Preferred Stock: (i) Series A Preferred Stock ("Series A Preferred"), (ii)
Series B Preferred Stock ("Series B Preferred") and (iii) New Series C Preferred
(together with the Series A Preferred and the Series B Preferred, the "New
Preferred Stock"); the rights and designations of the New Preferred Stock to be
as set forth in the Certificate of Designation attached hereto as Exhibit B;
WHEREAS, in connection with the Restructuring, the Company has
agreed to repurchase from DVI an aggregate of 1,000 shares of Series C
Cumulative Accelerating Redeemable Preferred Stock of the Company (the "Old
Series C Preferred"), which 1,000 shares constitute all of the issued and
outstanding shares of Old Series C Preferred, in exchange for $2,316,672 in cash
and $2.6 million of initial liquidation preference of Series A Preferred, and
the Company has in addition agreed to pay to DVI all accrued and unpaid
dividends on such Old Series C Preferred in the aggregate amount of $2,683,328;
WHEREAS, in connection with the Restructuring, the Company and
DVI have agreed that the Company shall repurchase from DVI Series A Preferred at
the rate of $0.25 of liquidation preference of Series A Preferred for each $1.00
of additional debt financing provided to the Company by DVI after the Closing
(as defined below);
WHEREAS, in connection with the Restructuring, the Series D
Holders have agreed to exchange an aggregate of 1,000 shares of Series D
Preferred Stock of the Company (the "Old Series D Preferred"), which 1,000
shares constitute all of the issued and outstanding shares of Old Series D
Preferred, together with all accrued and unpaid dividends thereon, for $2.5
million of initial liquidation preference of Series B Preferred;
WHEREAS, in connection with the Restructuring, the Series E
Holders have agreed to exchange an aggregate of 1,000 shares of Series E
Preferred Stock of the Company (the "Old Series E Preferred"), which 1,000
shares constitute all of the issued and outstanding shares of Old Series E
Preferred, together with all accrued and unpaid dividends thereon for $4.0
million of initial liquidation preference of Series B Preferred;
WHEREAS, in connection with the Restructuring, Crossbow has
agreed to exchange bridge promissory notes of the Company in the aggregate
principal amount of $1.5 million (the "Bridge Notes") for $3.0 million of
initial liquidation preference of New Series C Preferred and the Company has
agreed to pay to Crossbow all accrued and unpaid interest on the Bridge Notes;
WHEREAS, in connection with the Restructuring, the Series H
Holders have agreed to exchange an aggregate of 215 shares of Series H Preferred
Stock of the Company (the "Old Series H Preferred"), which 215 shares constitute
all of the issued and outstanding shares of Old Series H Preferred, together
with all accrued and unpaid dividends thereon, for $860,000 of initial
liquidation preference of New Series C Preferred;
WHEREAS, in connection with the New Investment and the
transactions set forth above, the Parties desire to enter into a Registration
Rights Agreement, as set forth in the form attached hereto as Exhibit C;
WHEREAS, in connection with the New Investment and the
transactions set forth above, the Parties desire to enter into a Stockholders
Agreement, as set forth in the form attached hereto as Exhibit D, which shall
provide, among other things, for the composition of the Board of Directors of
the Company;
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WHEREAS, in connection with the New Investment and the
Restructuring, DVI Credit and the Company desire to amend the existing loan
documents between DVI Credit and the Company (together the "Senior Debt
Documents"), in order to permanently waive all existing defaults and events of
default thereunder and to amend the covenants therein, as set forth in the form
attached hereto as Exhibit E;
NOW, THEREFORE, in consideration of the promises and the
mutual covenants and agreements set forth herein, and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Parties hereto agree on the terms and subject to the
conditions as hereinafter set forth:
SECTION 1. THE RESTRUCTURING TRANSACTIONS.
