STOCKHOLDERS AGREEMENT
----------------------
This Stockholders Agreement (the "Agreement") is entered into as of
June 30, 2003, among (i) OnCure Medical Corp., a Delaware corporation (the
"Company"); (ii) the persons and/or entities listed as Common Holders on
Schedule I and any additional person and/or entity that, after the date hereof,
acquires shares of Common Stock (defined below) and join in and become a party
to this Agreement by executing and delivering to the Company an Instrument of
Accession in the form of Schedule II hereto (collectively, the "Common
Stockholders"); (iii) the persons and/or entities listed as Series A
Stockholders on Schedule I attached hereto (the "Series A Stockholders"); (iv)
the persons and/or entities listed as Series B Stockholders on Schedule I (the
"Series B Stockholders"); and (v) the persons and/or entities listed as Series
C-1 Stockholders on Schedule I (the "Series C-1 Stockholders"). The names and
addresses of all parties to this Agreement are set forth on Schedule I.
WHEREAS, the Company concurrently herewith is issuing to the Series A
Stockholders an aggregate of 10,834 shares of the Company's Series A Convertible
Preferred Stock, $.001 par value per share (the "Series A Preferred Stock"),
pursuant to the Restructuring Agreement dated as of June 30, 2003 among the
Company and the persons signatories thereto (the "Restructuring Agreement");
WHEREAS, the Company concurrently herewith is issuing to the Series B
Stockholders an aggregate of 150,325 shares of the Company's Series B
Convertible Preferred Stock, $.001 par value per share (the "Series B Preferred
Stock"), pursuant to the Restructuring Agreement;
WHEREAS, the Company concurrently herewith is issuing to certain of the
Series C-1 Stockholders an aggregate of 77,200 shares of the Company's Series
C-1 Convertible Preferred Stock, $.001 par value per share (the "Series C-1
Preferred Stock"), pursuant to the Restructuring Agreement;
WHEREAS, one of the Series C-1 Stockholders, Laurel Holdings II, L.L.C.
("Laurel Holdings"), is purchasing, concurrently herewith, an aggregate of
240,000 shares of Series C-1 Preferred Stock pursuant to the Securities Purchase
Agreement of even date herewith among the Company, certain of the Company's
subsidiaries and Laurel Holdings (the "Securities Purchase Agreement");
WHEREAS, in order to induce the Series A Stockholders, Series B
Stockholders and certain of the Series C-1 Stockholders to agree to a capital
restructuring of the Company and one of the Series C-1 Stockholders to make a
new investment in the Company, the Company has agreed with the parties hereto to
enter into this Stockholders Agreement;
NOW, THEREFORE, in consideration of the mutual covenants herein
contained and other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties hereto agree as follows:
1. Certain Definitions. As used in this Agreement, the following
terms shall have the following respective meanings (such meanings shall be
equally applicable to both the singular and the plural forms of the terms
defined):
"Affiliate" means, as to any specified Person, any other
Person controlling, controlled by or under common control with such specified
Person.
"Amended and Restated Charter" shall have the meaning ascribed
to such term in Section 7 below.
"Board of Directors" means the Board of Directors of the Company,
as constituted from time to time.
"Charter" means the certificate of incorporation of the Company,
as may be amended and/or restated from time to time.
"Closing Date" means June 30, 2003.
"Common Stock" means the Common Stock, $0.001 par value per share,
of the Company, as constituted as of the date of this Agreement.
"Company Sale Transaction" means (i) an acquisition of the Company
by another Person (other than Laurel Holdings or any of its Affiliates or
transferees) by means of any transaction or series of related transactions
(including, without limitation, any reorganization, merger or consolidation)
that would result in the transfer of fifty percent (50%) or more of the
outstanding voting power of the Company or in which the stockholders of the
Company immediately prior to such transaction would own, as a result of such
transaction, less than a majority of the voting securities, in the same relative
proportions, of the successor or surviving corporation immediately thereafter,
(ii) a sale of all or substantially all of the assets of the Company or (iii)
any liquidation or dissolution of the Company.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"fully-diluted basis" -- For purposes of this Agreement, when a
given number of shares of Common Stock held or outstanding is to be determined
on a "fully-diluted basis", such number shall include shares of Common Stock
deemed to be held or outstanding assuming the exercise by the holder(s) thereof
of all options (whether vested or unvested but excluding all stock options
issued prior to the Closing Date), warrants or other rights to acquire Common
Stock or securities convertible into or exchangeable for Common Stock, and then
the conversion and exchange by such holder(s) of all securities of the Company
convertible into or exchangeable for Common Stock.
"Holder" means each of the Common Stockholders, Series A
Stockholders, Series B Stockholders and Series C-1 Stockholders.
-2-
"Person" shall mean an individual, corporation, partnership, joint
venture, trust, or unincorporated organization, or a government or any agency or
political subdivision thereof.
"Preferred Holder" means each of the Series A Stockholders, Series
B Stockholders and Series C-1 Stockholders.
"Preferred Stock" means the Preferred Stock, $0.001 par value per
share, of the Company.
"Qualified Offering" shall mean a firm commitment underwritten
public offering of shares of the Company's Common Stock in which (i) the
aggregate net proceeds to the Company are at least $60 million and (ii) the
price paid by the public for such shares is at least $.50 per share (subject to
appropriate adjustment in the event of any stock dividend, stock split,
combination or other similar recapitalization affecting the Common Stock).
