PURCHASE AGREEMENT
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THIS PURCHASE AGREEMENT dated as of May 15, 2002 (this "Agreement), is by
and between ONCURE TECHNOLOGIES CORP., a Florida corporation (the "Company"),
and ALPINE VENTURE CAPITAL PARTNERS LP, a Delaware limited Partnership (the
"Investor").
RECITALS
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WHEREAS, the Investor desires to purchase from the Company, and the Company
desires to issue and sell to the Investor, a convertible note of the Company in
the aggregate principal amount of $1.0 million and a warrant to purchase one
million (1,000,000) shares of common stock, par value $.001 per share (the
"Common Stock"), of the Company on the terms and subject to the conditions
herein.
AGREEMENT
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NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto, intending to
be legally bound, agree as follows:
ARTICLE I
ISSUANCE OF CONVERTIBLE NOTE
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SECTION 1.1 Authorization. The Company has duly authorized the issuance of
the Note and the Warrant.
SECTION 1.2 Purchase and Sale of the Convertible Note. Subject to all of
the terms and conditions hereof and in reliance on the representations and
warranties set forth herein, at the Closing (as defined below) the Company shall
issue and sell to the Investor, and the Investor shall purchase from the
Company, the Company's Convertible Promissory Note in the form attached hereto
as Exhibit A (the "Note") in the aggregate principal amount of $1,000,000 for an
aggregate purchase price of $1,000,000.
SECTION 1.3 Purchase and Sale of the Warrant. Subject to all of the terms
and conditions hereof and in reliance on the representations and warranties set
forth herein, at the Closing, the Company shall issue to the Investor on account
of the purchase of the Note a Warrant, in the form attached hereto as Exhibit B,
to purchase 1,000,000 shares of Company's Common Stock.
SECTION 1.4 Closing; Conditions to Closing. The closing of the sale of the
Note and the Warrant (the "Closing") shall occur on the date hereof (the
"Closing Date") upon the execution and delivery of this Agreement. The
Investor's obligation to purchase the Note and Warrant is subject to compliance
by the Company with its agreements and representations herein contained, and to
the satisfaction, at or prior to the Closing, of the following conditions:
(a) Related Agreements. Each of the Related Agreements shall have been
executed and delivered in a form provided for herein, and each of the Related
Agreements shall be in full force and effect and no term or condition thereof
shall have been amended, modified or waived except with the prior written
consent of the Investor. All covenants, agreements and conditions contained in
the Related Agreements which are to be performed or complied with on or prior to
the Closing shall have been performed or complied with in all material respects.
(b) Charter Documents; Good Standing Certificates. Investor shall have
received from the Company (a) a copy of the Company's Charter, certified by the
Florida Secretary of State to be true and complete as of a date no more than
twenty (20) days prior to the Closing Date, and (b) a copy, certified by the
Secretary of the Company (the "Secretary") to be true and complete as of the
Closing Date, of the by-laws of the Company.
(c) Proof of Corporate Action. Investor shall have received from the
Company a copy certified by the Secretary thereof to be true and complete as of
the Closing Date, of the records of all corporate actions taken to authorize the
execution, delivery and performance of this Agreement and each of the Related
Agreements to which the Company is a party.
(d) Incumbency Certificate. Investor shall have received from the
Company an incumbency certificate, dated the Closing Date, signed by a duly
authorized officer thereof and giving the name and bearing a specimen signature
of each individual who shall be authorized to sign, in the name and on behalf of
the Company, this Agreement and each of the Related Agreements to which the
Company is to become a party.
(e) Consents. Investor shall have received from the Company a copy of
each of the consents set forth on Schedule 2.8 hereto.
(f) Legal Opinion. Investor shall have received from Xxxxxxx Berlin
Shereff Xxxxxxxx, LLP a favorable opinion substantially in the form of Exhibit E
hereto.
(g) Payment of Certain Fees and Disbursements. The Company shall have
reimbursed the Investor for all reasonable costs and expenses (including, but
not limited to, legal and accounting expenses) incurred by it through the
Closing Date in connection with the transactions contemplated by this Agreement
and the Company shall have paid the reasonable legal fees and expenses of
Xxxxxxx & Xxxxxx, LLP counsel to the Investor, through the Closing Date in
connection with the transactions contemplated by this Agreement; provided, that
the Company is delivered invoices and other evidences of such expenses and the
amount of all such fees, costs and expenses does not exceed $25,000.
(h) Charter Amendment. The Company's Charter shall have been amended by
the filing of the Certificate of Designation with the Florida Secretary of
State.
(i) SBIC Letter. Investor shall have received from the Company a copy
of the investment letter substantially in the form of Exhibit F hereto.
