CONVERSION OF NOTES AND OPTION TO SELL STOCK
IN ONCURE TECHNOLOGIES CORP.
This Agreement (this "Agreement") is made to be effective as of May 10,
2001 ("Effective Date"), by and among OnCure Technologies Corp., a Florida
corporation (the "Corporation"), Xxxx X. Xxxxx, M.D. (the "Note Holder"), and
Continuum Capital Partners, Inc. ("Continuum").
RECITALS
A. The Corporation owns or controls entities which provide radiation
oncology treatments to cancer patients.
B. The Note Holder owns three promissory notes of the Corporation: the
note dated 6-10-99 in the original principal amount of $300,903.25 (principal
balance $300,903.25), the note dated 9-01-00 in the original principal amount of
$189,000.00 (approximate principal balance $143,171), and the note dated
12-18-98 in the original principal balance of $735,000.00 (approximate principal
balance $586,187) (hereinafter referred to collectively as the "Promissory
Note").
C. The Corporation owes the Note Holder certain additional expenses, as
shown on Exhibit A attached hereto and incorporated herein, in the amount of
$130,150.49 ("Expenses").
D. The Corporation and the Note Holder wish to convert the note dated
12-18-98 in the original principal balance of $735,000.00 and Expenses to one
cent par value common stock of the Corporation ("Converted Common Stock") at the
rate of $2.00 per share subject to the terms and conditions set forth in this
Agreement, including inter alia Note Holder's right to reinstate said Promissory
Note in the event certain conditions are not satisfied.
E. Note Holder wishes to grant and Continuum wishes to obtain an option
to call all of the Note Holder's Converted Common Stock at a price of $2.25 per
share, subject to the terms and conditions set forth in this Agreement.
AGREEMENT
NOW, THEREFORE, the parties hereto hereby agrees as follows:
1. CONVERSION. Note Holder agrees to convert the note dated 12-18-98 in
the original principal balance of $735,000.00 and Expenses
(approximately $716,338) to one cent par value common stock of the
Corporation ("Converted Common Stock") at the rate of $2.00 per share
(approximately 358,169 shares), subject to the conditions set forth in
this Agreement. The exact amount subject to conversion shall be
determined upon satisfaction of all conditions precedent to close of
escrow. Subject to review by the Note Holder's and the Corporation's
respective tax advisors, for purposes of tax reporting, the Corporation
shall issue its 1099 to Note Holder, for any portion of the Converted
Common Stock for
which a 1099 is due, at a value no greater than the market closing
price on the day of issuance of the Converted Common Stock, less a
fifty percent (50%) block discount.
2. ESCROW.
a. Note Holders' note dated 12/18/98 in the original principal
balance of $735,000.00 shall be deposited with the Escrow Agent,
along with this Agreement, pending exercise by Cotinuum of its
Call Option pursuant to this Agreement.
b. Interest only will be paid monthly on the remaining balance of the
note dated 12-18-98 in the original principal balance of
$735,000.00 at its stated rate and on the Expenses at nine (9)
percent per annum, and all other terms and conditions of the note
dated 12-18-98 in the original principal balance of $735,000.00
shall remain in effect until conversion and purchase pursuant to
Continuum's Call Option.
c. If Continuum does not exercise its Call Option on or before
November 10, 2002, then this Agreement shall terminate and Note
Holder's note dated 12-18-98 in the original principal balance of
$735,000.00 shall be returned to Note Holder. Notwithstanding the
failure by Continuum to exercise its Call Option, the Note
Holder's note dated 12-18-98 in the original principal balance of
$735,000.00, as well as the right to reimbursement for the
Expenses, shall remain in full force and effect.
d. Any portion of the note dated 12-18-98 in the original principal
balance of $735,000.00 and Expenses note converted and sold on or
before November 10, 2002 shall be immediately due and payable upon
sixty (60) days notice by Note Holder to the Corporation after
November 10, 2002.
e. For purposes of this Agreement, the Escrow Agent shall be Xxxx &
Associates Attorneys, 0000 Xxxxxxx Xxxxxx, Xxxxx 000, Xxxxxxx,
Xxxxxxxxxx 00000.
3. INTEREST PAYMENTS. From the Effective Date of this agreement, the
Corporation shall continue to pay monthly interest on the note dated
12-18-98 in the original principal balance of $735,000.00 and Expenses
and rents due to Note Holder in the normal course of business, provided
that all interest and rents shall be paid on the first of the month and
received no later than the tenth (10th) of the month. If any payment is
not received by the tent (10th) of the month, Note Holder may send a
letter by certified mail to the Corporation demanding the late
payment(s). If all late payments are not received within ten (10) days
of the date of the letter, the Corporation shall be deemed to be in
default. In such event, the total sum of principal and accrued interest
of the note dated 12-18-98 in the original principal balance of
$735,000.00 and Expenses shall become immediately due and payable at
the option of the Note Holder.