Simultaneously with the execution of this Agreement, the following
transactions are being effected (it being understood and agreed by the Parties
that the effectiveness of each such transaction shall be conditioned upon the
substantially simultaneous consummation of the other transactions set forth in
Section 1 of this Agreement and the satisfaction of each of the conditions set
forth in Section 2 of this Agreement) (the "Closing"):
1.1 New Investment Agreement. The Purchaser and the Company are
entering into the New Investment Agreement, in the form attached hereto as
Exhibit A, pursuant to which the Purchaser is purchasing the amount of New
Senior Subordinated Notes and New Series C Preferred set forth therein. The New
Senior Subordinated Notes are being sold together with a detachable warrant
exercisable to purchase New Series C Preferred having an initial liquidation
preference of $4,200,000, which Series C Preferred is initially convertible into
16,800,000 shares of Company Common Stock.
1.2 DVI Repurchase. (a) The Company hereby repurchases from DVI for
$2,316,672 in cash payable to DVI according to the wire transfer instructions
previously furnished by DVI and $2.6 million of initial liquidation preference
of Series A Preferred, an aggregate of 1,000 shares of Old Series C Preferred,
all of which are hereby cancelled and no longer outstanding. Simultaneous with
the execution of this Agreement, DVI shall deliver to the Company stock
certificates and stock powers executed in blank (or a lost stock certificate
affidavit) for such shares of Old Series C Preferred.
(b) As full and complete payment for all accrued and unpaid
dividends on the shares of Old Series C Preferred as of the date hereof, the
Company pays to DVI, and DVI hereby accepts as full and complete payment for all
accrued and unpaid dividends on the shares of Old Series C Preferred as of the
date hereof, $2,683,328 in cash payable to DVI according to the wire transfer
instruction previously furnished by DVI.
(c) DVI acknowledges and agrees that upon the completion of the
transactions described in subparagraphs (a) and (b) above, it shall have no
right, interest or claim of any kind whatsoever relating to the Old Series C
Preferred.
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(d) The Company hereby agrees to repurchase from DVI from time to
time after the Closing out of funds legally available therefor (as determined by
the Board of Directors in good faith), shares of Series A Preferred held by DVI
at a rate of $0.25 of liquidation preference of Series A Preferred for each
$1.00 of the initial principal amount of additional Qualified Debt Financing
provided by DVI to the Company after Closing. Such repurchase(s) shall be
effected substantially simultaneously with the provision of such Qualified Debt
Financing; provided, however, that if funds are not legally available to the
Company for any such repurchase, the closing of such repurchase shall be
deferred until the earliest practicable date after the Company has sufficient
funds legally available to consummate such repurchase; provided, further, that
if funds are not legally available to the Company for any such xxxxxxxxxx, XXX
may, at its option, instead of deferring such repurchase, by written notice to
the Company, convert shares of Series A Preferred held by DVI that would
otherwise be repurchased into indebtedness of the Company containing the same
terms as the Qualified Debt Financing which caused such repurchase obligation.
Any such deferral of the closing of a repurchase in accordance with the terms of
this subparagraph (d) shall not constitute a default hereunder. "Qualified Debt
Financing" shall mean debt financing provided on commercially reasonable terms
for similarly situated debtors and having a maturity of no less than 60 months,
excluding the renewal or refinancing of existing debt provided by DVI and its
affiliates.
1.3 Exchange of Existing Securities.
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(a) Series D Exchange. Each of the Series D Holders hereby
exchanges the number of shares of Old Series D Preferred set forth on Schedule
1.3(a) hereto for the number of shares of Series B Preferred set forth on
Schedule 1.3(a) hereto, and the Company hereby issues such number of shares of
Series B Preferred to such Series D Holders in exchange for such shares of Old
Series D Preferred. Each Series D Holder acknowledges and agrees that the number
of shares of Old Series D Preferred opposite its name on Schedule 1.3(a) hereto
constitutes all of the shares of Old Series D Preferred in which it has any
right, title or interest, and that upon the completion of the exchange
transaction described in this subparagraph, it shall have no right, interest or
claim of any kind whatsoever relating to the Old Series D Preferred.
