EXHIBIT 10.35
PHYSICIAN HEALTH CORPORATION
Equity Call Agreement
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This Agreement, dated as of June 16, 1997, is among Physician Health
Corporation, a Delaware corporation (the "Company"), Metroplex
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Hematology/Oncology Associates, L.L.P., a Texas limited liability partnership
(the "Seller"), and Weston Presidio Capital Partners II, L.P. ("WPC") and the
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other Investors set forth on the signature pages below (the "Investors").
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Recitals
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(a) On the date hereof, the Seller is selling substantially all tangible
and intangible assets relating to its medical practice to the Company's
subsidiary MHOA Texas I, LLC ("Texas Sub") pursuant to an Asset Purchase
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Agreement dated as of June 16, 1997 (as from time to time in effect, the
"Acquisition Agreement") for cash at the closing and promissory notes of Texas
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Sub and the Company to the Sellers, including $6,210,000 (the "First Payment")
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due on April 1, 1998 (the "Payment Date"). The Sellers would like credit
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assurance that the Company and Texas Sub will have funds available to make the
First Payment on the Payment Date.
(b) The Investors are investing $9,791,901 in the Company's Series B
Redeemable Convertible Preferred Stock, par value $0.01 per share (the "Series B
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Stock") and in warrants to purchase Common Stock of the Company (the "Purchase
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Warrants"), on the date hereof pursuant to a Securities Purchase Agreement dated
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as of the date hereof among the Company and the Investors (as from time to time
in effect, the "Securities Purchase Agreement"). Pursuant to the Securities
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Purchase Agreement, the Investors have agreed to invest an additional $6,210,620
in the Company's Series B Stock and Purchase Warrants on the Payment Date
pursuant to this Agreement.
Agreement
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In consideration of the foregoing and for other valuable consideration, the
receipt and sufficiency of which are acknowledged, the parties agree as follows:
1. Equity Call. Upon written request by either the Seller or the Company,
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which request may be made no sooner than March 27, 1998 and no later than April
8, 1998, each of the Investors shall severally pay to the Company the amount set
forth on Exhibit 1 hereto (collectively, the "Equity Payment") in exchange for
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the shares of Series B Stock and Purchase Warrants set forth on Exhibit 1
hereto. Upon receipt of a request for an Equity Payment, each
Investor must pay its portion of the Equity Payment no later than the third
business day after receipt of such request. The Equity Payment shall be made by
wire transfer or bank check in immediately available funds to the Company at the
following account: Account #0102212017 (PHC Maximizer) at NationsBank, Atlanta,
GA, ABA # 000000000. The Company will apply the proceeds of the Equity Payment
to enable Texas Sub to make the First Payment to the extent it has not already
paid such First Payment from other sources. The obligations of the respective
Investors to make the Equity Payment are several and are not joint or joint and
several.
Certificates for the shares of Series B Stock and Purchase Warrants for the
respective Investors have been deposited by the Company into escrow with WPC.
WPC shall release these certificates and Purchase Warrants to the Investors
against confirmation reasonably satisfactory to it that such Investor's Equity
Payment has been made.
Any Series B Stock and Purchase Warrants still being held in escrow by WPC
in connection with this Agreement on April 14, 1998 shall be returned to the
Company.
2. No Mitigating Circumstances. The obligations of the Investors to pay
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their several portions of the Equity Payment are absolute. Such payments must
be made notwithstanding any of the following circumstances or any other
circumstance:
2.1. The bankruptcy, insolvency or other financial difficulties of the
Company and its subsidiaries.
2.2. Any breach of a representation, warranty or covenant on the part of
the Company under the Securities Purchase Agreement, the failure of the Company
to satisfy any closing condition in the Securities Purchase Agreement and the
failure of the Company to comply with the Certificate of Designation (as defined
in the Securities Purchase Agreement) or any other Investor Agreement (as
defined in the Securities Purchase Agreement).
2.3. Any material adverse change in the business, operation, assets,
financial condition or prospects of the Company and its subsidiaries.
2.4. Any amendment or modification of the Acquisition Agreement.
Notwithstanding the foregoing provisions of this Section 2, the obligations
of the Company and Texas Sub to pay the First Payment to the Seller, and the
right of the Seller to request the Equity Payment from the Investors, shall be
subject to and reduced by any offset rights of the Company and Texas Sub
pursuant to Section 9.2 the Acquisition Agreement.
