EXHIBIT 10.3
AGREEMENT
THIS AGREEMENT, dated as of March 31, 2003, by and between Continucare
Corporation (the "Company"), a Florida corporation, and Carret & Company
("Carret").
WITNESSETH
WHEREAS, the Company and Xxxxxxx Xxxxx Business Financial Services
Inc. ("Lender") have agreed to amend that certain WCMA Loan and Security
Agreement, dated as of March 9, 2000, to, among other things, extend the
maturity date of the loan from March 31, 2003 (the "Loan");
WHEREAS, Xxxxxxx Xxxxx, M.D. ("Frost") personally guaranteed the Loan
in March 2000, however, such guarantee will expire on March 31, 2003;
WHEREAS, as an inducement to, and as a condition precedent to the
Lender agreeing to extend the maturity date of the Loan, the Lender requires
that Frost execute and deliver a personal guarantee, whereby Frost shall
continue to guarantee the payment when due and performance of the Loan (the
"Guarantee");
WHEREAS, Frost has agreed to deliver the Guarantee in consideration of
the Company issuing to an entity affiliated with Frost 1,500,000 shares of
common stock and increase the interest rate of that certain convertible
promissory note in the principal amount of $797,162, dated July 31, 2001 (the
"Frost Note"), from 7% per annum to 9% per annum.
WHEREAS, if the maturity date of the Loan is not extended, the Company
will be in default of the Loan;
WHEREAS, the Company has considered various alternatives to deal with
the Loan, including, among other things, obtaining additional third-party
financing; however, due to the Company's current cash flow issues, the Company
has not been able to secure additional financing;
WHEREAS, the Company is an obligor under a series of convertible
promissory notes, dated June 30, 2001, in the aggregate principal amount of
$3,407,926.84 payable to entities (collectively the "Pecks Entities")
affiliated with Pecks Management Partners, Ltd. (collectively the "Pecks
Notes");
WHEREAS, the Company is an obligor under a convertible promissory
note, dated June 30, 2001, in the principal amount of $504,878.05 payable to
Carret (the "Carret Note");
WHEREAS, the Pecks Entities and Carret have agreed to extend the
maturity dates under the Pecks Notes and Carret Note to October 31, 2006, and
to defer the due dates for and make changes to the annual principal
installments under the Pecks Notes and Carret Note, in consideration of
increasing the interest rate on the last installment of the Pecks Notes and
Carret Note from 7% to 9% and issuing 300,000 and 44,400 shares of the
Company's common stock to the Pecks Entities and Carret, respectively;
WHEREAS, upon due consideration and discussions regarding these
issues, and exploring the costs and benefits and availability (or lack thereof)
of other alternatives, the Board of Directors believes that it is in the best
interest of the Company and its shareholders to enter into this Agreement.
NOW, THEREFORE, in consideration of the foregoing, the mutual
covenants and agreement set forth, and other good and valuable consideration,
the receipt of which is hereby acknowledged, the parties hereto agree as
follows:
SECTION 1. ISSUANCE OF SHARES
1.1 Description of Transaction. In exchange for Carret's
agreement to amend the Carret Note, in the form attached hereto as Exhibit A
(the "Carret Note Amendment"), the Company agrees to issue to Carret 44,400
shares of the Company's common stock (the "Shares").
1.2 Closing. The closing (the "Closing") of this transaction
shall be effective on March 31, 2003 (the "Effective Date"). On the Closing,
the following documents shall be delivered: (i) the Company shall direct its
transfer agent to deliver stock certificates to Carret representing 44,400
shares of the Company's Common Stock, and (ii) the Company shall deliver to
Carret the Carret Note Amendment.
SECTION 2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company hereby represents and warrants to Carret the following:
2.1 Authorization and Non-Contravention. This Agreement is a
valid and binding obligation of the Company, enforceable against the Company in
accordance with its terms, except as such enforceability may be limited by
bankruptcy laws and general principles of equity. The execution, delivery and
performance of this Agreement and the issuance of the Shares, have been duly
authorized by all necessary action of the Company.