"Qualified Transferee" of a Preferred Holder means any Person (i)
who is a Preferred Holder, (ii) who is an "affiliated person" of a Preferred
Holder, as that term is defined in the Section 2(a)(3) of the Investment Company
Act of 1940, as amended or (iii) who is a partner of a Preferred Holder that is
a limited partnership or who is a member of a Preferred Holder that is a limited
liability company.
"Shares" shall mean and include all shares of Common Stock and
Preferred Stock of the Company owned by the Stockholders, whether presently held
or hereafter acquired.
"Stockholders" means the Common Stockholders, Series A
Stockholders, Series B Stockholders and Series C-1 Stockholders.
"Voting Stock" means all classes and series of capital stock of
the Company entitled to vote in the election of directors.
"Warrant" means the Series C-1 Preferred Stock Purchase Warrant
issued to Laurel Holdings pursuant to the Securities Purchase Agreement.
2. Sales and other Transfers of Shares by Holders.
----------------------------------------------
(a) Prohibited Transfers. Each Holder shall not sell, assign,
transfer, pledge, hypothecate, mortgage or dispose of, by gift or otherwise, or
in any way encumber, any Shares owned (including any shares beneficially owned)
by it except in compliance with the terms of this Agreement. The Company (or its
transfer agent) shall not transfer on the books of the Company any shares of the
Company's capital stock that are subject to this Agreement unless the provisions
hereof have been complied with in full. Any purported transfer by a Holder of
capital stock of the Company without full compliance with the provisions of this
Agreement shall be null and void.
-3-
(b) Permitted Transfers. Anything herein to the contrary
notwithstanding, the provisions of Sections 3 and 4 shall not apply to: (a) any
transfer of Shares by a Holder that is a natural person by gift or bequest or
through inheritance to, or for the benefit of, any member or members of his or
her immediate family (which shall include any spouse, lineal ancestor or
descendant or sibling) or to a trust, partnership or limited liability company
for the benefit of such members; (b) any transfer of Shares by a Holder that is
a natural person to a trust in respect of which he or she serves as trustee,
provided that the trust instrument governing said trust shall provide that such
Holder, as trustee, shall retain sole and exclusive control over the voting and
disposition of said Shares until the termination of this Agreement; (c) any
transfer of Shares by a Holder that is a limited partnership to its partners
(and, to the extent that any of such partners is a limited partnership or
limited liability company, to the partners or members of such partner); (d) by a
Holder that is a limited liability company to its members (and, to the extent
that any of such members is a limited partnership or limited liability company,
to the partners or members of such member); (e) by a Holder to any "affiliated
person", as defined in Section 2(a)(3) of the Investment Company Act of 1940, as
amended, of such Holder; (f) any sale of Common Stock in a public offering
pursuant to an effective registration statement filed by the Company with the
Securities and Exchange Commission; (g) any repurchase of shares of Common Stock
from officers, employees, directors or consultants of the Company which are
subject to restrictive stock purchase agreements under which the Company has the
option to repurchase such shares upon the occurrence of certain events,
including termination of employment; (h) the sale or other transfer of all
Shares then owned by a Holder that is an "investment company" within the meaning
of the Investment Company Act of 1940, as amended (or that would be an
"investment company" in the absence of the exceptions set forth in Sections
3(a)(1) and 3(a)(7) thereof), or is a private investment partnership, in a
single transaction or a series of related transactions involving the sale by the
Holder of its entire portfolio of equity and other investment securities; and
(i) any repurchase of shares of Series A Preferred Stock from DVI Financial
Services Inc. by the Company pursuant to the Restructuring Agreement. In the
event of any such permitted transfer, other than pursuant to subsection (f)
above, the transferee of the Shares shall hold the Shares so acquired with all
the rights conferred by, and subject to all the restrictions imposed by this
Agreement, and as a condition to such transfer, each such transferee shall
execute and deliver an Instrument of Accession in the form of Schedule II
agreeing to be bound by the provisions of this Agreement.
3. Right of First Refusal on Dispositions by the Holders.
-----------------------------------------------------
(a) Right of Preferred Holders (and Their Qualified
Transferees). If at any time a Holder wishes to sell, assign, transfer or
otherwise dispose of any or all Shares owned by him pursuant to the terms of a
bona fide offer received from a third party, such Holder (the "Selling Holder")
shall submit a written offer to sell such Shares (the "Offered Shares") to the
Preferred Holders and the Company on terms and conditions, including price, not
less favorable to the Preferred Holders and the Company than those on which the
Selling Holder proposes to sell such Shares to such third party (the "Offer").