3. Representations and Warranties by the Investors. Each of the Investors
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represents and warrants with respect only to itself, and not as to any other
Investor, as follows:
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3.1. Organization and Authority. Such Investor is a duly organized,
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validly existing limited partnership or corporation under the jurisdiction of
its organization. Such Investor has all limited partnership or corporate power
and authority to enter into this Agreement and to perform its obligations as
contemplated hereby. This Agreement constitutes the legal, valid and binding
obligation of such Investor, enforceable against such Investor in accordance
with its terms, subject to bankruptcy, insolvency, reorganization, moratorium
and other laws of general application affecting the rights and remedies of
creditors generally and to general principles of equity, regardless of whether
enforcement is sought in proceedings in equity or at law.
3.2. No Conflict. The execution and delivery by such Investor of this
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Agreement does not, and the performance by such Investor of its obligations
hereunder will not, conflict with or result in a default under or violation of
any term or provision of:
(a) its limited partnership agreement or corporate charter or
bylaws;
(b) any agreement, instrument, deed or lease to which it may be
party or by which its properties may be bound;
(c) any statute, law or regulation applicable to it or its
properties; or
(d) any decree or order of any court or governmental authority
applicable to it or its properties.
3.3. Financial Condition. Such Investor is an "accredited investor" for
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purposes of Regulation D under the Securities Act of 1933, as amended. Such
Investor has furnished to the Sellers copies of its most recent audited
financial statements and annual report. Since the date of such financial
statements and annual report, such Investor has not incurred any material
adverse change in its business, operations, assets or financial condition.
4. Notices. Any notice, request or other communication under this
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Agreement shall be furnished in writing to the parties hereto at their addresses
set forth on the signature pages hereof or as such addressee may otherwise have
directed in writing by notice actually received by the addressor. Notices shall
be deemed to be given if actually delivered to the addressee at such address,
received by the addressee by legible telecopy or two days shall have elapsed
after having been delivered to a nationally recognized overnight courier for
delivery at such address, with return receipt requested.
5. Future Investors. From time to time WPC may propose additional
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Persons, who must be reasonably satisfactory to the Sellers, to join into this
Agreement as Investors. Such new Investors will join in this Agreement under a
joinder agreement reasonably satisfactory to the Sellers, and Exhibit 1 hereto
will be modified accordingly.
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6. Service of Process. Each of the Company and the Investors (a)
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irrevocably submits to the exclusive jurisdiction of the state courts of The
State of Texas and to the exclusive jurisdiction of the United States District
Court for the Northern District of Texas for the purpose of any suit, action or
other proceeding arising out of or based upon this Agreement or the subject
matter hereof or thereof brought by any party hereto or such party's successors
or assigns, and (b) waives to the extent not prohibited by law that cannot be
waived, and agrees not to assert, by way of motion, as a defense, or otherwise,
in any such proceeding, any claim that it is not subject personally to the
jurisdiction of the above-named courts, that its property is exempt or immune
from attachment or execution, that any such proceeding brought in one of the
above-named courts is improper, or that this Agreement or the Series B Stock and
Purchase Warrants, or the subject matter hereof or thereof, may not be enforced
in or by such court. Each of the Company and the Investors consents to service
of process in any such proceeding in any manner permitted by the laws of the
State of Texas, and agrees that service of process registered or certified mail,
return receipt requested, at its address specified in or pursuant to Section 4
is reasonably calculated to give actual notice.
7. WAIVER OF JURY TRIAL. TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW
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WHICH CANNOT BE WAIVED, THE INVESTORS AND THE COMPANY HEREBY WAIVE, AND COVENANT
THAT NEITHER THE COMPANY NOR THE INVESTORS WILL ASSERT, ANY RIGHT TO TRIAL BY
JURY ON ANY ISSUE IN ANY PROCEEDING, WHETHER AS PLAINTIFF, DEFENDANT OR
OTHERWISE, IN RESPECT OF ANY ISSUE, CLAIM, DEMAND, ACTION OR CAUSE OF ACTION
ARISING OUT OF OR BASED UPON THIS AGREEMENT OR THE SUBJECT MATTER HEREOF OR IN
ANY WAY CONNECTED WITH, RELATED OR INCIDENTAL TO THE DEALINGS OF THE INVESTORS
AND THE COMPANY HEREUNDER, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER
ARISING AND WHETHER IN TORT OR CONTRACT OR OTHERWISE. The Company acknowledges
that it has been informed by WPC that the provisions of this Section 7
constitute a material inducement upon which the Investors are relying and will
rely in entering into this Agreement and purchasing the Series B Stock and
Purchase Warrants pursuant hereto. Any Investor or the Company may file an
original counterpart or a copy of this Section 7 with any court as written
evidence of the consent of the Investors and the Company to the waiver of its
right to trial by jury.