(b) Series E Exchange. Each of the Series E Holders hereby
exchanges the number of shares of Old Series E Preferred set forth on Schedule
1.3(b) hereto for the number of shares of Series B Preferred set forth on
Schedule 1.3(b) hereto, and the Company hereby issues such number of shares of
Series B Preferred to such Series E Holder in exchange for such shares of Old
Series E Preferred. Each Series E Holder acknowledges and agrees that the number
of shares of Old Series E Preferred opposite its name on Schedule 1.3(b) hereto
constitutes all of the shares of Old Series D Preferred in which it has any
right, title or interest, and that upon the completion of the exchange
transaction described in this subparagraph, it shall have no right, interest or
claim of any kind whatsoever relating to the Old Series D Preferred.
(c) Crossbow Exchange. Crossbow hereby exchanges $1.5 million of
principal owing to Crossbow under the Bridge Notes and all accrued and unpaid
interest thereon for 60,000 shares of New Series C Preferred and cash payable to
Crossbow according to the wire
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transfer instructions previously furnished by Crossbow to the Company on account
of all accrued and unpaid interest on the Bridge Notes, and the Company hereby
issues and/or delivers such number of shares and cash to Crossbow in exchange
for the Bridge Notes and all rights, claims and demands (whether for principal,
interest or otherwise). Simultaneous with the execution of this Agreement,
Crossbow shall deliver the original Bridge Notes to the Company for cancellation
in accordance with the terms hereof. Crossbow acknowledges and agrees that upon
the completion of the exchange transaction describe in this subparagraph, it
shall have no rights, interests or claims of any kind whatsoever relating to the
Bridge Notes (including without limitation, claims for principal or interest
thereunder), which Bridge Notes shall be deemed paid in full and marked
cancelled.
(d) Series H Exchange. Each of the Series H Holders hereby
exchanges the number of shares of Old Series H Preferred set forth on Schedule
1.3(d) hereto for the number of shares of New Series C Preferred set forth on
Schedule 1.3(d) hereto, and the Company hereby issues such number of shares of
New Series C Preferred to such Series H Holders in exchange for such shares of
Old Series H Preferred. Each Series H Holder acknowledges and agrees that the
number of shares of Old Series H Preferred opposite its name on Schedule 1.3(d)
hereto constitutes all of the shares of Old Series H Preferred in which it has
any right, title or interest, and that upon the completion of the exchange
transaction described in this subparagraph, it shall have no right, interest or
claim of any kind whatsoever relating to the Old Series H Preferred.
(e) Warrant Exchange. Crossbow hereby exchanges warrants to
purchase 1,000,000 shares of Company Common Stock ("Old Warrants") for warrants
(in the form attached to the New Investment Agreement) to purchase 5,000 shares
of New Series C Preferred having an initial liquidation preference of $250,000
("New Warrants"), which New Series C Preferred underlying the New Warrants will
initially be convertible into 1,000,000 shares of Company Common Stock, and the
Company hereby issues such number of New Warrants to Crossbow in exchange for
the Old Warrants. Crossbow acknowledges and agrees that the Old Warrants
constitute all of the warrants to purchase capital stock of the Company in which
it has any right, title or interest, and that upon the completion of the
exchange transaction describe in this subparagraph, it shall have no right,
interest or claim of any kind whatsoever relating to the Old Warrants.
1.4 Option Pool. The Company shall create a new pool of options to
purchase 13,650,000 shares of Company Common Stock (the "Options"). All options
shall have an exercise price greater than or equal to the fair market value of
the Company Common Stock on the date of grant. Schedule 1.4 hereto sets forth
the persons, amounts and exercise prices of the initial grants of Options to be
made at Closing.
1.5 Registration Rights Agreement. Each of the parties are entering
into the Registration Rights Agreement in the form attached hereto as Exhibit C.
1.6 Stockholders Agreement. Each of the Parties are entering into the
Stockholders Agreement in the form attached hereto as Exhibit D.