The Offer shall disclose the identity of the proposed purchaser or transferee
(the "Offeree") , the Shares proposed to be sold or transferred, the agreed
terms of the sale or transfer, including price, and any other material facts
relating to the sale or transfer. Each Preferred Holder shall have the right to
purchase, on the same terms
-4-
and conditions set forth in the Offer, some or all of its pro rata amount of the
Offered Shares, which amount shall equal the aggregate number of Offered Shares
multiplied by a fraction, the numerator of which shall be the number of shares
of the Common Stock owned by such Preferred Holder, calculated on a
fully-diluted basis, and the denominator of which shall be the aggregate number
of shares of Common Stock owned by all Preferred Holders, calculated on a
fully-diluted basis. Any Preferred Holder may transfer to one or more Qualified
Transferees all or any part of such Preferred Holder's right to purchase its pro
rata amount of the Offered Shares. In the event a Preferred Holder (together
with its Qualified Transferees, if any) does not wish to purchase all of its pro
rata amount of the Offered Shares, then any Preferred Holder that (along with
its Qualified Transferees, if any) has elected to purchase its entire pro rata
amount shall have the right (which may be transferred in whole in or in part to
one or more Qualified Transferees) to purchase, on a pro rata basis with any
other Preferred Holders that have elected (along with their Qualified
Transferees, if any) to purchase their entire pro rata amounts, any Offered
Shares not purchased by a Preferred Holder (such shares being "Unsubscribed
Shares"). Each Preferred Holder (and its Qualified Transferees, if any) may
elect to purchase Offered Shares (including any Unsubscribed Shares) in
accordance with the terms hereof by giving written notice to the Selling Holder
and the Company within twenty (20) days of such Preferred Holder's receipt of
the Offer (an "Purchase Election Notice"). The Purchase Election Notice shall
state the total number of Offered Shares which such Preferred Holder or
Qualified Transferee is electing to purchase. In the event that a purchase
election is being made by a Qualified Transferee, the Purchase Election Notice
shall have attached to it a copy of the written transfer documentation from the
Preferred Holder to such Qualified Transferee, evidencing in sufficient detail
the extent to which such Preferred Holder's purchase rights in connection with
the Offer were transferred to Qualified Transferee. Each Purchase Election
Notice, when taken in conjunction with the Offer, shall be deemed to constitute
a valid, legally binding and enforceable agreement for the purchase by such
Preferred Holder or Qualified Transferee, as the case may be, of the maximum
number of Offered Shares elected to be purchased by such Preferred Holder or
Qualified Transferee, as the case may be, as are available for purchase by such
Preferred Holder or Qualified Transferee, as the case may be, in accordance with
the terms of this Section 3.
(b) Contingent Right of Company. If for any reason the
Preferred Holders (and their Qualified Transferees, if any) do not exercise
their right pursuant to Section 3(a) above to purchase all of the Offered
Shares, the Company shall have the right to purchase, on the same terms and
conditions set forth in the Offer, all of the Offered Shares that are not
purchased by the Preferred Holders and their Qualified Transferees pursuant to
this Section 3. The Company may elect to purchase Offered Shares subject to and
in accordance with the terms hereof by giving written notice to the Selling
Holder and the Preferred Holders within twenty (20) days of the Company's
receipt of the Offer (a "Company Election Notice"). The Company Election Notice
shall state the total number of Offered Shares that the Company is electing to
purchase, subject to the purchase right of the Preferred Holders and their
Qualified Transferees set forth in Section 3(a). Each Company Election Notice,
when taken in conjunction with the Offer, shall be deemed to constitute a valid,
legally binding and enforceable agreement for the purchase by the Company of the
maximum number of Offered Shares elected to be purchased by the Company as are
available for purchase by the Company in accordance with the terms of this
Section 3.
-5-
(c) Closings; Permitted Disposition by Selling Holder. Each
Closing on a purchase and sale of Offered Shares pursuant to Sections 3(a) or
3(b) above shall take place at the Company's principal offices at
mutually-agreeable times not later than forty-five (45) days after the date of
the Offer. In the event that the Preferred Holders (and their Qualified
Transferees, if any) and the Company, taken together, do not purchase all of the
Offered Shares pursuant to and within forty-five (45) days after the date of the
Offer, the Selling Holder may sell or otherwise transfer to the Offeree at any
time within 90 days after the date of the Offer, any Offered Shares that were
not so purchased by the Preferred Holders (and their Qualified Transferees, if
any) and the Company upon the exercise of the rights set forth in Sections 3(a)
and 3(b) above; provided, however, that any such sale or other transfer to the
Offeree shall be subject to the Selling Holder's compliance with the co-sale
requirements set forth in Section 4 below. Any such sale to the Offeree shall be
at not less than the price and upon other terms and conditions, if any, not more
favorable to the purchaser than those specified in the Offer. Any Offered Shares
not sold within such 90-day period shall continue to be subject to the
requirements of a prior offer and re-sale pursuant to this Section 3.
4. Right of Participation in Sales by Holders. In connection with any
sale, assignment, transfer or other disposition of Shares by a Selling Holder to
an Offeree, each Preferred Holder shall have the right to require, as a
condition to such sale or disposition, that the Offeree purchase from said
Preferred Holder, at the same price per share and on the same terms and
conditions as set forth in the Offer, that number of shares as is equal to such
Preferred Holder's Co-Sale Fraction (defined below). Each Preferred Holder so
wishing to participate in any such sale or disposition shall give written notice
to the Selling Holder and the Company of such intention as soon as practicable
after receipt of the Offer made pursuant to Section 3, and in all events within
twenty (20) days after receipt thereof. The Selling Holder and/or each
participating Preferred Holder shall sell to the Offeree all, or at the option
of the Purchaser, any part of the shares proposed to be sold by them at not less
than the price and upon other terms and conditions, if any, not more favorable
to the Offeree than those originally offered; provided, however, that if the
Offeree elects to purchase fewer than all of the Shares set forth in the Offer,
then the number of shares to be sold to the Offeree by each of the Selling
Holder and any participating Preferred Holder shall be reduced proportionally.