4. CASH CONSIDERATION. In consideration for this Agreement, on or before
the Effective Date the Corporation shall make a cash payment of
approximately $440,074.25 to pay in the full the unpaid principal
balance and all accrued unpaid
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interest owing on the note dated 6-10-99 in the original principal
amount of $300,903.25 (principal balance $300,903.25) and the note
dated 9-01-00 in the original principal amount of $189,000.00
(approximate principal balance $143,171). The Corporation shall be
deemed to be in default if the cash payment is not received within ten
(10) days of the Effective Date. If the payment is not received within
ten (10) days of the Effective Date, Note Holder may send a letter by
certified mail to the Corporation demanding the late payment. If the
late payment is not received within ten (10) days of the date of the
letter, the total sum of principal and accrued interest of the
Promissory Notes and Expenses shall become immediately due and payable
at the option of the Note Holder.
5. LOCK-UP. Note Holder agrees to execute a lock-up agreement with all
other officers and directors of the Corporation, at equal terms for all
officers and directors and no longer than the shortest lock-up period
applicable to any equity held by any other officer or director, as
negotiated by the Corporation's Securities counsel on behalf of the
officers and directors.
6. REGISTRATION. The Corporation agrees to grant piggy-back registration
rights on the Note Holder's Converted Common Shares issued in
conjunction with, and exercisable upon, Continuum's exercise of its
Call Option.
7. CALL. Upon the Effective Date, Continuum shall have the absolute right,
subject only to the provisions of the Florida General Corporation Law
and to any other applicable restrictions on the right of a shareholder
to sell its own shares, exercisable at any time on or before November
10, 2002, to purchase the substituted shares selected by Note Holder in
place of the Note Holder's Converted Common Shares, as provided inP. 8
herein, for $2.25 per share, subject to the conditions set forth in
this Agreement. The conversion of the Note Holder's note dated 12-18-98
in the original principal balance of $735,000.00 and Expenses shall
take place immediately prior to the purchase of the Note Holder's
shares by Continuum Capital Partners, or the prorata amount at the time
of such purchase as selected by Note Holder. Note Holder's shares will
be the first sold by Continuum Capital Partners at the price of $2.25
per share. In the event that Continuum has not exercised its Call
Option, or has not paid Note Holder in full for all Shares pursuant to
exercise of its Call Option, as of November 10, 2002, any remaining
portion of the note dated 12-18-98 in the original principal balance of
$735,000.00 and Expenses shall be immediately due and payable upon
sixty (60) days notice by Note Holder to the Corporation.
8. SHARES. Note Holder shall be allowed to substitute one cent par value
common stock of the Corporation currently held by him for the Converted
Common Shares called by Continuum pursuant to the Call Option granted
in this Agreement.
9. ASSIGNMENT. Neither this Agreement, nor any right or interest herein,
may be sold, assigned, or otherwise transferred, voluntarily or
involuntarily by the Note Holder, whether pursuant to any law governing
bankruptcy or insolvency or otherwise, except that, (a) for purposes
hereof, the personal representative
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(including a successor trustee to any trust described in clause (b)of
this paragraph) of a deceased Note Holder and the heirs of such
deceased Note Holder, whether by intestate succession or testamentary
instrument, shall be deemed a "Note Holder", and (b) Note Holder may
assign his rights under this Agreement to the trustee under a trust
described in Subpart E of Part 1 of Subchapter J of Subtitle A of the
Internal Revenue Code of 1986, as amended.
10. EXERCISE OF CALL OPTION. Continuum shall exercise its Call Option by
execution and tender to Note Holder of notice in the following form:
Notice is hereby given that the undersigned exercises its right to
call ________________ [number] shares in OnCure Technologies
Corp., in accordance with the terms of that Call Option granted to
it by Note Holder Xxxx X. Xxxxx in the CONVERSION OF NOTE AND
OPTION TO SELL STOCK IN ONCURE TECHNOLOGIES CORP. Agreement
effective May 10, 2001.
11. EXERCISE PRICE. Continuum shall purchase the shares for $2.25 per share
pursuant to its Call Option on or before November 10, 2002.
12. PAYMENT OF EXERCISE PRICE. Payment of the exercise price shall be made
within ten (10) business days following the exercise of the Call
Option.