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1.7 Termination of Existing Agreements. The applicable Parties agree
that (a) that certain registration rights agreement dated January 2001, and (b)
that certain registration rights agreement dated as of May 15, 2002 are hereby
terminated and of no further force or effect. Each Investor acknowledges and
agrees that upon the completion of the transactions contemplated in this
Agreement, except as set forth in the Registration Rights Agreement described in
Section 1.5 above, such Investor shall have no right to cause the Company to
file any registration under the Securities Act of 1933, as amended (the
"Securities Act") or to otherwise cause the Company to register or qualify any
of its securities or the offer and sale of any such securities under the
Securities Act or any applicable state securities laws.
1.8 Senior Debt Documents. DVI Credit and the Company are amending the
Senior Debt Documents in the form attached hereto as Exhibit E.
1.9 Employment Agreements. Xxxxxxx Xxxxxxx is entering into an
employment agreement with the Company in the form attached hereto as Exhibits G.
1.10 Right of First Offer. The Company shall provide to DVI twenty (20)
business days notice prior to incurring additional indebtedness (including
capital lease financing) with respect to the acquisition or leasing of equipment
and similar assets, including radiation therapy and associated equipment. Within
ten (10) business days of receipt of such notice, DVI may indicate to the
Company in writing its willingness to provide such financing and propose the
terms of such financing. If DVI declines to provide such notice within such ten
(10) business day period or indicates its unwillingness to provide such
financing, the Company may complete such financing with one or more third
parties within one hundred twenty (120) days of the expiration of such ten (10)
business day period. In addition, if DVI has indicated its willingness in
writing to provide such financing and specified the proposed terms of such
financing, the Company may complete such financing with one or more third
parties within one hundred twenty (120) days of receipt by the Company from DVI
of notice of such willingness and the terms of financing, if the financing with
the third party or parties is on terms the Board of Directors of the Company has
concluded in good faith are more advantageous to the Company than are the terms
proposed by DVI.
SECTION 2. CONDITIONS TO CLOSING.
In addition to the transactions set forth above, the effectiveness of
this Agreement and the transactions set forth above, is conditional upon the
prior satisfaction (or waiver in writing by the parties entitled to performance)
of the following conditions:
2.1 Corporate Documents of the Company. The Company shall have caused
the Certificate of Designations in the form attached hereto as Exhibit B to be
filed with the Secretary of State of the State of Delaware.
2.2 Effectiveness of Senior Debt Amendment. The Senior Debt Documents
shall have been amended in the form of those documents attached as Exhibit E
hereto and all existing Defaults and Event of Defaults (as defined in the Senior
Debt Documents) shall have been permanently waived and the covenants therein
shall be amended as set forth in Exhibit E.
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2.3 Execution of Other Agreements. Each of the transactions described
in Section 1 of this Agreement shall have been consummated and all conditions to
the effectiveness of such transactions shall have been satisfied or waived
(other than any conditions related to the effectiveness of this Agreement).
SECTION 3. REPRESENTATIONS AND WARRANTIES.
3.1 General. Each Party hereby represents and warrants to the others
that: (a) it has all requisite power and authority to enter into this Agreement
and to consummate the transactions contemplated hereby; (b) the execution and
delivery of this Agreement by it, and the consummation by it of the transactions
contemplated hereby, has been duly authorized by all necessary corporate,
limited liability company or limited partnership (as applicable) action; (c) the
execution and delivery of this Agreement by it, and the consummation by it of
the transactions contemplated hereby, do not and will not (i) violate any
provision of any law or any governmental rule or regulation applicable to it,
its organizational documents or any order, judgment or decree of any court or
other agency of government binding upon it, (ii) conflict with, result in a
breach of or constitute (with due notice or lapse of time or both) a default
under any material contract, indenture, agreement or other instrument or
document to which it is a party or by which its properties or assets are bound,
(iii) result in or require the creation or imposition of any lien, charge or
encumbrance upon any of its properties or assets or (iv) require it to obtain
any approval or consent of any person, entity or governmental or regulatory
authority that has not been obtained; (d) this Agreement and each of the
agreements to be entered into by it in connection herewith are its legally valid
and binding obligations, enforceable against it in accordance with their
respective terms, subject to the effects of any applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting creditors
generally and general principles of equity; and (e) it has not employed any
brokers or finders who may be due a fee in connection with the transactions
hereunder.