8. General. This Agreement may be amended or modified only in writing
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signed by all parties hereto. This Agreement reflects the entire understanding
of the parties with respect to the subject matter hereof and supersedes all
prior and concurrent understandings and agreements with respect to the subject
matter hereof. The invalidity or unenforceability of any provision hereof shall
not affect the validity or enforceability of any other provision hereof, and any
invalid or unenforceable provision shall be modified to be enforceable to the
maximum extent of its validity or enforceability. This Agreement may be executed
in separate counterparts, each of which shall be deemed an original, and all of
which together shall constitute the same agreement. This Agreement shall be
governed by and construed in
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accordance with the laws (other than the conflict of laws rules) of the
Commonwealth of Massachusetts.
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Each of the parties has caused this Agreement to be executed and delivered
by its duly authorized officer or other signatory as of the date first written
above.
PHYSICIAN HEALTH CORPORATION
By
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Tile:
Physician Health Corporation
000 Xxxxxxx Xxxxx - Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
METROPLEX HEMATOLOGY/ONCOLOGY
ASSOCIATES, L.L.P.
By
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Title:
Metroplex Hematology/Oncology
Associates, L.L.P.
Arlington Cancer Center
000 Xxxx Xxxxxx Xxxx Xxxx
Xxxxxxxxx, Xxxxx 00000
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WESTON PRESIDIO CAPITAL PARTNERS II, L.P.
By WESTON PRESIDIO CAPITAL II, L.P.
By
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General Partner
Weston Presidio Capital
Xxx Xxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
BANCBOSTON VENTURES, INC.
By
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Title:
BancBoston Ventures, Inc.
000 Xxxxxxx Xxxxxx - 00xx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
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Signature Page to
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Equity Call Agreement
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MERCURY ASSET MANAGEMENT plc,
on behalf of ROWAN NOMINEES LIMITED
By
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Title:
Mercury Asset Management plc,
on behalf of Rowan Nominees Limited
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Telephone:
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Telecopy:
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NATWEST VENTURES INVESTMENTS LIMITED
By
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Title:
NatWest Ventures Investments Limited
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Telephone:
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Telecopy:
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Exhibit 1
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EXHIBIT 1 TO EQUITY CALL AGREEMENT
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Number of Shares of Number of Purchase
Series B Stock Warrants and Purchase
Name and Address and Purchase Price Price
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WESTERN PRESIDIO CAPITAL 542,473 shares of Series B Voting Common Stock Warrants
PARTNERS II, L.P. Voting Preferred (convertible for 54,247 shares of Voting
Xxx Xxxxxxx Xxxxxx into 542,473 shares of Voting Common Stock at an exercise
Xxxxxx, XX 00000 Common Stock) at a purchase price of $216,772.21 and a
Tel: (000) 000-0000 price of $2,169,892 purchase price of $216.99.
Fax: (000) 000-0000
BANCBOSTON INVESTMENTS 162,742 shares of Series B Non- Voting Common Stock Warrants
INC. Voting Preferred (convertible for 16,274 shares of Voting
000 Xxxxxxx Xxxxxx into 162,742 shares of Non- Common Stock at an exercise
31st Floor Voting Common Stock) at a price of $65,031.66 and a
Xxxxxx, XX 00000 purchase price of $650,967.60 purchase price of $65.10.
Tel: (000) 000-0000
Fax: (000) 000-0000
MERCURY ASSET 108,495 shares of Series B Non-Voting Common Stock
MANAGEMENT PLC Voting Preferred (convertible Warrants for 10,849 shares of
ON BEHALF OF ROWAN into 108,495 shares of Voting Voting Common Stock at an
NOMINEES Common Stock) at a purchase exercise price of $43,354.44 and
LIMITED price of $433,978.40 a purchase price of $43.40.
c/o EGL Holdings
0000 Xxxxxxxxx-Xxxxxxxx Xxxx
Xxxxxxxx 000, Xxxxx 000
Xxxxxxx, XX 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
NATWEST VENTURE 54,247 shares of Series B Voting Voting Common Stock Warrants
INVESTMENTS LIMITED Preferred (convertible into for 5,425 shares of Voting
c/o EGL Holdings 54,247 shares of Voting Common Stock at an exercise
0000 Xxxxxxxxx-Xxxxxxxx Xxxx Common Stock) at a purchase price of $21,677.22 and a
Xxxxxxxx 000, Xxxxx 000 price of $216,989.20 purchase price of $21.70.
Xxxxxxx, XX 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
Number of Shares of Number of Purchase
Series B Stock Warrants and Purchase
Name and Address and Purchase Price Price
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ST. XXXX VENTURE CAPITAL 162,742 shares of Series B Voting Common Stock Warrants
IV, LLC Voting Preferred for 16,274 shares of Voting
c/o St. Xxxx Venture Capital, Inc. (convertible into 162,742 Common Stock at an
Normandale Office Park, Suite shares of Voting Common Stock) exercise price of $65,031.66
1940 at a purchase price of and a purchase price of $65.10.