13. EXPENSES. The Corporation shall bear one-half of the Note Holder's
legal expenses through April 13, 2001 (total legal expenses on this
matter through April 13, 2001 are $13,550.00) and all of the legal
expenses of the preparation of this Agreement by Xxxx & Associates
Attorneys. The Corporation shall pay its portion of the fees and costs
owing to Xxxx & Associates immediately upon execution of this Agreement
by all parties. The Corporation shall bear all commission and other
related expense of the sale or redemption of any of the Note Holder's
Converted Common Stock.
14. NOTICES. All notices and other communications given or made pursuant
hereto shall be in writing and shall be deemed duly given if (and then
two business days after) made in writing and sent by registered or
certified mail (postage prepaid, return receipt requested) to the
parties at the following addresses:
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To Note Holder: Xxxx X. Xxxxx, M.D.
00 Xxxxxxxx Xxx.
Xxxxxxxx, XX 00000
Telephone: 0-000-000-0000
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With a copy to: Xxxxxx X. Xxxx, Esq.
Xxxx & Associates Attorneys
0000 Xxxxxxx Xx., Xxxxx 000
Xxxxxxx, XX 00000
Telephone: 000-000-0000
Telecopy: 000-000-0000
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To OnCure: 000 Xxxxxxx Xxxxxx Xxxx, Xxxxx 000
Xxxxxx Xxxxx, XX 00000
Telephone: 000-000-0000
Telecopy: 000-000-0000
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With a copy to: Xxxxxx X. Xxxxxxxx, Esq.
Crabtree, Schmidt, Xxxx & Xxxxxx
0000 00xx Xxxxxx, Xxxxxx Xxxxx
Xxxxxxx, XX 00000
Telephone: 000-000-0000
Telecopy: 000-000-0000
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To Continuum: Continuum Capital Partners
Attention: Xxxxxx XxXxxx
00000 Xxxxxxxx Xxxxxxx
Xxxxxxx Xxxxx, Xxxxxxx 00000
Telephone: 000-000-0000
Telecopy: 000-000-0000
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or to such other persons or at such other addresses as shall be
furnished by any party by like notice to the others. Any party may give
notice and other communications hereunder using any means (including
personal delivery, expedited courier, messenger service, telecopy,
telex, or ordinary mail) but no such communication shall be deemed to
have been duly given unless and until it actually is received by the
individual for whom it was intended.
15. OTHER DOCUMENTS. Each of the parties to this Amendment agrees to
execute and deliver, at the request of the other parties, any and all
other documents or other written instruments as may be reasonably
necessary to effectuate the purposes of this Agreement.
16. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which may be executed by less than all of the
parties, each of which shall be enforceable against the parties
actually executing such counterparts, and all of which together shall
constitute one instrument.
17. ENTIRE AGREEMENT. This instrument constitutes the entire agreement
between the parties relating to the Conversion of the Promissory Notes
and Expenses and the Call Option. Any prior agreements, promises,
negotiations, or representations not expressly set forth in this
Agreement are of no force or effect. Any amendment to this Agreement
shall be of no force and effect unless it is in writing and signed by
all parties.
18. ARBITRATION. Any dispute between the parties arising out of this
Agreement shall be submitted to final and binding arbitration in Contra
Costa County, California,
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under the Commercial Arbitration Rules of the American Arbitration
Association then in effect, upon written notification and demand of
either party therefor. In the even either party demands such
arbitration, the American Arbitration Association shall be requested to
submit a list of prospective arbitrators consisting of persons
experienced in matters involving general business contracts. In making
the award, the arbitrator shall award recovery of costs and expenses of
the arbitration and reasonable attorneys' fees to the prevailing party.
Any award may be entered as a judgment in any court of competent
jurisdiction. Should judicial proceedings be commenced to enforce or
carry out this provision or any arbitration award, the prevailing party
in such proceedings shall be entitled to reasonable attorneys' fees and
costs in addition to other relief. Either party shall have the right,
prior to receiving an arbitration award, to obtain preliminary relief
from a court of competent jurisdiction to (a) avoid injury or prejudice
to that party; or (b) to protect the rights of any party. The parties
agree that venue for any judicial proceeding respecting or arising out
of this Agreement shall be in Contra Costa County, California.
19. GOVERNING LAW. The terms of this Agreement shall be governed by the
laws of the State of Florida, without reference to any provisions for
choice of law.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date and year first above written.
THE CORPORATION THE NOTE HOLDER
OnCure Technologies Corp.
a Florida corporation /s/ Xxxx X. Xxxxx
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Xxxx X. Xxxxx, M.D.
By: /s/ Xxxxxxx X. Xxxxxxx
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Xxxxxxx X. Xxxxxxx,
Chief Executive Officer
CONTINUUM
Continuum Capital Partners
By: /s/ Xxxxxx XxXxxx
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Xxxxxx XxXxxx,
Managing Partner
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