SECTION 1.5 Tax Reporting. Together, the Note and the Warrant issued in
accordance with Sections 1.2 and 1.3 constitute an "investment unit" for the
purposes of Section 1273(c)(2)(A) of the Code. In accordance with Sections
1273(c)(2)(A) and 1273(b)(2) of the Code, the issue price of the investment unit
is the aggregate purchase price of the Note and Warrant as set forth in Section
1.2 hereof. Allocating that issue price among the Note and Warrant in proportion
to their fair market value, as required by Section 1273(c)(2)(B) of the Code and
Treasury Regulation 1.1273-2(h)(1), results in the Warrant having an issue price
of [$230,700] and the Note having an issue price of [$769,300]. None of the
parties will take any position in its Federal, state, or local tax returns or
otherwise that is inconsistent with the foregoing, unless required to do so by
an applicable taxing authority.
ARTICLE II
REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF THE COMPANY
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The Company represents and warrants to, and agrees with, the Investor as
follows:
SECTION 2.1 Organization, etc. The Company has been duly formed and is
validly existing as a corporation in good standing under the laws of the State
of Florida and is qualified to do business as a foreign corporation in each
jurisdiction in which the failure to be so qualified would have a material
adverse effect on the assets, liabilities, condition (financial or other),
business, results of operations or prospects (excluding, with respect to
prospects, general economic conditions and matters affecting the industry in
which the Company operates that are not specific to the Company) of the Company
(a "Material Adverse Effect"). The Company has all requisite corporate power and
authority, and all necessary authorizations, approvals, orders, licenses,
certificates and permits, to own, lease and operate its properties and to
conduct its business as presently conducted and to enter into, execute, deliver
and perform all of its duties and obligations under this Agreement and all
related instruments and agreements executed in connection herewith. The Company
is not in violation of any term of any agreement, instrument, judgment, decree,
order, statute, rule or government regulation applicable to the Company or to
which the Company is a party or to which its assets are subject which would, in
any individual instance, or in any series of related instances, have a Material
Adverse Effect.
SECTION 2.2 Corporate Power. The Company has all requisite legal and
corporate power to enter into, execute and deliver this Agreement and each of
the Related Agreements, to issue and sell the Note, the Warrant, the shares of
Series H Cumulative Accelerating Redeemable Preferred Stock, par value $0.001
per share (the "Series H Preferred Stock"), of the Company issuable upon
conversion of the Note, and the shares of Common Stock issuable upon conversion
of the Series H Preferred Stock and the exercise of the Warrant and to carry out
and perform its obligations under the terms of this Agreement and the Related
Agreements.
SECTION 2.3 Authorization. This Agreement and each of the Related
Agreements are valid and binding obligations of the Company enforceable against
the Company in accordance with their terms. The execution, delivery and
performance of this Agreement and each of the Related Agreements and the
issuance of the Note, the Warrant, the shares of the Series H Preferred Stock
and the shares of the Common Stock have been duly authorized by all necessary
corporation action of the Company.
SECTION 2.4 Subsidiaries.
(a) Except as set forth on Schedule 2.4(a) hereto, the Company does not
have any Subsidiaries and does not own or hold of record and/or beneficially own
or hold, directly or through a Subsidiary, any shares of any class of the
capital of any corporation or any legal or beneficial ownership interest in any
general or limited partnership, limited liability company, business trust or
joint venture or in any other unincorporated trade or business enterprise.
(b) Each of the Company's Subsidiaries is duly organized, validly
existing and in good standing in its jurisdiction of incorporation and is duly
qualified as a foreign corporation and authorized to do business in all other
jurisdictions in which the nature of its business or property makes such
qualification necessary and where the failure to so qualify would not have a
Material Adverse Effect. Each of the Company's Subsidiaries has all requisite
corporate power and authority, and all necessary authorizations, approvals,
orders, licenses, certificates and permits, to own, lease and operate its
properties and to conduct its business as presently conducted, as proposed to be
conducted and where the failure to obtain such authorization, approval, order,
license, certificate or permit would not have a Material Adverse Effect.
SECTION 2.5 Validity of Shares. The shares of Series H Preferred Stock
issuable upon conversion of the Note and the shares of Common Stock issuable
upon conversion of the Series H Preferred Stock and the exercise of the Warrant
have been duly and validly reserved and, upon issuance in accordance with the
provisions of the Note, the Series H Preferred Stock and the Warrant (as
applicable), will be duly and validly issued, fully paid, non-assessable and
free and clear of all liens, charges, claims and encumbrances (other than any
created by the Investor).