The Selling Holder shall use its best efforts to obtain the agreement of the
Offeree to the participation of the participating Preferred Holders in the
contemplated sale, and shall not sell any Shares to such Offeree if such Offeree
declines to permit the participating Preferred Holders to participate pursuant
to the terms of this Section 4. The provisions of this Section 4 shall not apply
to the sale of any Shares by a Holder to a Preferred Holder pursuant to an Offer
under Section 3. The "Co-Sale Fraction" of each Preferred Holder participating
in the sale or other disposition of shares to the Offeree pursuant to this
Section 4 shall equal the product obtained by multiplying (a) the aggregate
number of Shares to be purchased by the Offeree by (b) a fraction, the numerator
of which shall be the number of shares of the Common Stock owned by such
Preferred Holder, calculated on a fully diluted basis, and the denominator of
which shall be the aggregate number of shares of Common Stock owned by the
Selling Holder and all other Preferred Holders electing to participate in such
sale or other distribution, calculated on a fully-diluted basis.
-6-
5. Election of Directors.
---------------------
Each of the parties hereto agrees to vote all voting securities of the
Company now owned or hereafter acquired by such party (and attend, in person or
by proxy, all meetings of stockholders called for the purpose of electing
directors), and the Company agrees to take all actions (including, but not
limited to the nomination of specified persons) to cause and maintain the
election to the Board of Directors, subject to and to the extent permitted
pursuant to the Company's certificate of incorporation, the following:
(a) two (2) persons, elected by all of the stockholders of the
Company, voting as one class, one of whom shall be the then-serving chief
executive officer of the Company (the "CEO"), and who initially shall be Xxxxxxx
X. Xxxxxxx, and the other shall be an independent person designated by mutual
agreement of the CEO and the Board of Directors, and who initially shall be
Xxxxxxx X. Xxxxxxx, Xx.;
(b) two (2) persons, elected by the holders of the Series B
Preferred Stock, voting separately as one class (the "Series B Directors"),
provided that (i) for so long as Crossbow Venture Partners, LP ("Crossbow")
holds shares of Series B Preferred Stock in an amount at least equal to 25% of
the number of shares of Series B Preferred Stock issued to Crossbow on the
Closing Date (subject to appropriate adjustment in the event of any stock
dividend, stock split, combination or other similar recapitalization affecting
such shares), then one of the Series B Directors shall be a designee of
Crossbow, who initially shall be Xxxxxxx X. Xxxx, and (ii) for so long as
stockholders of Florida Radiation Oncology Group ("FROG") collectively hold
shares of Series B Preferred Stock in an amount at least equal to 25% of the
aggregate number shares of Series B Preferred Stock issued to the stockholders
of FROG on the Closing Date (subject to appropriate adjustment in the event of
any stock dividend, stock split, combination or other similar recapitalization
affecting such shares), then one of the Series B Directors shall be a designee
of FROG, who initially shall be Xxxxx X. Xxxxxxx, M.D.; and
(c) five (5) persons, elected by the holders of the Series C-1
Preferred Stock, voting separately as one class (the "Series C-1 Directors"),
provided that (i) for so long as Laurel Holdings holds shares of Series C-1
Preferred Stock in an amount at least equal to 25% of the number of shares of
Series C-1 Preferred Stock issued to Laurel Holdings on the Closing Date
(subject to appropriate adjustment in the event of any stock dividend, stock
split, combination or other similar recapitalization affecting such shares and
including, for this purpose, all shares of Series C-1 Preferred Stock issuable
upon exercise of the Warrant), then all of the Series C-1 Directors shall be
designees of Laurel Holdings; and further provided that (ii) for so long as
Laurel Holdings holds shares of Series C-1 Preferred Stock in an amount at least
equal to 5% but less than 25% of the number of shares of Series C-1 Preferred
Stock issued to Laurel Holdings on the Closing Date (subject to appropriate
adjustment in the event of any stock dividend, stock split, combination or other
similar recapitalization affecting such shares and including, for these
purposes, all shares of Series C-1 Preferred Stock issuable upon exercise of the
Warrant), then three of the Series C-1 Directors shall be designees of Laurel
Holdings. The initial designees of Laurel Holdings shall be Xxxxx X. Xxxx, Xxxxx
X. Xxxxx and Xxxxxxx X. Xxxx (it being understood that the Laurel Holdings
initially will leave the remaining two board seats vacant, without
-7-
prejudice to its right to nominate and/or elect persons to fill such board seats
at any time, which rights it may exercise in its sole discretion);
provided however, that notwithstanding the foregoing and in accordance with the
Charter, (1) the holders of the Series B Preferred Stock, voting separately as
one class, shall not be entitled (by such series vote) to elect directors to the
Board of Directors in the event that less than 10% of the aggregate shares of
Series B Preferred Stock issued by the Corporation remain outstanding, and (2)
the holders of the Series C-1 Preferred Stock, voting separately as one class,
shall not be entitled (by such series vote) to elect directors to the Board of
Directors in the event that less than 10% of the aggregate shares of Series C-1
Preferred Stock issued by the Corporation remain outstanding (but such holders
in each case shall remain entitled to vote in the election of directors with all
other stockholders of the Company).
Each of the parties further covenants and agrees to vote, to the extent
possible, all voting securities of the Company now owned or hereafter acquired
by such party so that the Company's Board of Directors shall consist of no more
than nine (9) members.
