OPTION TO PURCHASE AGREEMENT
This OPTION TO PURCHASE AGREEMENT (this "AGREEMENT") is effective as of
the 30th day of June 2002 (the "EFFECTIVE DATE"), by and between U.S. CANCER
CARE, INC., a Delaware corporation (together with its Affiliates (defined
herein), successors, and assigns, collectively "USCC"), and DVI FINANCIAL
SERVICES INC., a Delaware corporation (together with its Affiliates, successors,
and assigns, collectively "DVI").
WITNESSETH:
WHEREAS, USCC owns of record and beneficially 100% of the issued and
outstanding membership interest (the "CCA STOCK") in Corpus Christi Acquisition,
LLC, a Delaware limited liability company ("CCA"), an oncology medical services
provider;
WHEREAS, DVI is the beneficial owner of 1,786,313 shares of common
stock of OnCure Technologies Corp., a Florida corporation ("ONCURE");
WHEREAS, DVI desires to obtain from USCC an irrevocable option to
purchase all of the CCA Stock (the "OPTION"), and USCC desires to grant DVI the
Option in exchange for 837,758 shares of OnCure common stock (the "SHARES");
WHEREAS, it is currently contemplated that Dolphin Medical, Inc., a
Delaware corporation (together with its Affiliates, collectively, "DOLPHIN")
shall purchase 100% of the legal and beneficial interest in and to the CCA
Stock; and
WHEREAS, DVI agrees to use all commercially reasonable efforts
necessary to cause Dolphin to enter into an agreement on or before October 31,
2002, whereby: (i) Dolphin would (x) acquire the CCA Stock, and (y) assume all
of the Indebtedness (defined below) of CCA, and all of the Indebtedness of USCC
in the form of trade payables and other commercially reasonable business
operating expenses associated with the operation of CCA (hereinafter the "USCC
ADDITIONAL DEBT"); and (ii) DVI would forgive, release, discharge and cancel all
of the USCC Indebtedness (defined below) (clauses (i) and (ii) are hereinafter
referred to collectively as, the "ACQUISITION").
NOW, THEREFORE, in consideration of the foregoing and for other good
and valuable consideration the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. Definitions. As used herein, in addition to the terms defined
elsewhere herein, the following terms have the following meanings:
"AFFILIATE" means a Person that directly, or indirectly through one or
more intermediaries, controls, or is controlled by, or is under common control
with, a specified Person. The term "control" means the possession, directly or
indirectly, of the power to direct or cause the direction of the management and
policies of a Person, whether through ownership of capital stock, by contract or
otherwise.
"INDEBTEDNESS" means all obligations, contingent and otherwise, which
in accordance with GAAP should be classified on the obligor's balance sheet as
liabilities, or to which reference should be made by footnotes thereto,
including without limitation, in any event and whether or not so classified: (i)
all debt and similar monetary obligations, whether direct or indirect; (ii) all
liabilities secured by any mortgage, pledge, security interest, lien, charge or
other encumbrance existing on property owned or acquired subject thereto,
whether or not the liability secured thereby shall have been assumed; (iii) all
guaranties, endorsements and other contingent obligations whether direct or
indirect in respect of Indebtedness or performance of others, including any
obligation to supply funds to or in any manner to invest in, directly or
indirectly, the debtor, to purchase Indebtedness, or to assure the owner of
Indebtedness against loss, through an agreement to purchase goods, supplies or
services for the purpose of enabling the debtor to make payment of the
Indebtedness held by such owner or otherwise, and (iv) obligations to reimburse
issuers of any letters of credit.
"USCC INDEBTEDNESS" means any Indebtedness of USCC relating to CCA for
borrowed money owed to DVI, or any guarantee or surety of any such Indebtedness
by any USCC entity on or before the consummation of the Acquisition, including,
without limitation, the Indebtedness evidenced by the agreements set forth on
EXHIBIT A hereto.
"PERSON" means any corporation, partnership, firm, joint venture,
individual, association, trust, unincorporated organization or other entity.