SECTION 2.6 Capitalization. As of the date hereof, the authorized capital
stock of the Company consists of 100,000,000 shares of Common Stock and
1,000,000 shares of preferred stock, $0.001 par value per share (of which 1,000
shares have been designated as Series H Preferred Stock). Without giving effect
to the transactions contemplated by this Agreement, the issued and outstanding
capital stock of the Company consists solely of (i) 10,222,513 shares of Common
Stock, (ii) 1,000 shares of Series C Cumulative Accelerating Redeemable
Preferred Stock, (iii) 1,000 shares of Series D Cumulative Accelerating
Redeemable Preferred Stock, and (iv) 1,000 shares of Series E Cumulative
Accelerating Redeemable Preferred Stock. Except as set forth on Schedule 2.6,
there are no outstanding rights (either pre-emptive or other) or options to
subscribe for or purchase from the Company, or any warrants or other agreements
providing for or requiring the issuance or purchase by the Company of, any
Capital Stock or any securities convertible into or exchangeable, for, or
exercisable into, its Capital Stock (other than the shares of preferred stock
described in clauses (ii), (iii) and (iv) above) or any voting trusts, proxies
or agreements relating to the voting of the Company's Capital Stock.
SECTION 2.7 Governmental Consents. Except for filing an amendment to the
Articles of Incorporation of the Company (setting forth the designations,
preferences and relative rights, and the qualifications, limitations and
restrictions of the Series H Preferred Stock) with the Department of State of
the State of Florida, the execution and delivery by the Company of this
Agreement and the performance by the Company of this Agreement and the
transactions contemplated by this Agreement, do not and will not require any
registration with, consent or approval of, or notice to, with or by, any
federal, state or other governmental authority or regulatory body, other than
the periodic and other filings under the Securities Exchange Act of 1934, as
amended, or as required to comply with the obligations of the Company under the
Registration Rights Agreement.
SECTION 2.8 No Violation. The execution and delivery of this Agreement and
each of the Related Agreements will not (i) except as set forth in Schedule 2.8
attached hereto, conflict with or result in a breach of any provision of the
articles of incorporation or by-laws of the Company, (ii) to the Company's
knowledge, except as set forth in Schedule 2.8, result in a material default or
breach of, or require any consent, approval, authorization or permit of, or
filing or notification to, any Person, company or entity under any of the terms,
conditions or provisions of any note, bond, mortgage, indenture, loan, factoring
arrangement, license, agreement, lease or other instrument or obligation to
which the Company or any of its Subsidiaries is a party, or by which the Company
or any Subsidiary or any of their assets may be bound, or (iii) violate any law,
judgment, order, writ, injunction, decree, statute, rule or regulation of any
court, administrative agency, bureau, board, commission, office, authority,
department or other governmental entity applicable to the Company or any
Subsidiary thereof which violation would have a Material Adverse Effect on the
Company and its Subsidiaries, taken as a whole.
SECTION 2.9 Issuances of Securities. The offering, issuance, sale and
delivery of the Note and the Warrant (and the issuance of the shares of Series H
Preferred Stock issuable upon conversion of the Note and the shares of Common
Stock issuable upon conversion of the Series H Preferred Stock) as contemplated
by this Agreement are exempt from the registration and prospectus delivery
requirements of the Securities Act, are being made in compliance with all
applicable state and federal laws and regulations concerning the offer, issuance
and sale of securities, and are not being issued in violation of any preemptive
or other rights of any stockholder of the Company. The parties hereto agree and
acknowledge that in making the representations and warranties in the foregoing
sentence of this Section 2.9, the Company is relying on the representations and
warranties made by the Investor in Section 3.4.
SECTION 2.10 Absence of Certain Developments. The Company's reports filed
with the Securities and Exchange Commission pursuant to the Exchange Act or
elsewhere in this Agreement (including the Schedules hereto), since December 31,
2001 there has been: (i) no material adverse change in the condition, financial
or otherwise, of the Company or its Subsidiaries, taken as a whole, or in the
assets, liabilities, properties or business of the Company or its Subsidiaries,
taken as a whole; (ii) no declaration, setting aside or payment of any dividend
or other distribution with respect to, or any direct or indirect redemption or
acquisition of, any capital stock of the Company or its Subsidiaries; (iii) no
waiver of any valuable right of the Company or its Subsidiaries or
cancellation of any material debt or claim held by the Company or its
Subsidiaries; (iv) no increase, direct or indirect, in the compensation paid or
payable to any officer, director, employee, agent or shareholder of the Company
or any Subsidiary (other than salary increases in the ordinary course of
business consistent with past practice which, individually or in the aggregate,
are not material); (v) no material loss, destruction or damage to any property
of the Company or any Subsidiary whether or not insured; (vi) no change in the
senior management or other key personnel of the Company or any Subsidiary with
whom the Company or any Subsidiary has a written employment agreement, or the
terms and conditions of their employment; (vii) no acquisition or disposition of
any assets (or any contract or arrangement therefor) nor any other material
transaction by the Company or any Subsidiary otherwise than for fair value in
the ordinary course of business consistent with past practice; or (viii) any
agreement or understanding, whether in writing or otherwise, for the Company or
any Subsidiary to take any actions specified in clauses (i) through (vi).
