SUBSCRIPTION AGREEMENT
----------------------
THIS SUBSCRIPTION AGREEMENT (this "Agreement"), dated as of December 6,
2002, by and between ONCURE TECHNOLOGIES CORP., a Florida corporation (the
"Company"), and Xxxxxxx X. Xxxxxxxx (the "Subscriber").
WHEREAS, the Subscriber desires to purchase from the Company, and the
Company desires to issue and sell to Subscriber 35 shares of the Company's
Series H Cumulative Accelerating Redeemable Preferred Stock, par value $.001 per
share (the "Series H Stock"), subject to and in accordance with the terms and
conditions set forth herein.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto agree as
follows:
SECTION 1
SUBSCRIPTION FOR SHARES
-----------------------
1.1 Subscription Agreement. Subject to the terms and conditions of this
Agreement, the Subscriber hereby irrevocably subscribes for 35 shares (the
"Subscription Shares") of Series H Stock to be issued by the Company in
accordance with the terms hereof, at a purchase price of $2,000 per share, for a
total purchase price of $ 70,000 (the "Subscription Share Price"). The
Subscription Share Price shall be paid by check payable to the order of the
Company, or in such other manner as the Company in its discretion may deem
acceptable. Delivery by the Company of the Subscription Shares to the Subscriber
shall constitute the Company's acknowledgment that it has received the
Subscription Share Price in full.
SECTION 2
REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF SUBSCRIBER
--------------------------------------------------------
2.1 Subscriber Representations
(a) The Subscriber is acquiring the Subscription Shares (and the shares
of the Company's common stock, $.001 par value per share (the "Common Stock"),
issuable upon conversion thereof) for its own account for investment and not
with a view to, or for sale in connection with, any public distribution thereof
in violation of the Securities Act of 1933, as amended ("Securities Act"). The
Subscriber understands that none of the Subscription Shares have been (nor will
the shares Common Stock issuable upon conversion thereof be) registered for sale
under the Securities Act, or the securities or similar laws of any foreign,
state or other jurisdiction, or qualified under applicable state securities laws
and that the Subscription Shares are being offered and sold to the Subscriber in
reliance on exemptions therefrom based, in part, upon the representations,
warranties, covenants and agreements of the Subscriber contained in this
Agreement. The Subscriber understands that it must bear the economic risk of its
investment in the Company for an indefinite period of time, as the Subscriber
cannot sell the Subscription Shares (or the shares of the Common Stock issuable
upon conversion thereof) unless they are subsequently registered under the
Securities Act and qualified under state securities laws, or unless an exemption
from such registration and qualification is available.
(b) The Subscriber has carefully read and fully considered all
disclosures contained in the Company's Annual Report on Form 10KSB for the year
ended December 31, 2001 and all reports filed under the Securities Exchange Act
of 1934, as amended, since then as provided upon request by the Company or
available on the U.S. Securities and Exchange Commission XXXXX database at
xxx.xxx.xxx. The Subscriber understands that an investment in the Subscription
Shares (and the shares of Common Stock issuable upon conversion thereof) is a
speculative investment with a high degree of risk of loss, and there are
substantial restrictions on the transferability of the Subscription Shares (and
the shares of Common Stock issuable upon conversion of thereof).
(c) The Subscriber acknowledges that only a limited public market for
the securities of the Company, including the Subscription Shares, presently
exists. The Subscriber acknowledges that a legend will be placed on the
certificates representing the Subscription Shares (and the shares of Common
Stock issuable upon conversion thereof) that will restrict the transferability
of such Subscription Shares (and the shares of Common Stock issuable upon
conversion thereof). The Subscriber recognizes that the Company is a speculative
venture involving significant financial risk, and the Subscriber can bear the
economic risk of losing the Subscriber's entire investment in the Subscription.
The Subscriber's overall commitment to investments which are not readily
marketable is not disproportionate to the Subscriber's net worth and an
investment in the Subscription Shares will not cause the Subscriber's overall
commitment to become excessive. The Subscriber is familiar with the nature of,
and risks attendant to, investments in securities of the type being subscribed
for and has determined that the purchase of Subscription Shares is consistent
with the Subscriber's investment objectives.
(d) The Subscriber and its advisors, if any, are satisfied that the
Subscriber has received adequate information with respect to all matters which
it or its advisors, if any, consider material to the Subscriber's decision to
make this investment in the Subscription Shares. The Subscriber has the
requisite knowledge and experience in financial, tax and business matters and,
in particular, investments in securities, to evaluate the merits and risks of
this investment to make an informed investment decision with respect thereto and
to protect the Subscriber's interests in connection with this transaction.