3.2 Representations and Warranties of the Company. The Company hereby
represents and warrants to each of the Investors that: (a) each share of Series
A Preferred, Series B Preferred and New Series C Preferred (collectively,
"Equity Securities") issued pursuant to this Agreement, has been duly authorized
and validly issued, is fully paid and non-assessable and is free and clear of
any liens, charges or encumbrances or any restrictions on transfer or voting,
other than as set forth in the Securities Holders Agreement, the Amended and
Restated Certificate of Incorporation of the Company, as amended, or as provided
under applicable securities laws, and other than ones created by or imposed upon
the holders thereof by parties other than the Company; and (b) Schedule 3.2
hereto contains a true, correct and complete list of all record holders of the
Company's capital stock (other than the Company Common Stock) immediately prior
to the consummation of the transactions contemplated hereby (without giving
effect to the Restructuring), and immediately following the consummation of such
transactions (after giving effect to the Restructuring), and the amount and type
of capital stock held by each such record holder (other than the Company Common
Stock) both immediately prior to and immediately following the consummation of
such transactions.
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3.3 Representations and Warranties of Investors. Each Investor
represents and warrants to the Company that: (a) it owns beneficially and of
record the Bridge Notes, Old Series C Preferred, Old Series D Preferred, Old
Series E Preferred or Old Series H Preferred to be exchanged by it pursuant to
Section 1 hereof free and clear of any liens, charges or encumbrances; (b) it is
an accredited investor as defined in Regulation D under the Securities Act of
1933, as amended, and the rules and regulations of the Securities and Exchange
Commission promulgated thereby; (c) it is acquiring the Equity Securities to be
issued to it in exchange for cash or its Bridge Notes and/or Old Series C
Preferred, Old Series D Preferred, Old Series E Preferred or Old Series H
Preferred (as applicable) for its own account, for investment and not with a
view to the distribution or resale thereof; (d) it has such knowledge and
experience in financial and business matters that it is capable of evaluating
the merits and risks of its investment in the Equity Securities and New Senior
Subordinated Notes; (e) it acknowledges that is has reviewed and discussed the
Company's business, affairs and current prospects with such officers of the
Company and others as it has deemed appropriate or desirable, (f) it has
received and reviewed the Company's Annual Report on Form 10-K for the period
ended December 31, 2002 and the Company's unaudited statement of operations and
balance sheet for the period ended April 30, 2003; (g) it understands that the
Company has filed documents with the Securities and Exchange Commission to
deregister under the Securities Exchange Act of 1934, as amended, and that
accordingly, the Company will not be filing periodic reports with the Securities
and Exchange Commission and the Company's securities will not be listed for
trading on any securities exchange; (h) it understands that the Equity
Securities will not be registered under the Securities Act of 1933, as amended,
or any state securities or blue sky law, on the grounds that the offering and
sale of the Equity Securities contemplated by its Agreement are exempt from
registration pursuant to the exceptions available under such laws, and that the
reliance by the Company upon such exemptions is predicated upon the Investors'
representations set forth herein; (i) it is not a party to any contract,
agreement or arrangement with the Company which is not described on one or more
of the Exhibits to the New Investment Agreement and (j) it consents to the
transactions contemplated hereby and waives any preemptive or similar rights it
may have.
3.4 Survival. The representations and warranties of the Parties
contained herein shall survive indefinitely.
SECTION 4. MISCELLANEOUS.