SECTION 2.11 Commission Filings. The Company has filed all required forms,
reports and other documents with the Commission for periods from and after
December 31, 2001 (collectively, the "Commission Filings"), each of which has
complied in all material respects with all applicable requirements of the
Securities Act and the Exchange Act. The Company has heretofore made available
to the Investor all of the Commission Filings, including the Company's Annual
Report on Form 10-KSB for the year ended December 31, 2001. As of their
respective dates, the Commission Filings (including all exhibits and schedules
thereto and documents incorporated by reference therein) did not contain any
untrue statement of a material fact or omit to state a material fact necessary
in order to make the statements made, in light of the circumstances under which
they were made, not misleading. The audited financial statements and unaudited
interim financial statements of the Company (the "Company Financial Statements")
included or incorporated by reference in such Commission Filings have been
prepared in accordance with GAAP (except as may be indicated in the notes
thereto or, in the case of the unaudited statements, as permitted by Form
10-QSB), complied as of their respective dates in all material respects with
applicable accounting requirements and the published rules and regulations of
the Commission with respect thereto, and fairly present the financial position
of the Company as of the dates thereof and the results of operations for the
periods then ended (subject, in the case of any unaudited interim financial
statements, to the absence of footnotes required by GAAP and normal year-end
adjustments).
SECTION 2.12 Taxes. The Company and its Subsidiaries have filed all tax
returns that are required to have been filed in any jurisdiction, and have paid
all taxes shown to be due and payable on such returns and all other taxes and
assessments levied upon them or their properties, assets, income or franchises,
to the extent such taxes and assessments have become due and payable and before
they have become delinquent, except for any taxes and assessments (i) the amount
of which is not individually or in the aggregate material or (ii) the amount,
applicability or validity of which is currently being contested in good faith by
appropriate proceedings and with respect to which the Company or its Subsidiary,
taken as a whole, has established adequate reserves in accordance with GAAP. The
Company knows of no basis for any other tax or assessment that
could reasonably be expected to have a Material Adverse Effect. The charges,
accruals and reserves on the books of the Company and its Subsidiaries, taken as
a whole, in respect of Federal, state or other taxes for all fiscal periods are
adequate.
SECTION 2.13 Litigation. Except as set forth on Schedule 2.13 or as
disclosed in the Company's reports filed with the Securities and Exchange
Commission pursuant to the Exchange Act, there are no actions, suits or
proceedings pending or, to the knowledge of the Company, threatened against or
affecting the Company or any Subsidiary or any property of the Company or any
Subsidiary in any court or before any arbitrator of any kind that, individually
or in the aggregate, could reasonably be expected to have a Material Adverse
Effect.
SECTION 2.14 Compliance with Law. The Company and each Subsidiary is in
compliance with all applicable laws, regulations, orders, judgments, decrees,
permits, licenses, franchises and authorizations, except where the failure to so
comply would not have a Material Adverse Effect. Neither the Company nor any
Subsidiary is in default under, or in violation of, or has violated (and not
cured such violation) any law (including, without limitation, laws relating to
the provision of healthcare services, issuance or sale of securities, antitrust,
zoning and building codes and ordinances, occupational safety, the protection of
the environment, transportation, storage or disposal of hazardous waste,
anti-pollution and air and water quality laws), or any licenses, franchises,
permits, authorizations or concessions granted by, or any judgment, decree,
writ, injunction or order of, any governmental or regulatory authority,
applicable to its business or any of its properties or assets, except where such
defaults and violations would not, in the aggregate, have a Material Adverse
Effect.
SECTION 2.15 Registration Rights. Except as set forth in Schedule 2.15
hereto, and except for the rights granted to the Investor pursuant to the
Registration Rights Agreement of even date herewith, no Person has demand or
other registration rights to cause the Company to file any registration
statement under the Securities Act relating to the securities of the Company or
any right to participate in any such registration statement.
SECTION 2.16 Insurance. There is in full force and effect certain policies
of insurance issued by insurers of recognized responsibility, including, without
limitation, fire and casualty insurance, insuring the Company and its
Subsidiaries and their properties against such losses and risks, and in such
amounts, as are usual and customary in the case of Companies engaged in the same
or similar business and similarly situated.
SECTION 2.17 Transaction Costs. The Company is not obligated for any
Transaction Costs relating to the transactions contemplated by this Agreement.