(e) The transactions contemplated by this Agreement are not part of a
plan or scheme on the part of the Subscriber, any of its affiliates or any
person acting on its or their behalf to evade the registration requirements of
the Securities Act. The Subscriber confirms that the Subscription Shares were
not offered to the Subscriber by any means of general solicitation or general
advertising, including, without limitation, any article, notice, advertisement
or other communication published in any newspaper, magazine or similar media or
broadcast over television or radio.
(f) The undersigned meets the requirements of at least one of the
suitability standards for an "accredited investor," as such term is defined in
Regulation D of the Rules and Regulations promulgated under the Securities Act.
(g) The undersigned is a director of the Company and is intimately
familiar with the financial position of the Company as well as all matters
pertaining to the operations and prospects of the Company.
2
(h) No representations or warranties have been made to the undersigned
by the Company or by any agent, employee, or affiliate of the Company, and in
entering into this transaction the undersigned is not relying upon any
information, other than the results of independent investigation by the
undersigned.
(i) The undersigned has carefully reviewed the jurisdictional notices
listed below and agrees to abide by any restrictions contained therein
applicable to the undersigned.
2.2 Transfer of Securities. The Subscriber will resell or otherwise
dispose of the Subscription Shares (and the shares of Common Stock issuable upon
conversion thereof) only pursuant to registration under the Securities Act or
pursuant to an available exemption from registration. Such Subscriber consents
that any transfer agent of the Company may be instructed not to transfer any
Subscription Shares (or shares of Common Stock issuable upon conversion of
thereof) unless it receives satisfactory evidence of compliance with the
foregoing provisions, and that there may be endorsed upon any certificate
representing such Subscription Shares (and the shares of Common Stock issuable
upon conversion thereof), and any certificates issued in substitution therefor,
the following legend calling attention to the foregoing restrictions on
transferability of such Subscription Shares (and the shares of Common Stock
issuable upon conversion thereof ), stating in substance:
"THE SHARES OF STOCK REPRESENTED BY THIS CERTIFICATE HAVE NOT
BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES
ACT"), OR ANY STATE SECURITIES LAWS. THE SALE OR OTHER
DISPOSITION OF THESE SHARES IS RESTRICTED AND IN ANY EVENT IS
PROHIBITED EXCEPT PURSUANT TO (i) AN EFFECTIVE REGISTRATION
STATEMENT; OR (ii) AN AVAILABLE EXEMPTION FROM REGISTRATION
UNDER THE ACT. THE HOLDER OF THIS CERTIFICATE SHALL HAVE
DELIVERED TO ONCURE TECHNOLOGIES CORP. ("ONCURE") AN OPINION
OF COUNSEL, WHICH OPINION IS SATISFACTORY TO ONCURE AND ITS
COUNSEL, THAT SUCH SALE OR OTHER DISPOSITION CAN BE MADE
WITHOUT REGISTRATION UNDER THE SECURITIES ACT AND ANY STATE
SECURITIES LAWS."
The Company shall, upon the request of any holder of a stock certificate bearing
the foregoing legend and the surrender of such certificate, issue a new stock
certificate without such legend if (A) the stock evidenced by such certificate
has been effectively registered under the Securities Act and qualified under any
applicable state securities law and sold by the holder thereof in accordance
with such registration and qualification, or (B) such holder shall have
delivered to the Company a legal opinion reasonably satisfactory to the Company
to the effect that the restrictions set forth herein are no longer required or
necessary under the Securities Act or any applicable state law.
3
2.3 Enforceability. The Subscriber has all requisite power and
authority to execute, deliver, and perform this Agreement. All actions on the
part of the Subscriber necessary for the authorization, execution, delivery and
performance by such Subscriber of this Agreement have been taken. This Agreement
has been duly authorized, executed and delivered by the Subscriber, is the
legal, valid and binding obligations of the Subscriber, and is enforceable
against the Subscriber in accordance with its terms, except as may be limited by
applicable bankruptcy, reorganization, insolvency, moratorium or other similar
laws or by legal or equitable principles relating to or limiting creditors'
rights generally or as rights to indemnification may be limited by applicable
securities laws.