4.1 Amendments and Waivers. Except as otherwise provided herein, no
amendment, modification, termination or waiver of any provision of this
Agreement shall in any event be effective unless the same shall be in writing
and signed by the Party against whom such amendment, modification, termination
or waiver is sought to be enforced. The waiver by any Party 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 any 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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4.2 Notices. Any notice or other communication required shall be in
writing addressed to the respective Party as set forth below and may be
personally delivered, telecopied, sent by overnight courier service or U.S. mail
and shall be deemed to have been given: (a) if delivered in person, when
delivered; (b) if delivered by telecopy, on the date of transmission if
transmitted on a business day before 5:00 p.m. Eastern time or on the next
business day if delivered after 5:00 p.m. Eastern time; (c) if delivered by
overnight courier, one (1) business day after delivery to the courier properly
addressed; or (d) if delivered by U.S. mail, three (3) business days after
deposit with postage prepaid and properly addressed. Notices shall be addressed
as follows:
(i) If to the Company at:
OnCURE Medical Corp.
000 Xxxxxxx Xxxxxx Xxxxx, Xxxxx 000
Xxxxxxx Xxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
With a copy to:
Xxxxxxx Berlin Shereff Xxxxxxxx, LLP
The Chrysler Building
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
(ii) If to DVI at:
DVI Business Credit Corporation
0000 Xxxx Xxxx
Xxxxxxx, XX 00000
Attention: Credit/Documentation/Legal Departments
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
With a copy to:
DVI Financial Services Inc.
0000 Xxxx Xxxx
Xxxxxxx, XX 00000
Attention: Credit/Documentation/Legal Departments
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
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(iii) If to the Series D Holders at:
The address listed below such persons name on the
signature pages hereto
(iv) If to the Series H Holders (other than Crossbow) at:
The address listed below such persons name on the
signature pages hereto
(v) if to Mercurius at:
Mercurius Beleggingsmaatschappij BV
Xxxxxxxxxx 000
0000 XX Xxxxxxx
Xxxxxxxxxxx
Attn: Xxxxx X. Xxxxxx
Telephone:
Facsimile:
(vi) if to Avanti at:
Participatie Maatschappij Avanti Limburg BV
Xxxxxxxxxx 000
0000 XX Xxxxxxx
Xxxxxxxxxxx
Attn: Xxxxx X. Xxxxxx
Telephone:
Facsimile:
(vii) if to Crossbow at:
Crossbow Venture Partners, LP
Xxx Xxxxx Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxx Xxxx Xxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxx
Telephone:
Facsimile: (000) 000-0000
with a copy to
Xxxxxxxxx Xxxxxxx, P.A.
000 X. Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxxx, Esq.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
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4.3 Successors and Assigns, Third Party Beneficiaries. This Agreement
shall inure to the benefit of and be binding upon the parties and their
respective successors and permitted assigns.
4.4 Counterparts. This Agreement may be executed in one or more
counterparts, each of which when so executed shall be deemed to be an original
and all of which taken together shall constitute one and the same instrument.
4.5 Headings. The headings in this Agreement are for convenience of
reference only and shall not affect the meaning of any provision of this
Agreement.
4.6 Governing Law. The validity, performance, construction and effect
of this Agreement shall be governed by and construed in accordance with the
internal laws of the State of Delaware applicable to agreements made and to be
performed therein, without regard to conflicts of law principles. The parties
hereto agree to submit to the exclusive jurisdiction of the federal and state
courts located in Wilmington County, Delaware in any action or proceeding
arising out of or relating to this Agreement.
4.7 Severability. If any one or more of the provisions contained
herein, or the application thereof in any circumstance, is held to be invalid,
illegal or unenforceable, the validity, legality and enforceability of any such
provision in every other respect and of the remaining provisions contained
herein shall not be affected or impaired thereby.
4.8 Entire Agreement. This Agreement, together with the other
agreements and documents referenced herein, is intended by the parties as a
final expression of their agreement and intended to be a complete and exclusive
statement of the agreement and understanding of the parties hereto in respect of
the subject matter contained herein. This Agreement supersedes all prior
agreements and understandings between the parties with respect to such subject
matter.
4.9 Construction. Each Party hereto acknowledges that each of them has
had the benefit of legal counsel of its own choice and has been afforded an
opportunity to review this Agreement with its legal counsel and that this
Agreement shall be constructed as if jointly drafted by each Party hereto.