In the absence of any designation from the persons or groups so
designating directors as specified above, the director previously designated by
them and then serving shall be reelected if still eligible to serve as provided
herein.
Subject to the fiduciary obligations of each member of the Board of
Directors, no party hereto shall vote to remove any member of the Board of
Directors designated and/or elected in accordance with the aforesaid procedure
unless the persons or groups so designating and/or electing such director as
specified above so vote or direct that such director shall be removed, and in
such event, all parties hereto shall vote in favor of the removal of such
director.
Any vacancy on the Board of Directors created by the resignation,
removal, incapacity or death of any person designated under this Section 5 shall
be filled by another person designated and/or elected in a manner so as to
preserve the constituency of the Board of Directors as provided above.
6. Drag Along Right.
----------------
(a) In General. In the event that the Board of Directors of
the Company and the holders of a majority of the shares of Common Stock held by
all Series C-1 Stockholders, calculated on an as-converted basis (such majority,
the "Requesting Series C-1 Stockholders"), approve a Company Sale Transaction
(an "Approved Sale Transaction"), the Corporation, if so requested by the
Requesting Series C-1 Stockholders, promptly shall deliver a notice to all
Stockholders stating that the Company and the Requesting Series C-1 Stockholders
propose to effect such Approved Sale Transaction and that the Requesting Series
C-1 Stockholders are invoking their rights under this Section 6, and further
specifying the name and address of the proposed parties to such transaction and
the consideration payable in connection therewith (such notice, a "Sale
Transaction Notice"). Subject to the provisions of subsections (c) and (d)
below, at any time after seven (7) days following receipt of a Sale Transaction
Notice, each
-8-
Stockholder agrees to vote all Voting Stock now or hereafter owned or controlled
by it and to take all actions with respect to such Voting Stock in accordance
with the following provisions of this Section 6.
(b) Presence at Stockholders Meetings, Voting, Etc. In
connection with any Approved Sale Transaction, each Stockholder agrees, subject
to the limitations set forth in Section 6(c), as follows: (a) to be present, in
person or by proxy, at any duly noticed stockholder meeting at which an Approved
Sale Transaction will be voted upon, and to be counted for the purposes of
determining the presence of a quorum at any such meeting; (b) to vote (in
person, by proxy or by action by written consent, as applicable) all shares of
Voting Stock owned or controlled by it in favor of such Approved Sale
Transaction and in opposition of any and all other proposals that could
reasonably be expected to delay or impair the ability of the Company to
consummate such Approved Sale Transaction; and (c) to execute all related
documentation to consummate the Approved Company Sale Transaction, including,
without limitation, a stock purchase agreement, as may reasonably be requested
by the Company. If a Stockholder fails or refuses to vote or sell his Stock as
required by this Section 6, then such party hereby irrevocably constitutes and
appoints Laurel Holdings and any representative or agent thereof, with full
power of substitution, as its true and lawful attorney-in-fact with full
irrevocable power and authority in the place and stead of such Stockholder and
in the name of such Stockholder or in its own name, for the purpose of carrying
out the terms of this Section 6, to take any and all appropriate action and to
execute any and all documents and instruments which may be necessary or
desirable to accomplish the purposes of this Section 6. Such Stockholder hereby
ratifies all that said attorneys shall lawfully do or cause to be done by virtue
hereof.
(c) Limitations on Holders' Obligations. Each Stockholder's
obligations under Section 6(b) shall be subject to the following limitations:
(i) no Stockholder shall be required to make any representations or warranties
or covenants specific to such Stockholder in connection with such transaction
other than representations and warranties as to (A) such Stockholder's ownership
of its capital stock to be transferred free and clear of all liens, claims and
encumbrances; (B) such Stockholder's power and authority to effect such
transfer, and (C) such matters pertaining to compliance with securities laws as
the transferee may reasonably require; (ii) no Stockholder shall be required to
enter into any non-competition covenant or the like; (iii) such transaction
shall not impose greater duties or obligations on any Stockholder over another
without such Stockholder's consent; (iv) each Stockholder shall participate in
such transaction under the same terms and conditions (including as to the form
of the consideration to be received), provided that the amount of consideration
to be received by the Stockholders may be determined in accordance with the
terms of the certificate of incorporation of the Company as then in effect; (v)
no Stockholder shall be required to enter into any indemnification obligations
or the like for an amount that is greater than the net proceeds (including the
value of any securities received in exchange for securities of the Company) such
Stockholder receives in connection with such Company Sale Transaction and (vi)
in the event that a fairness opinion has been requested in accordance with the
provisions of subsection (d) below, the Company shall have received a fairness
opinion in substance that the Approved Sale Transaction is fair from a financial
point of view to the stockholders of the Company.
-9-
(d) Right to Require Fairness Opinion. Within seven (7) days
following receipt of a Sale Transaction Notice, the holder or holders of a
majority of the voting power of the Series A Preferred Stock and Series B
Preferred Stock, voting or consenting as a single class, may by written notice
to the Company request that the Company obtain a fairness opinion in connection
with the Approved Sale Transaction. Upon receipt of any such notice, the Company
shall promptly retain an independent, nationally-recognized investment bank,
which investment bank shall be reasonably satisfactory to the Series C-1
Requesting Stockholders holding a majority of the shares of Series C-1 Preferred
Stock held by all Series C-1 Requesting Stockholders, for the purpose of
rendering a fairness opinion with respect to the Approved Sale Transaction. All
fees and expenses of such investment bank shall be borne by the Company.