2. Incorporation. The recitals set forth under the "WITNESSETH"
clause above incorporated herein by this reference are true, complete and
accurate to the best knowledge of the undersigned.
3. Grant of Option and Purchase Price. Subject to all of the terms and
conditions set forth herein, at the Closing (as defined below) USCC shall grant
to DVI, and DVI shall purchase from USCC, the Option as provided herein. The
purchase price for the Option shall be the Shares (the "OPTION PURCHASE PRICE").
4. Term of Option and Exercise Price. DVI may exercise the Option at
any time prior to the earlier of: (i) November 1, 2002, or (ii) the consummation
of the Acquisition (the "EXERCISE PERIOD"). The purchase price for the CCA Stock
upon exercise of the Option (the "EXERCISE PRICE") shall be One 00/100 ($1.00)
Dollar, together with the release, discharge and cancellation of the USCC
Indebtedness by DVI, and the assumption by Dolphin of all of the Indebtedness of
CCA and all of the USCC Additional Debt.
5. Procedure to Exercise Option. DVI shall evidence the exercise of the
Option by providing notice in writing to CCA and USCC of its intention to
exercise the Option at least three (3) business days prior to the exercise date
(the "EXERCISE NOTICE"). Upon sending the Exercise Notice in accordance with
Section 11 herein, and upon receipt of the Exercise Price (which shall
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consist of any reasonably requested document by USCC necessary to evidence the
Exercise Price), USCC shall transfer all of its CCA Stock to DVI. In the event
that CCA has issued or is required to issue certificates as evidence of an
equity holder's ownership interest in and to CCA, USCC shall cause to be
delivered to DVI within three (3) business days of the Exercise Notice, such
original certificates bearing DVI's name, or any other evidence necessary to
reflect DVI's ownership interest in the CCA Stock.
6. Closing and Deliveries at the Closing. The closing of the grant and
purchase of the Option (the "CLOSING") shall occur upon the execution and
delivery of this Agreement. At the Closing, or within seven (7) business days
thereafter, DVI shall deliver to USCC, the original stock certificates issued by
OnCure representing the Option Purchase Price duly endorsed for transfer or
accompanied by duly executed stock powers, free and clear of any claim, lien,
pledge, option, charge, easement, security interest, deed of trust, mortgage,
encumbrance or other right of third parties, whether voluntarily incurred or
arising by operation of law.
7. Validly Issued CCA Stock. The CCA Stock that shall be delivered to
DVI upon the exercise of the Option, assuming the Exercise Price is delivered to
USCC, shall be duly authorized and validly issued, fully paid and nonassessable,
free and clear of any mortgage, pledge, lien, security interest or other
hypothecation, charge, claim, set off, assessment, or encumbrance (other than
any created by DVI, including, without limitation, pursuant to that certain
Securities Pledge Agreement, dated March 15, 1999, by and between USCC and DVI).
8. Representations and Warranties of USCC.
USCC represents and warrants to DVI that it is a corporation duly
organized, validly existing, and in good standing under the laws of the State of
its incorporation, and has all necessary corporate power and authority to enter
into and perform its obligations under this Agreement and any other document
related hereto, and has been duly authorized by all requisite corporate action
by USCC. This Agreement has been duly and validly executed and delivered by USCC
and constitutes the legal, valid and binding obligation of USCC in accordance
with its terms.
USCC represents and warrants to DVI that it is the sole and lawful
owner of record of the CCA Stock and further represents and warrants that during
the Exercise Period USCC shall not, either directly or indirectly, grant,
hypothecate, dispose of, encumber or transfer, in any manner whatsoever any
interest in the CCA Stock, or any assets of CCA, to any party without the prior
written consent of DVI, which consent shall be deemed given in favor of Dolphin
in the event that the Acquisition occurs on or before October 31, 2002.
9. Representations and Warranties of DVI.
DVI represents and warrants to USCC that it is a corporation duly
organized, validly existing, and in good standing under the laws of the State of
its incorporation, and has all necessary corporate power and authority to enter
into and perform its obligations under this Agreement and
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any other document related hereto, and has been duly authorized by all requisite
corporate action by DVI. This Agreement has been duly and validly executed and
delivered by DVI and constitutes the legal, valid and binding obligation of DVI
in accordance with its terms.