SECTION 3
JURISDICTIONAL NOTICES
----------------------
3.1 Notices for Residents of All States. THE SUBSCRIPTION SHARES
OFFERED HEREBY HAVE NOT BEEN (NOR WILL THE SHARES COMMON STOCK ISSUABLE UPON
CONVERSION THEREOF BE) REGISTERED UNDER THE SECURITIES ACT OF 1933 OR THE
SECURITIES LAWS OF ANY STATES OF THE UNITED STATES OR ANY OTHER JURISDICTION AND
ARE BEING OFFERED AND SOLD IN RELIANCE UPON EXEMPTIONS FROM THE REGISTRATION
REQUIREMENTS OF SAID ACT AND SUCH LAWS. THE SUBSCRIPTION SHARES (AND THE SHARES
OF COMMON STOCK ISSUABLE UPON CONVERSION THEREOF) ARE SUBJECT TO RESTRICTIONS ON
TRANSFERABILITY AND RESALE AND MAY NOT BE TRANSFERRED OR RESOLD EXCEPT AS
PERMITTED UNDER SAID ACT AND SUCH LAWS PURSUANT TO REGISTRATION OR EXEMPTION
THEREFROM. THE SUBSCRIPTION SHARES (AND THE SHARES COMMON STOCK ISSUABLE UPON
CONVERSION THEREOF) HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE UNITED STATES
SECURITIES AND EXCHANGE COMMISSION, ANY STATE SECURITIES COMMISSION OR ANY OTHER
REGULATORY AUTHORITY; NOR HAVE ANY OF THE FOREGOING AUTHORITIES PASSED UPON OR
ENDORSED THE MERITS OF THIS OFFERING OR THE ACCURACY OR ADEQUACY OF ANY
MATERIALS FURNISHED TO ANY SUBSCRIBER. ANY REPRESENTATION OF THE CONTRARY IS A
CRIMINAL OFFENSE.
SECTION 4
MISCELLANEOUS
-------------
4.1 Successors and Assigns. The Subscriber may not assign its rights or
obligation hereunder to a third party. The Company may not sell, assign,
transfer or otherwise convey any of its rights or delegate any of its duties
under this Agreement, except to a corporation which has succeeded to
substantially all of the business and assets of the Company and has assumed in
writing its obligations under this Agreement. This Agreement shall be binding
upon, inure to the benefit of, and be enforceable by, the parties and their
successors and permitted assigns.
4.2 Amendments and Waivers. Neither this Agreement nor any term hereof
may be changed or waived (either generally or in a particular instance and
either retroactively or prospectively) absent the written consent each party
hereto.
4
4.3 Survival of Representations, Etc. The representations, warranties,
covenants and agreements made herein or in any certificate or document executed
in connection herewith shall survive the execution and delivery of this
Agreement and the issuance and delivery of the Subscription Shares to the
Subscriber.
4.4 Acknowledgment Of Use of Representations and Warranties. The
representations, warranties and undertakings contained in this Subscription
Agreement made by the Subscriber are made with the intent that they may be
relied upon in determining its suitability as an investor in the Company. The
Subscriber hereby agrees that such representations, warranties and undertakings
shall survive the acceptance by the Company of this Subscription. By executing
this Agreement, the Subscriber represents that it has read and acknowledged the
representations contained herein.
4.5 Indemnification. The Subscriber acknowledges that the Subscriber
understands the meaning of the legal consequences of the representations,
acknowledgments and warranties contained herein, and the Subscriber hereby
agrees to indemnify and hold harmless the Company and its officers, directors,
attorneys and representatives, against any and all loss, claim, action, damage
and/or liability, including costs and reasonable attorneys fees, due to or
arising out of a breach of any representation, warranty undertaking or
acknowledgment of the Subscriber contained in this Subscription Agreement.
4.6 Entire Agreement. This Agreement constitutes 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.
4.7 Headings. All article and section headings herein are inserted for
convenience only and shall not modify or affect the construction or
interpretation of any provision of this Agreement.
4.8 Counterparts; Governing Law. This Agreement may be executed in any
number of counterparts, each of which shall be deemed an original but all of
which together shall constitute one and the same instrument. This Agreement
shall be governed by, and construed in accordance with, the laws of the State of
Florida, without giving effect to the conflict of laws principles thereof.
4.9 Gender. Unless the context otherwise requires, all personal
pronouns used in this Agreement, whether in the masculine, feminine or neuter
gender, shall include all other genders.
4.10 Further Actions. At any time and from time to time, each party
agrees, without further consideration, to take such actions and to execute and
deliver such documents as may be reasonably necessary to effectuate the purposes
of this Agreement.
IN WITNESS WHEREOF, the Subscriber has executed this Agreement this 6th
day of December, 2002.
5
NAME OF SUBSCRIBER (print or type)
Xxxxxxx X. Xxxxxxxx
/s/ Xxxxxxx X. Xxxxxxxx ____________________________________
Authorized Signature of Subscriber-
Position
Address: 0000 Xxxxxx Xxxx
Xxxx Xxxxxx, XX 00000
Phone No. _______________________________________________________
Fax No. _________________________________________________________
Employer Tax I.D. No. _____________________________________________
Jurisdiction of Organization _________________________________________
OnCure Technologies Corp. hereby accepts the foregoing Subscription subject to
the terms and conditions hereof as of the 6th day of December, 2002.
ONCURE TECHNOLOGIES CORP.
By: /s/ Xxxxxxx X. Xxxxxxx
Name: Xxxxxxx X. Xxxxxxx
Title: President and Chief Executive Officer
6