(e) Waiver and Termination of Drag-Along Right.
Notwithstanding anything herein to the contrary, (i) application of this Section
6 to any Approved Sale Transaction may be waived at any time by the Requesting
Series C-1 Stockholders upon written notice to such effect to the Company and
the Stockholders, and (ii) this Section 6 shall terminate at such time that
Laurel Holdings holds shares of Series C-1 Preferred Stock in an aggregate
amount less than 25% of the number of shares of Series C-1 Preferred Stock
issued to Laurel Holdings on the Closing Date (subject to appropriate adjustment
in the event of any stock dividend, stock split, combination or other similar
recapitalization affecting such shares and including, for this purpose, all
shares of Series C-1 Preferred Stock issuable upon exercise of the Warrant).
7. Filing of Amended and Restated Certificate of Incorporation. The
Company agrees to use commercially reasonable efforts to obtain the requisite
stockholder approval of and authorization for the filing of an Amended and
Restated Certificate of Incorporation of the Company to reflect (i) a reverse
split of the shares of the outstanding capital stock of the Company; (ii) an
increase in the number of authorized shares of Common Stock at least sufficient
to allow for the conversion of all outstanding shares of Preferred Stock on a
one-for-one basis; (iii) the elimination of the Series C Preferred Stock, Series
D Preferred Stock, Series E Preferred Stock and Series H Preferred Stock; and
(iv) such other amendments and modifications as may be necessary or appropriate,
in case of each of (i), (ii), (iii) and (iv) on terms approved by a majority of
the Board of Directors, which majority shall include two-thirds or more of the
directors elected solely by the holders of the Series C-1 Preferred Stock,
voting separately as one class (the "Amended and Restated Charter"), and subject
to such requisite stockholder approval, to file the Amended and Restated
Charter, properly executed and otherwise in proper form, with the Secretary of
State of the State of Delaware promptly upon the effectiveness of the
termination of the registration of the Common Stock under Section 12(g) of the
Exchange Act, pursuant to the Form 15 filed by the Company with the Securities
and Exchange Commission on or about May 9, 2003 (the "Form 15") and in no event
later than August 15, 2003. The Company covenants and agrees that it will not
withdraw or modify its Form 15 unless, in the opinion of Company counsel, any
failure to do so would result in a violation of the Exchange Act or the rules
promulgated thereunder, but in no event shall the Company take any action to
withdraw or otherwise modify its Form 15 without prior written notice to the
Series C-1 Stockholders. In connection with any proposed stockholder action to
approve the Amended and Restated Charter, each Stockholder agrees to be present,
in person or by proxy, at any duly noticed stockholder meeting at which the
proposal to adopt the Amended and Restated Charter will be voted upon,
-10-
and to be counted for the purposes of determining the presence of a quorum at
any such meeting, and to vote (in person, by proxy or by action by written
consent, as applicable) all shares of Voting Stock owned or controlled by it in
favor of such proposal to approve the Amended and Restated Charter and in
opposition of any and all other proposal that could reasonably be expected to
delay or impair the ability of the Company to approve and file the Amended and
Restated Charter. If a Stockholder fails or refuses to vote or sell its Stock as
required by this Section 7, then such party hereby irrevocably constitutes and
appoints Laurel Holdings and any representative or agent thereof, with full
power of substitution, as its true and lawful attorney-in-fact with full
irrevocable power and authority in the place and stead of such Stockholder, and
in the name of such Stockholder or in its own name, for the purpose of carrying
out the terms of this Section 7, to take any and all appropriate action and to
execute any and all documents and instruments which may be necessary or
desirable to accomplish the purposes of this Section 7. Such Stockholder hereby
ratifies all that said attorneys shall lawfully do or cause to be done by virtue
hereof.
8. Termination. This Agreement, and the respective rights and
obligations of the parties hereto, shall terminate upon the earliest to occur of
the following: (i) a Qualified Offering; or (ii) a Company Sale Transaction.
9. Notices. All notices and other communications hereunder shall be
in writing and shall be deemed to have been given when delivered or mailed by
first class, registered or certified mail (air mail if to or from outside the
United States), return receipt requested, postage prepaid, if to each
Stockholder at his respective address set forth on Schedule I hereto or on the
Instrument of Accession pursuant to which he became a party to this Agreement,
and if to the Stockholders, at their respective addresses set forth on Schedule
I hereto or to such other address as the addressee shall have furnished to the
other parties hereto in the manner prescribed by this Section 9.
10. Lock-up Agreement. Each of the Stockholders hereby agrees in
connection with a Qualified Offering, upon the request of the principal
underwriter managing such offering, not to sell publicly any shares of capital
stock of the Company now owned or hereafter acquired by him and subject to this
Agreement without the prior written consent of such underwriter for a period of
time (not to exceed one hundred and eighty (180) days for the first Qualified
Offering after the date of this Agreement and not to exceed ninety (90) days for
any subsequent registered public offering of the Company's Common Stock) from
the consummation of such Qualified Offering as the underwriter may specify, in
all events subject to the provisions of Section 11(g) of a certain Registration
Rights Agreement dated as of the date hereof.