4.10 Further Assurances. Each Party, at the request of another Party,
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 the Restructuring and the transactions contemplated thereby and
hereby.
4.11 No Claims with Respect to the Restructuring. Each Investor (other
than the Purchasers) acknowledges and agrees that neither such Investor nor any
of their affiliates has any claim or cause of action against the Company (or any
of its directors, officers, employees or agents) with respect to the obligations
to be performed by the Company under the Bridge Notes, Old Series C Preferred,
Old Series D Preferred, Old Series E Preferred or Old Series H Preferred and the
agreements entered into in connection therewith. Therefore, each Investor
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unconditionally releases, waives and forever discharges any and all liabilities,
obligations, duties, promises, indebtedness, claims, offsets, causes of action,
suits or defenses of any kind whatsoever (if any), whether against the Company
or any of its directors, officers, employees or agents, which existed, arose or
occurred at any time prior to the date hereof or which could thereafter arise as
the result of the execution of (or the satisfaction of any condition precedent
or subsequent to) this Agreement with respect to, or otherwise arising in
connection with, the obligations to be performed by the Company under the Bridge
Notes, Old Series C Preferred, Old Series D Preferred, Old Series E Preferred or
Old Series H Preferred and the agreements entered into in connection therewith.
Nothing contained herein shall be deemed to constitute a release, waiver or
discharge of any liabilities, obligations, duties, provision of indebtedness of
the Company under the Senior Debt Documents, any agreements evidencing existing
lease or loan transactions between DVI and the Company or an affiliate of the
Company, this Agreement or any other agreements, documents or instruments
executed in connection with any of the foregoing.
-12-
IN WITNESS WHEREOF, the Parties have executed this Restructuring
Agreement as of the date first above written.
OnCURE MEDICAL CORP.
By: /s/ Xxxxxxx X. Xxxxxxx
----------------------
Name: Xxxxxxx X. Xxxxxxx
Title: President and Chief Executive Officer
DVI FINANCIAL SERVICES INC.
By: /s/ Xxxxxxx Xxxxxx
------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
DVI BUSINESS CREDIT CORPORATION
By: /s/ Xxxxxxx Xxxxxx
------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
/s/ Xxxxxxx Xxxxxxxx
--------------------
Xxxxxxx Xxxxxxxx
/s/ Xxxxxxx X. Xxxxxxx
----------------------
Xxxxxxx X. Xxxxxxx
/s/ Xxxxx Xxxxxxxxx
-------------------
Xxxxx Xxxxxxxxx
/s/ Xxxxxx X. Xxxxx
------------------
Xxxxxx X. Xxxxx
CROSSBOW VENTURE PARTNERS, LP
By: Crossbow Venture Partners Corp., as its
General Partner
By: /s/ Xxxxxx X. Xxxxxx
---------------------
Name: Xxxxxx X. Xxxxxx
Title: President
MERCURIUS BELEGGINGSMAATSCHAPPIJ BV
By: /s/ HHF Xxxxxxxxx
-----------------
Name: HHF Xxxxxxxxx
Title: President
PARTCIPATIE MAATSCHAPPIJ AVANTI LIMBURG BV
By: /s/ HHF Xxxxxxxxx
-----------------
Name: HHF Xxxxxxxxx
Title: President
/s/ Xxxxxxx X. Xxxxxxx
----------------------
Xxxxxxx X. Xxxxxxx
/s/ Xxxxx X. Xxxxxxx
--------------------
Xxxxx X. Xxxxxxx
/s/ Xxxx X. Xxxxx, Xx.
----------------------
Xxxx X. Xxxxx, Xx.
/s/ Xxxxxxx X. Xxxxxxx, Xx.
---------------------------
Xxxxxxx X. Xxxxxxx, Xx.
/s/ Xxxxxxx X. Xxxxxxxx
-----------------------
Xxxxxxx X. Xxxxxxxx
/s/ Xxxxxx X. Xxxxxxx
---------------------
Xxxxxx X. Xxxxxxx