ARTICLE III
REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF THE INVESTOR
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The Investor represents and warrants to, and agrees with, the Company as
follows:
SECTION 3.1 Organization, Good Standing And Qualification. The Investor has
been duly formed and is validly existing as a limited partnership in good
standing under the laws of the State of Delaware. The Investor has all requisite
power and authority, and all necessary authorizations, approvals, orders,
licenses, certificates and permits, to own, lease and operate its properties and
to conduct its business as presently conducted and to enter into, execute,
deliver and perform all of its duties and obligations under this Agreement and
all related instruments and agreements executed in connection herewith. The
Investor is not in violation of any term of any agreement, instrument, judgment,
decree, order, statute, rule or government regulation applicable to the Investor
or to which the Investor is a party or to which its assets are subject which
would, in any individual instance, or in any series of related instances, have a
Material Adverse Effect.
SECTION 3.2 Authority. This Agreement, the Registration Rights Agreement
and all documents and instruments executed by the Investor pursuant hereto or in
connection with the transactions contemplated hereby are valid and binding
obligations of the Investor enforceable against the Investor in accordance with
their terms. The execution, delivery and performance of this Agreement, the
Registration Rights Agreement and all documents and instruments contemplated
hereby have been duly authorized by all necessary corporation or other action of
the Investor.
SECTION 3.3 Validity. This Agreement has been duly executed and delivered
by the Investor and is the lawful, valid and legally binding obligation of the
Investor, enforceable in accordance with its terms.
SECTION 3.4 Investment Representations.
(a) The Investor acknowledges that the offer and sale of the Note and
the Warrant have not been, nor will the shares of the Series H Preferred Stock
or the shares of Common Stock be, registered under the Securities Act, or the
securities laws of any state or regulatory body and are being offered and sold
in reliance upon exemptions from the registration requirements of the Securities
Act and such laws and may not be transferred or resold without registration
under such laws unless an exemption is available. The Note, the Warrant, and any
certificate for shares of Series H Preferred Stock and Common Stock will be
imprinted with a legend in substantially the following form:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR THE
SECURITIES LAWS OF ANY STATE AND MAY NOT BE SOLD, TRANSFERRED,
ASSIGNED, PLEDGED, HYPOTHECATED, OR OTHERWISE DISPOSED OF EXCEPT
PURSUANT TO A REGISTRATION STATEMENT WITH RESPECT TO SUCH SECURITIES
WHICH IS EFFECTIVE UNDER SUCH ACT AND UNDER ANY APPLICABLE STATE
SECURITIES LAWS UNLESS, IN THE OPINION OF COUNSEL REASONABLY
SATISFACTORY TO THE COMPANY, AN EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF SUCH ACT AND STATE SECURITIES LAWS IS AVAILABLE."
(b) The Investor is acquiring the Note (and the shares of the Series H
Preferred Stock issuable upon conversion thereof and the shares of Common Stock
issuable upon conversion of the Series H Preferred Stock) and the Warrant (and
the shares of Common Stock issuable upon exercise thereof), for investment and
not with a view to the resale or distribution thereof and is acquiring such
securities for its own account.
(c) The Investor is an "accredited investor" (as that term is defined
in Rule 501 of Regulation D promulgated under the Securities Act), is
sophisticated in financial matters and is familiar with the business of the
Company so that it is capable of evaluating the merits and risks of its
investment in the Company and has the capacity to protect its own interests. The
Investor has had the opportunity to investigate on its own the Company's
business, management and financial affairs and has had the opportunity to review
the Company's operations and facilities and to ask questions and obtain whatever
other information concerning the Company as the Investor has deemed relevant in
making its investment decision.
(d) The Investor owns 500 shares of the Series E Cumulative
Accelerating Redeemable Preferred Stock of the Company, and, in accordance with
its rights pertaining thereto, has designated a member of the Board of Directors
of the Company, Xxxx X. Xxxxxx.
ARTICLE IV
AFFIRMATIVE COVENANTS
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The Company covenants that so long as the Note or the Warrant is outstanding:
SECTION 4.1 Corporate Existence, etc. The Company will at all times
preserve and keep in full force and effect its corporate existence. The Company
will at all times preserve and keep in full force and effect the corporate
existence of each of its Subsidiaries (unless merged into the Company or one of
its Subsidiaries) and all rights and franchises of the Company and its
Subsidiaries unless, in the good faith judgment of the Company, the termination
of or failure to preserve and keep in full force and effect such corporate
existence, right or franchise could not, individually or in the aggregate, have
a Material Adverse Effect.
SECTION 4.2 Corporate Existence; Subsidiaries; Maintenance of Properties.
Each of the Company and its Subsidiaries will preserve and keep in full force
and effect its corporate existence, rights and franchises except for any
Subsidiary of the Company which is combined or merged with and into the Company.