11. Failure to Deliver Shares. If a Holder becomes obligated to sell
any Shares owned by such Holder to a Preferred Holder or a Qualified Transferee
under this Agreement and fails to deliver such shares in accordance with the
terms of this Agreement, such Preferred Holder may, at its option, in addition
to all other remedies it may have, send to the Company for the benefit of such
Holder the purchase price for such Shares as is herein specified. Thereupon, the
Company upon written notice to said Holder, (a) shall cancel on its books the
certificate(s) representing the Shares to be sold and (b) shall issue, in lieu
thereof, in the name of such Holder, a new
-11-
certificate(s) representing such Shares, and thereupon all of said Holder's
rights in and to such shares shall terminate. The Company may exercise a similar
remedy in enforcing its rights under Section 3. If a Holder transfers any shares
to an Offeree or any other Person in violation of this Agreement, the Company
may, at the election of a majority of the disinterested members of the Board of
Directors, cancel on the books of the Company any shares of capital stock then
held by such Holder, and any such breaching Holder agrees to purchase from such
Offeree or other Person any shares of capital stock equal to the amount so
transferred in violation of this Agreement.
12. Sufficient Authorized and Reserved Shares. The Company agrees to
use commercially reasonable efforts to obtain the requisite stockholder approval
of and authorization for the filing of such amendments to the Charter and take
such other actions as may be reasonable and necessary from time to time to
ensure that the Company has authorized and reserved sufficient shares of
Preferred Stock and Common Stock to enable the Company to satisfy its
obligations with respect to the issuance of such shares in accordance with the
terms of the Charter and/or the Securities Purchase Agreement. In connection
with any proposed stockholder action to approve any amendment to the Charter for
such purposes, each Stockholder agrees to be present, in person or by proxy, at
any duly noticed stockholder meeting at which the proposal to adopt such
amendment will be voted upon, and to be counted for the purposes of determining
the presence of a quorum at any such meeting, and to vote (in person, by proxy
or by action by written consent, as applicable) all shares of Voting Stock owned
or controlled by it in favor of such proposal to approve such amendment and in
opposition of any and all other proposal that could reasonably be expected to
delay or impair the ability of the Company to approve and file such amendment.
13. Manner of Voting; Grant of Proxy. The voting of shares pursuant to
this Agreement may be effected in person, by proxy, by written consent, or in
any other manner permitted by applicable law. Should the provisions of this
Agreement by construed to constitute the granting of proxies, such proxies shall
be deemed coupled with an interest and are irrevocable for the term of this
Agreement.
14. Specific Performance. The rights of the parties under this
Agreement are unique and, accordingly, the parties shall, in addition to such
other remedies as may be available to any of them at law or in equity, have the
right to enforce their rights hereunder by actions for specific performance to
the extent permitted by law.
15. Legend. The certificates representing the Shares shall bear on
their face a legend indicating the existence of the restrictions imposed hereby.
16. Entire Agreement. This Agreement constitutes the entire agreement
among the parties with respect to the subject matter hereof and supersedes all
prior agreements and understandings between them or any of them as to such
subject matter.
17. Waivers and Further Agreements. Any of the provisions of this
Agreement (except Sections 5 and 6) may be waived by an instrument in writing
executed and delivered by Stockholders holding a majority of the shares of
Common Stock held by all Stockholders,
-12-
calculated on a fully-diluted basis. Any waiver by any party of a breach of any
provision of this Agreement shall not operate or be construed as a waiver of any
subsequent breach of that provision or of any other provision hereof. Each of
the parties hereto agrees to execute all such further instruments and documents
and to take all such further action as any other party may reasonably require in
order to effectuate the terms and purposes of this Agreement. Notwithstanding
the foregoing, no waiver approved in accordance herewith shall be effective if
and to the extent that such waiver grants to any one or more Holders any rights
more favorable than any rights granted to all other Holders or otherwise treats
any one or more Holders differently than all other Holders.
18. Amendments. This Agreement may not be amended except by an
instrument in writing executed by (i) the Company and (ii) the holders of a
majority of the voting power of the outstanding shares of Common Stock, Series A
Preferred Stock, Series B Preferred Stock and Series C-1 Preferred Stock held by
the Common Stockholder, Series A Stockholder, Series B Stockholders and Series
C-1 Stockholders, voting or consenting as a single class; provided, however,
that, in addition to the foregoing, (a) any amendment to or adversely affecting
the rights set forth in Section 5(b)(i) shall require the written consent of
Crossbow; (b) any amendment to, or adversely affecting the rights set forth in,
Section 5(b)(ii) shall require the written consent of FROG; (c) any amendment
to, or adversely affecting the rights set forth in, Section 5(c) shall require
the written consent of Laurel Holdings; (d) any amendment to Section 6 shall
require the written consent of the holders of a majority of the voting power of
the Series C-1 Preferred Stock, voting or consenting as a single class; and (e)
any amendment hereto that adversely affects the rights or obligations of any
Common Stockholder, Series A Stockholder, Series B Stockholder or Series C-1
Stockholder, without adversely affecting the rights or obligations of all Common
Stockholders, Series A Stockholders, Series B Stockholders or Series C-1
Stockholders, as the case may be, in a similar manner shall be effective against
such Common Stockholder, Series A Stockholder, Series B Stockholder or Series
C-1 Stockholder, as the case may be, only if such Common Stockholder, Series A
Stockholder, Series B Stockholder or Series C-1 Stockholder has consented to
such amendment in writing.