10. Further Assurances. Each of the parties hereto agrees to take such
other actions and/or execute such other documents, instruments, and agreements
as may be necessary to effectuate the terms contained herein and fulfill its
obligations under this Agreement and any other document referred to herein.
11. Notice. All notices or other communications made by USCC or DVI
pursuant hereto shall be in writing and shall be sufficiently given if and when
hand delivered to the authorized persons representing the respective entities at
the address set forth in the signature pages hereto, or if sent by documented
overnight delivery service or registered or certified mail, postage prepaid,
return receipt requested, or by facsimile, with receipt acknowledged, followed
by regular mail and addressed as set forth below or to such other address or
addresses as shall be furnished in writing by any party hereto in accordance
herewith. Any such notice or communication shall be deemed to have been given as
of the date received, in the case of personal delivery, or on the date shown on
the receipt or confirmation therefor in all other cases.
12. Governing Law. This Agreement is made pursuant to, and shall be
construed and enforced in accordance with, the laws of the Commonwealth of
Pennsylvania, except to the extent otherwise required by law.
13. Severability. The invalidity or unenforceability of any particular
provision, or part of any provision, of this Agreement shall not affect the
other provisions or parts hereof, and this Agreement shall be construed in all
respects as if such invalid or unenforceable provisions or parts were omitted.
14. Counterparts; Facsimile Signatures. This Agreement may be executed
in two or more counterparts, each of which shall be deemed an original, but all
of such counterparts together shall be deemed to be one and the same legally
binding document. This Agreement may be executed by facsimile, and a facsimile
signature shall have the same force and effect as an original signature on this
Agreement.
15. JURY WAIVER. TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE PARTIES
HERETO EACH HEREBY WAIVE ANY AND ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION
BROUGHT IN CONNECTION WITH OR RELATED TO THIS AGREEMENT, THE PERFORMANCE OF
EITHER PARTY HEREUNDER, OR THE CONSUMMATION OF THE TRANSACTIONS CONTEMPLATED
HEREWITH.
16. Assignments; Parties in Interest. Except as otherwise provided
herein, 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
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other parties; provided however, that, prior to or simultaneous with the
consummation of the Acquisition or prior to the expiration of the Exercise
Period, which ever is earlier, this Agreement and all of DVI's rights hereunder
shall be assigned to, and all of DVI's obligations hereunder (other than DVI's
obligation to release and discharge the USCC Indebtedness upon the consummation
of the Acquisition) shall be assumed by, Dolphin. 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.
17. Publicity. The parties agree not to issue any announcement, press
release, public statement or other information to the press or any third party
with respect to this Agreement or the transactions contemplated hereby without
obtaining the prior written approval of the other party hereto (which approval
shall not be unreasonably withheld); provided, however, that nothing contained
herein shall prevent any party hereto, at any time, from furnishing any required
information to any governmental authority or from issuing any announcement,
press release, public statement or other information to the press or any third
party with respect to the Agreement or the transaction contemplated hereby if
required by law, rule or regulation.
18. Interpretation. The words "include," "includes" and "including"
when used herein shall be deemed in each case to be followed by the words
"without limitation." The headings contained in this Agreement are for reference
purposes only and shall not affect in any way the meaning or interpretation of
this Agreement.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of September 30, 2002 but this Agreement is effective as of June
30, 2002.
U.S. CANCER CARE, INC.,
a Delaware corporation
By: /s/ Xxxxxxx X. Xxxxxxx
-----------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Chief Executive Officer
Address:
000 Xxxxxxx Xxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx Xxxxx, XX 00000
(000) 000-0000
(000) 000-0000 (facsimile)
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DVI FINANCIAL SERVICES INC.,
a Delaware corporation
By:/s/ Xxxx X. Xxxxx
-----------------
Name:
Title:
Address:
0000 Xxxx Xxxx
Xxxxxxx, XX 00000
(000) 000-0000
(000) 000-0000 (facsimile)
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