The Company shall at all times own, directly or indirectly, the equity interest
in each Subsidiary except for any Subsidiary of the Company which is combined or
merged with and into the Company or another Subsidiary. Each of the Company and
its Subsidiaries will maintain all of its properties used or useful in the
conduct of its business in good condition, repair and working order (normal wear
and tear excepted) and cause to be made all necessary repairs, renewals,
replacements, betterments and improvements thereof, all as in the judgment of
the
Company may be necessary so that the business carried on in connection therewith
may be properly and advantageously conducted at all times; provided, however,
that nothing in this Section 4.2 shall prevent the Company or any of its
Subsidiaries from discontinuing the operation and maintenance of any of such
properties if such discontinuance is, in the judgment of the Company, desirable
in the conduct of such Person's business and does not cause a Material Adverse
Effect.
SECTION 4.3 Insurance. Each of the Company and its Subsidiaries will
maintain with financially sound and reputable insurance companies, funds or
underwriters, insurance of the kinds, covering the risks and in the relative
proportionate amounts usually carried by reasonable and prudent companies
conducting businesses similar to that of the Company and its Subsidiaries.
SECTION 4.4 Compliance with Law. The Company will and will cause each of
its Subsidiaries to comply with all laws, ordinances or governmental rules or
regulations to which each of them is subject and will obtain and maintain in
effect all licenses, certificates, permits, franchises and other governmental
authorizations necessary to the ownership of their respective properties or to
the conduct of their respective businesses, in each case to the extent necessary
to ensure that non-compliance with such laws, ordinances or governmental rules
or regulations or failures to obtain or maintain in effect such licenses,
certificates, permits, franchises and other governmental authorizations could
not, individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect.
SECTION 4.5 Taxes. The Company will and will cause each of its Subsidiaries
to file all tax returns required to be filed in any jurisdiction and to pay and
discharge all taxes shown to be due and payable on such returns and all other
taxes, assessments, governmental charges, or levies imposed on them or any of
their properties, assets, income or franchises, to the extent such taxes and
assessments have become due and payable and before they have become delinquent
and all claims for which sums have become due and payable that have or might
become a Lien on properties or assets of the Company or any such Subsidiary,
provided that neither the Company nor any such Subsidiary need pay any such tax
or assessment or claims if (i) the amount, applicability or validity thereof is
contested by the Company or such Subsidiary on a timely basis in good faith and
in appropriate proceedings, and the Company or such Subsidiary has established
adequate reserves therefor in accordance with GAAP on the books of the Company
or such Subsidiary or (ii) the nonpayment of all such taxes and assessments in
the aggregate could not reasonably be expected to have a Material Adverse
Effect.
SECTION 4.6 Inspection of Properties and Books. Within five (5) Business
Days of receiving notice (describing with reasonable particularity the books and
records to be reviewed), the Company and its Subsidiaries shall permit Investor
and its designated representatives to visit and inspect any of the properties of
the Company and its Subsidiaries, to examine the books of account of the Company
and its Subsidiaries (and to make copies thereof and extracts therefrom), and to
discuss the affairs, finances and accounts of each of the Company and its
Subsidiaries with, and to be advised as to the same by, officers or partners of
such Persons, during normal business hours, in a manner calculated not to
disrupt ongoing business activities and at such intervals as such Investor may
reasonably request.
ARTICLE V
DEFINITIONS
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As used herein, in addition to the terms defined elsewhere herein, the
following terms shall have the following meanings.
"Capital Stock" means, as to any Person that is a corporation, the
authorized shares of such Person's capital stock, including all classes of
common, preferred, voting and nonvoting capital stock, and, as to any Person
that is not a corporation or an individual, the ownership interests in such
Person, including, without limitation, the right to share in profits and losses,
the right to receive distributions of cash and property, and the right to
receive allocations of items of income, gain, loss, deduction and credit and
similar items from such Person, whether or not such interests include voting or
similar rights entitling the holder thereof to exercise control over such
Person.
"Certificate of Designation" means the Certificate of Designations,
Preferences and Rights of the Series H Cumulative Accelerating Redeemable
Preferred Stock of Oncure Technologies Corp., in the form attached hereto as
Exhibit C.
"Charter" means the articles or certificate of incorporation, statute,
constitution, joint venture or partnership agreement or articles or other
organizational document of any Person other than an individual, each as from
time to time amended or modified.
"Code" means the Internal Revenue Code of 1986, as amended.
"Exchange Act" means the Securities Exchange Act of 1934, as amended, or
any successor federal statute, and the rules and regulations of the Securities
and Exchange Commission thereunder, all as the same shall be in effect at the
time.
"Generally accepted accounting principles" or "GAAP" means accounting
principles which are (a) consistent with the principles promulgated or adopted
by the Financial Accounting Standards Board and its predecessors and other
recognized principle setting bodies, in effect from time to time, (b) applied on
a basis consistent with prior periods, and (c) such that a certified public
accountant would, insofar as the use of accounting principles is pertinent, be
in a position to base an opinion as to financial statements in which such
principles have been properly applied.