0000 Xxxxxxxxxx Xxxx Xxxx. $650,967.60
Xxxxxxxxxxx, XX 00000
Tel: 000-000-0000
Fax: 000-000-0000
PARTECH U.S. PARTNERS III 86,801 shares of Series B Voting Voting Common Stock Warrants
C.V. Preferred (convertible into for 8,680 shares of Voting
c/o Partech International 86,801 shares of Voting Common Stock at an
00 Xxxxxxxxxx Xxxxxx, Xxxxx 0000 Common Stock) exercise price of $34,685.65
Xxx Xxxxxxxxx, XX 00000 at a purchase price of and a purchase price of $34.72.
Tel: 000-000-0000 $347,203.69
Fax: 000-000-0000
U.S. GROWTH FUND 47,345 shares of Series B Voting Voting Common Stock Warrants
PARTNERS C.V. Preferred (convertible into for 4,735 shares of Voting
c/o Partech International 47,345 shares of Voting Common Stock at an exercise
00 Xxxxxxxxxx Xxxxxx, Xxxxx 0000 Common Stock) at a purchase price of $18,919.22 and a
Xxx Xxxxxxxxx, XX 00000 price of $189,381.60 purchase price of $18.94.
Tel: 000-000-0000
Fax: 000-000-0000
AXA U.S. GROWTH FUND 23,672.265 shares of Series B Voting Common Stock Warrants
LLC Voting Preferred (convertible for 2,367 shares of Voting
c/o Partech International into 23,672.265 shares of Voting Common Stock at an exercise
00 Xxxxxxxxxx Xxxxxx, Xxxxx 0000 Common Stock) at a purchase price of $9,459.44 and a
Xxx Xxxxxxxxx, XX 00000 price of $94,689.06 purchase price of $9.47.
Tel: 000-000-0000
Fax: 000-000-0000
DOUBLE BLACK DIAMOND II, 3,156 shares of Series B Voting Voting Common Stock Warrants
LLC Preferred (convertible into 3,156 for 316 shares of Voting
c/o Partech International shares of Voting Common Stock) Common Stock at an
00 Xxxxxxxxxx Xxxxxx, Xxxxx 0000 at a purchase price of exercise price of $1,261.19
Xxx Xxxxxxxxx, XX 00000 $12,624.51 and a purchase price of $1.26.
Tel: 000-000-0000
Fax: 000-000-0000
10
Number of Shares of Number of Purchase
Series B Stock Warrants and Purchase
Name and Address and Purchase Price Price
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ALMANORI LIMITED 1,199.38 shares of Series B Voting Common Stock Warrants
c/o Partech International Voting Preferred (convertible for 120 shares of Voting
00 Xxxxxxxxxx Xxxxxx, Xxxxx 0000 into 1,199.38 shares of Voting Common Stock at an
Tel: 000-000-0000 Common Stock) exercise price of $479.27
Fax: 000-000-0000 at a purchase price of and a purchase price of $0.48.
$4,797.52
MULTINVEST LIMITED 568 shares of Series B Voting Voting Common Stock Warrants
c/o Partech International Preferred (convertible into 568 for 57 shares of Voting Common
00 Xxxxxxxxxx Xxxxxx, Xxxxx 0000 shares of Voting Common Stock) Stock at an
Xxx Xxxxxxxxx, XX 00000 at a purchase price of exercise price of $226.89
Tel: 000-000-0000 $2,271.22 and a purchase price of $0.23.
Fax: 000-000-0000
PARIBAS PRINCIPAL 196,318 shares of Series B Voting Common Stock Warrants
INCORPORATED Voting Preferred (convertible for 19,632 shares of Voting
[ADDRESS] into 196,318 shares of Voting Common Stock at an
Tel: [ ] Common Stock) exercise price of $78,448.47
Fax: [ ] at a purchase price of and a purchase price of $78.53.
$785,270.00
NATIONAL CITY VENTURE 162,742 shares of Series B Non- Non-Voting Common Stock
CORPORATION Voting Preferred (convertible Warrants for 16,274 shares of
0000 X. 0xx Xxxxxx into 162,742 shares of Non- Non-Voting Common Stock at an
Suite 1010 Voting Common Stock) exercise price of $65,031.66
Xxxxxxxxx, XX 00000 at a purchase price of and a purchase price of $65.10.
Tel: 000-000-0000 $650,967.60
Fax: 000-000-0000
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