SECTION 3. REPRESENTATIONS AND WARRANTIES OF CARRET
Carret hereby represents and warrants to the Company the following:
3.1 Authorization and Non-Contravention. This Agreement is a
valid and binding obligation of Carret, enforceable against Carret in
accordance with its terms, except as such enforceability may be limited by
bankruptcy laws and general principles of equity.
3.2 Investment Representations.
(a) Carret is acquiring the Shares for its own account,
for investment. Carret has had access to all information deemed material with
respect to an acquisition of the Shares.
(b) Carret understands and acknowledges that the Shares
have not been registered under the Securities Act, or the securities laws of
any state or foreign jurisdiction and, unless so registered, may not be
offered, sold, transferred, or otherwise disposed of except
pursuant to an exemption from, or in a transaction not subject to, the
registration requirements of the Securities Act and any applicable securities
laws of any state or foreign jurisdiction.
(c) Carret understands that the Shares issued pursuant
to this Agreement will be in unregistered form only and that any certificates
delivered to it in respect of the Securities will bear a legend substantially
to the following effect:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT"), OR ANY STATE SECURITIES LAW, AND SUCH SECURITIES
MAY NOT BE OFFERED, SOLD, TRANSFERRED, PLEDGED, HYPOTHECATED, OR
OTHERWISE DISPOSED OF EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT OR PURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION NOT
SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND
APPLICABLE STATE SECURITIES LAWS.
SECTION 4. GENERAL
4.1 Amendments, Waivers and Consents. No failure or delay on the
part of any party hereto in exercising any right, power or remedy hereunder
shall operate as a waiver thereof. The remedies provided for herein are
cumulative and are not exclusive of any remedies that may be available to any
party hereto at law or in equity or otherwise. This Agreement may be amended
only with the prior written consent of the Company and Carret.
4.2 Governing Law. This Agreement shall be deemed to be a
contract made under, and shall be construed in accordance with, the laws of the
State of Florida, without giving effect to conflicts of laws principles
thereof.
4.3 Section Headings. The descriptive headings in this Agreement
have been inserted for convenience only and shall not be deemed to limit or
otherwise affect the construction of any provision thereof or hereof.
4.4 Counterparts. This Agreement may be executed simultaneously
in any number of counterparts, each of which when so executed and delivered
shall be taken to be an original; but such counterparts shall together
constitute but one and the same document.
4.5 Notices and Demands. Any notice or demand which is required
or provided to be given under this Agreement shall be deemed to have been
sufficiently given and received for all purposes when received and may be
delivered by hand, telecopy, telex or other method of facsimile, certified or
registered mail, postage and charges prepaid, return receipt requested, or by
overnight delivery.
4.6 Severability. Each provision of this Agreement shall be
interpreted in such a manner as to be effective and valid under applicable law,
but if any provision of this Agreement shall be deemed prohibited or invalid
under such applicable law, such provision shall be
ineffective only to the extent of such prohibition or invalidity, and such
prohibition or invalidity shall not invalidate the remainder of such provision
or the other provisions of this Agreement.
4.7 Integration. This Agreement, including the exhibits,
documents and instruments referred to herein or therein, constitutes the entire
agreement, and supersedes all other prior agreements and understandings, both
written and oral, among the parties with respect to the subject matter hereof,
including, without limitation, the letter of intent between the parties hereto
in respect of the transactions contemplated herein.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
effective on the date first written above.
CARRET & COMPANY
By: /s/ Xxxxxxx X. Xxxxxxxx
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Name: Xxxxxxx X. Xxxxxxxx
Title:
CONTINUCARE CORPORATION
By: /s/ Xxxxxxx X. Xxxxx
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Xxxxxxx X. Xxxxx, President
EXHIBIT A
CARRET NOTE AMENDMENT