"Lien" means (a) any encumbrance, mortgage, pledge, lien, charge or other
security interest of any kind upon any property or assets of any character, or
upon the income or profits therefrom; (b) any acquisition of or agreement to
have an option to acquire any property or assets upon conditional sale or other
title retention agreement, device or arrangement (including a capitalized
lease); or (c) any sale, assignment, pledge or other transfer for security of
any accounts, general intangibles or chattel paper, with or without recourse.
"Person" means an individual, partnership, corporation, association, trust,
joint venture, unincorporated organization, and any government, governmental
department or agency or political subdivision thereof.
"Registration Rights Agreement" means the Registration Rights Agreement,
dated the date hereof, between the Company and the Investor, in the form
attached hereto as Exhibit D.
"Related Agreements" means the Note, the Warrant, the Registration Rights
Agreement, the Certificate of Designation and all other documents and
instruments executed by the Company pursuant to this Agreement or in connection
with the transactions contemplated by this Agreement.
"Securities Act" means the Securities Act of 1933, as amended, or any
successor federal statute, and the rules and regulations of the Securities and
Exchange Commission thereunder, all as the same shall be in effect at the time.
"Subsidiary" means any Person which the Company now or hereafter shall at
the time own, directly or indirectly through a subsidiary, at least a majority
of the outstanding capital stock (or other beneficial interest) entitled to vote
generally; and the term "Subsidiaries" means all of such Persons collectively.
"Taxes" means (A) all net income, gross income, gross receipts, sales, use,
ad valorem, transfer, franchise, profits, license, withholding, payroll,
employment, excise, severance, stamp, occupation, premium, property or windfall
profits taxes, or other taxes of any kind whatsoever, together with any interest
and any penalties, additions to tax or additional amounts imposed by any taxing
authority (domestic or foreign) upon the Company with respect to all periods or
portions thereof ending on or before the date hereof and/or (B) any liability of
the Company for the payment of any amounts of the type described in the
immediately preceding clause (A) as a result of being a member of an affiliated
or combined group.
"Transaction Costs" means any and all costs, fees and expenses of any
broker, finder or placement agent incurred by the Company in connection with the
transactions contemplated by this Agreement or any Related Agreement.
ARTICLE VI
MISCELLANEOUS
-------------
SECTION 6.1 Fees and Expenses. The Company will bear all of its own
expenses in connection with the preparation, negotiation and execution of this
Agreement and each of the Related Agreements, and will also reimburse the
Investor for, or pay, any reasonable, documented expenses it incurs, upon
submission of supporting documentation thereof and subject to Section 1.4(g)
hereof, in connection with the preparation, execution and negotiation of this
Agreement and Related Agreements.
SECTION 6.2 Survival. The representations, warranties, covenants and
agreements of the Company under or pursuant to this Agreement and each of the
Related Agreements shall survive the execution and delivery of this Agreement
and each of the Related Agreements and the Closing.
SECTION 6.3 Entire Agreement. This Agreement and any other agreement or
instrument to be delivered expressly pursuant to the terms hereof constitute the
entire Agreement between the parties hereto with respect to the subject matter
hereof and supersede all previous negotiations, commitments and writings with
respect to such subject matter.
SECTION 6.4 Assignments; Parties in Interest. Neither this Agreement nor
any of the rights, interests or obligations hereunder may be assigned by any of
the parties hereto (whether by operation of law or otherwise) without the prior
written consent of the other parties. This Agreement shall be binding upon and
inure solely to the benefit of each party hereto, and nothing herein, express or
implied, is intended to or shall confer upon any Person not a party hereto any
right, benefit or remedy of any nature whatsoever under or by reason hereof,
except as otherwise provided herein.
SECTION 6.5 Amendments.
(a) No failure or delay on the part of any of the parties hereto in
exercising any right, power or remedy hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise of any such right, power or
remedy preclude any other or further exercise thereof or the exercise of any
other right, power or remedy. The remedies provided for in this Agreement are
cumulative and are not exclusive of any remedies that may be available to the
parties hereto at law, in equity or otherwise.
(b) Any amendment, supplement or modification of or to any provision of
this Agreement, the Note or the Warrant, any waiver of any provision of this
Agreement, the Note or the Warrant and any consent to any departure by any party
from the terms of any provision of this Agreement, the Note or the Warrant shall
be effective only if it is made or given in writing and signed by the Company
and the Required Holders (as defined below); provided, however, that no such
amendment, supplement, modification or waiver may, without the written consent
of the Holder of each Note at the time outstanding affected thereby (A) change
the amount or time of any payment or prepayment of principal of, or reduce the
rate or change the time of payment or method of computation of interest on, the
Notes, (B) change the percentage of the principal amount of the Notes the
Holders of which are required to consent to any such amendment, supplement,
modification. Required Holders shall mean: (i) with respect to the Notes, at any
time, the holders of outstanding Notes representing at least a majority of the
aggregate principal amount of the Notes then outstanding, (ii) with respect to
the Warrants, at any time, the holders of outstanding Warrants representing at
least a majority of the aggregate Common Stock issuable upon exercise of such
Warrants, and (iii) with respect to this Agreement, in accordance with clause
(i), provided that the Notes are outstanding; otherwise, in accordance with
clause (ii).