19. Assignment; Successors and Assigns. This Agreement shall be
binding upon and shall inure to the benefit of the parties hereto and their
respective heirs, executors, legal representatives, successors and permitted
transferees, except as may be expressly provided otherwise herein.
20. Severability. In case any one or more of the provisions contained
in this Agreement shall for any reason be held to be invalid, illegal or
unenforceable in any respect, such invalidity, illegality or unenforceability
shall not affect any other provision of this Agreement and such invalid, illegal
and unenforceable provision shall be reformed and construed so that it will be
valid, legal, and enforceable to the maximum extent permitted by law.
21. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
-13-
22. Section Headings. The headings contained in this Agreement are for
reference purposes only and shall not in any way affect the meaning or
interpretation of this Agreement.
23. Governing Law; Exclusive Forum. This Agreement shall be governed
by and construed in accordance with the internal laws of the State of Delaware,
without regard to its principles of conflicts of laws. The exclusive forum in
any and all actions and proceedings related to this Agreement shall be the state
and federal courts in and for the State of Delaware, which courts shall have
exclusive personal and subject matter jurisdiction for such purpose, and the
parties hereto irrevocably submit to the exclusive jurisdiction of such courts
and irrevocably waive the defense of an inconvenient forum to the maintenance of
any such action or proceeding.
24. Additional Parties. The Company may require any person or entity
that purchases or otherwise acquires shares of Common Stock from the Company
after the date hereof to, as a condition to the purchase or other acquisition of
such shares (except in a case of any registered public offering of Common
Stock), become a party to this Agreement by signing and delivering to the
Company an Instrument of Accession substantially in the form of Schedule II
hereto. Upon such purchase or other acquisition of shares of Common Stock from
the Company in accordance with the terms of all applicable agreements and the
execution and delivery by such person or entity of such Instrument of Accession,
and the acceptance thereof by the Company, such person or entity shall be deemed
a Common Stockholder hereunder, and Schedule I hereto shall be automatically
amended without further action on the part of any of the parties hereto to
reflect that such person or entity is a Common Stockholder hereunder.
25. Conversion of Preferred Stock. Each Preferred Stockholder hereby
agrees not to exercise prior to the close of business on August 15, 2003 any
rights of conversion with respect to any shares of Preferred Stock owned or
controlled by such Preferred Stockholder.
26. Board Observation Right. For so long as stockholders of FROG
collectively hold shares of Series B Preferred Stock in an amount at least equal
to 25% of the aggregate number shares of Series B Preferred Stock issued to the
stockholders of FROG on the Closing Date (subject to appropriate adjustment in
the event of any stock dividend, stock split, combination or other similar
recapitalization affecting such shares), the Company shall permit a
representative of FROG, who initially shall be Xx. Xxxx X. Xxxxx, to attend each
meeting of the Board of Directors in a non-voting, observer capacity. The
Company will send such representative the notice of the time and place of any
such meeting in the same manner and at the same time as notice is sent to the
directors. The Company shall also provide to such representative copies of all
notices, reports, minutes, consents and other documents at the time and in the
manner as they are provided to the directors. The Company shall reimburse such
representative for all reasonable costs incurred by such representative in
connection with traveling to and from and attending meetings of the Board of
Directors.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
-14-
IN WITNESS WHEREOF, the parties hereto have executed this
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
CROSSBOW VENTURE PARTNERS, L.P.
By: Crossbow Venture Partners Corp., as its
General Partner
By: /s/ Xxxxxx X. Xxxxxx
--------------------
Name: Xxxxxx X. Xxxxxx
Title: President
MERCURIUS BELEGGINGSMAATSCHAPPIG BV
By: /s/ HHF Xxxxxxxxx
-----------------
Name: HHF Xxxxxxxxx
Title: President
PARTICIPATIE MAATSCHAPPIJ AVANTI LIMBURG BV
By: /s/ HHF Xxxxxxxxx
-----------------
Name: HHF Xxxxxxxxx
Title: President
/s/ Xxxxxxx X. Xxxxxxx
-----------------------
XXXXXXX X. XXXXXXX
/s/ Xxxxxxx X. Xxxxxxxx
-----------------------
XXXXXXX X. XXXXXXXX
SIGNATURE PAGE TO THE STOCKHOLDERS AGREEMENT
/s/ Xxxxxx X. Xxxxxxx
---------------------
XXXXXX X. XXXXXXX
/s/ Xxxxxxx X. Xxxxxxx
----------------------
XXXXXXX X. XXXXXXX, XX.
/s/ Xxxxx X. Xxxxxxx
--------------------
XXXXX X. XXXXXXX
/s/ Xxxx X. Xxxxx
-----------------
XXXX X. XXXXX, XX.
/s/ Xxxxxxx Xxxxxxxx
--------------------
XXXXXXX XXXXXXXX
/s/ Xxxxxxx X. Xxxxxxx
----------------------
XXXXXXX X. XXXXXXX
/s/ Xxxxx Xxxxxxxxx
-------------------
XXXXX XXXXXXXXX
/s/ Xxxxxx X. Xxxxx
-------------------
XXXXXX X. XXXXX
XXXXXX HOLDINGS II, L.L.C.
By: MedEquityCapital, LLC
By: /s/ Xxxxx X. Xxxxx
------------------
Name: Xxxxx X. Xxxxx
Title: Manager
STOCKHOLDERS AGREEMENT