(c) Any amendment or waiver consented to as provided in this Section
6.5 is binding upon each future holder of any Note or Warrant (as applicable)
and upon the Company without regard to whether such Note or Warrant has been
marked to indicate such amendment or waiver. No course of dealing between the
Company and any holder of a Note or Warrant nor any delay in exercising any
rights hereunder or under the Note or Warrant shall operate as a waiver of any
rights of any holder of such securities.
SECTION 6.6 Use of Proceeds. The Company will use the proceeds of the sale
of the Note and Warrant to (i) pay certain acquisition costs, fees and expenses
in connection with the Company's acquisition of the limited partnership interest
of HCA Health Services of Florida, Inc.
in Park South Radiation Oncology Center, Ltd., and (ii) pay any fees and
expenses in connection with (x) the issuance and sale of the Notes and the
Warrants and (y) any other transaction.
SECTION 6.7 Descriptive Headings. The descriptive headings of this
Agreement are inserted for convenience of reference only and do not constitute a
part of and shall not be utilized in interpreting this Agreement.
SECTION 6.8 Notices and Addresses. Any notice, demand, request, waiver, or
other communication under this Agreement shall be in writing and shall be deemed
to have been duly given on the date of service, if personally served or sent by
facsimile; on the business day after notice is delivered to a courier or mailed
by express mail, if sent by courier delivery service or express mail for next
day delivery; and on the third day after mailing, if mailed to the party to whom
notice is to be given, by first class mail, registered, return receipt
requested, postage prepaid and addressed as follows:
To Company: OnCure Technologies Corp.
0000 Xxxx Xxxxx Xxxx, Xxxxx 0
Xxxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxxx
Fax: (000) 000-0000
With a copy to:
Xxxxx X. Xxxxxxxxx, Esq.
Xxxxxxx Berlin Shereff Xxxxxxxx, LLP
The Chrysler Building
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Fax: (000) 000-0000
To Holder: Alpine Venture Capital Partners LP
Xxx Xxxxx Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxx Xxxx Xxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxx
Fax: (000) 000-0000
With a copy to:
Xxxxx X. Xxxxxxx, Esq.
Xxxxxxx & Xxxxxx, LLP
Xxx Xxxxx Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxx Xxxx Xxxxx, XX 00000
Fax: (000) 000-0000
SECTION 6.9 Severability. In the event that any provision of this Agreement
becomes or is declared by a court of competent jurisdiction to be illegal, void
or unenforceable, the remainder of this Agreement will continue in full force
and effect and the application of such provision to other Persons or
circumstances will be interpreted so as reasonably to effect the intent of the
parties hereto. The parties further agree to replace such void or unenforceable
provision of this Agreement with a valid and enforceable provision that will
achieve, to the extent possible, the economic, business and other purposes of
such void or unenforceable provision.
SECTION 6.10 Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Florida, regardless of the
laws that might otherwise govern under applicable principles of conflicts of
laws thereof. EACH PARTY HEREBY IRREVOCABLY CONSENTS TO THE JURISDICTION OF ANY
STATE OR FEDERAL COURT SITTING IN PALM BEACH COUNTY, FLORIDA IN ANY ACTION OR
PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT AND/OR ANY RELATED
AGREEMENT, AS WELL AS TO THE JURISDICTION OF ALL COURTS TO WHICH AN APPEAL MAY
BE TAKEN FROM SUCH COURTS.
SECTION 6.11 Counterparts; Facsimile Signatures. This Agreement may be
executed in one or more counterparts, all of which shall be considered one and
the same agreement and shall become effective when one or more counterparts have
been signed by each of the parties and delivered to the other party, it being
understood that all parties need not sign the same counterpart. This Agreement
may be executed by facsimile, and a facsimile signature shall have the same
force and affect as an original signature on this Agreement.
(signature page follows)
IN WITNESS WHEREOF, this Agreement has been duly executed on the date first
set forth above.
ONCURE TECHNOLOGIES CORP.
By: /s/ Xxxxxxx X. Xxxxxxx
-------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: President and Chief Executive Officer
ALPINE VENTURE CAPITAL PARTNERS LP
By: Alpine Venture Capital Corp., its general partner
By:
-------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Chief Executive Officer
