EXHIBIT A
AFFILIATE AGREEMENT
American Oncology Resources, Inc.
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Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Ladies and Gentlemen:
The undersigned has been advised that, as of the date hereof, the
undersigned may be deemed to be an "affiliate" of Physician Reliance Network,
Inc., a Texas corporation ("PRN"), as that term is defined for purposes of
paragraphs (c) and (d) of Rule 145 of the Rules and Regulations (the "Rules and
Regulations") of the Securities and Exchange Commission (the "SEC") under the
Securities Act of 1933, as amended (the "Securities Act").
Pursuant to the terms and subject to the conditions of that certain
Agreement and Plan of Merger by and among American Oncology Resources, Inc.,
Diagnostics Acquisition, Inc., a Texas corporation and wholly owned subsidiary
of American Oncology Resources, Inc. ("Sub"), and PRN dated as of December 11,
1998 (the "Merger Agreement"), providing for, among other things, the merger of
Sub with and into PRN (the "Merger"), the undersigned will be entitled to
receive shares of Common Stock, par value $0.01 per share, of American Oncology
Resources, Inc. ("American Oncology Resources, Inc. Common Stock" or "Parent
Common Stock") in exchange for shares of Common Stock of PRN (collectively,
"Company Stock") owned by the undersigned at the Effective Time (as defined in
the Merger Agreement) of the Merger, as determined pursuant to the Merger
Agreement.
Any capitalized term not defined herein shall have the meaning ascribed
to such term in the Merger Agreement.
The undersigned has been advised by PRN and American Oncology Resources,
Inc. that the Merger will be treated for financial accounting purposes as a
"pooling of interests" in accordance with generally accepted accounting
principles and that the staff of the SEC has issued certain guidelines that
should be followed to ensure such "pooling of interests" treatment.
In consideration of the Merger Agreement, the agreement of American
Oncology Resources, Inc. contained herein, American Oncology Resources, Inc.'s
reliance on this letter in connection with the consummation of the Merger and
for other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the undersigned hereby represents, warrants and agrees
as follows:
I. Restrictions on Transfer Relating to Pooling of Interests
(a) The undersigned will not make any sale, transfer or other disposition
of the Company Stock owned by it during the period commencing 30 days before the
Effective Time and ending at the earlier of the Effective Time and the
termination of the Merger Agreement.
(b) The undersigned will not make any sale, transfer or other disposition
of American Oncology Resources, Inc. Common Stock owned by it after the
Effective Time until such time as financial statements that include at least 30
days of combined operations of the Company and American Oncology Resources, Inc.
after the Merger shall have been published within the meaning of Section 201.01
of the SEC's Codification of Financial Reporting Policies, unless the
undersigned shall have delivered to American Oncology Resources, Inc. prior to
any such sale, transfer or other disposition, a written opinion from
PricewaterhouseCoopers LLP, independent public accountants for American Oncology
Resources, Inc., or a written no-action letter from the accounting staff of the
SEC, in either case in form and substance reasonably satisfactory to American
Oncology Resources, Inc., to the effect that such sale, transfer or other
disposition will not cause the Merger not to be treated as a "pooling of
interests" for financial accounting purposes in accordance with generally
accepted accounting principles and the rules and regulations and interpretations
thereof of the SEC and the undersigned will not make any sale, transfer or other
disposition of any shares of American Oncology Resources, Inc. Common Stock
received by it pursuant to the Merger in violation of the Securities Act or the
rules and regulations thereunder.
II. Restrictions on Transfer Relating to Rule 145
The undersigned has been advised that the issuance of the shares of
American Oncology Resources, Inc. Common Stock in connection with the Merger
will have been registered with the SEC under the Securities Act pursuant to a
Registration Statement on Form S-4. However, the undersigned has also been
advised, and it agrees, that since it may be deemed to be an affiliate of the
Company at the time the Merger is submitted for a vote of the stockholders of
the Company, the American Oncology Resources, Inc. Common Stock received by it
pursuant to the Merger can be sold by the undersigned only (i) pursuant to an
effective registration statement under the Securities Act, (ii) in conformity
with the volume and other limitations of Rule 145 promulgated by the SEC under
the Securities Act or (iii) in reliance upon an exemption from registration that
is available under the Securities Act. The undersigned understands that American
Oncology Resources, Inc. is under no obligation to register the transfer, sale
or other disposition of the American Oncology Resources, Inc. Common Stock by
the undersigned or on the undersigned's behalf under the Securities Act or to
take any other action necessary in order to make compliance with an exemption
from such registration available. The undersigned also understands and agrees
that stop-transfer instructions will be given to American Oncology Resources,
Inc.'s transfer agent with respect to the American Oncology Resources, Inc.
Common Stock to be received by the undersigned pursuant to the Merger and that
there will be placed on the certificates representing such shares of American
Oncology Resources, Inc. Common Stock, or any substitutions therefor, a legend
stating in substance as follows:
"These shares were issued in a transaction to which Rule 145
promulgated under the Securities Act of 1933 applies. These shares may
only be transferred in accordance with the terms of such Rule and an
Affiliate Agreement between the original holder of such shares and
American Oncology Resources, Inc., a copy of which agreement is on file
at the principal offices of American Oncology Resources, Inc."
It is understood and agreed that the legend set forth above shall be
removed, upon surrender of certificates bearing such legend, if the undersigned
shall have delivered to American Oncology Resources, Inc. an opinion of counsel,
the reasonable cost of which would be borne by American Oncology Resources,
Inc., in form and substance reasonably satisfactory to American Oncology
Resources, Inc., to the effect that the sale or disposition of the shares
represented by the surrendered certificates may be effected without registration
of the offering, sale and delivery of such shares under the Securities Act. In
the event the undersigned attempts to transfer the shares of American Oncology
Resources, Inc. Common Stock, the undersigned will deliver to American Oncology
Resources, Inc. written notice of a proposed transfer in the form attached as
Exhibit A.
American Oncology Resources, Inc. agrees to file with the SEC on a timely
basis after the Effective Time all reports and data required to be filed by it
under Section 13 of the Securities Exchange Act of 1934, as amended. Parent
shall also furnish to the undersigned from time to time a written statement as
to its compliance with the reporting requirements of Rule 144 under the
Securities Act of 1933, as amended and shall otherwise use all reasonable
efforts to permit such sales under Rule 145.
It is understood and agreed that this Affiliate's Agreement shall
terminate and be of no further force and effect and the legend set forth above
shall be removed by delivery of substitute certificates without such legend, and
the related stop transfer restrictions shall be lifted forthwith if (i) the
undersigned's shares of Parent Common Stock shall have been registered under the
Securities Act of 1933, as amended, for sale, transfer or other disposition by
the undersigned or on the undersigned's behalf, or (ii) the undersigned is not
at the time an affiliate of Parent and has held the shares of Parent Common
Stock issued in the Merger for at least one year (or such other period as may be
prescribed by the Securities Act of 1933, as amended, and the rules and
regulations promulgated thereunder) and Parent has filed with the SEC all of the
reports it is required to file under the Securities Exchange Act of 1934, as
amended, during the preceding twelve months or (iii) the undersigned is not at
the time an affiliate of Parent and has not been an affiliate of Parent for at
least three months and has held the shares of Parent Common Stock issued in the
merger for at least two years (or such other period as may be prescribed by the
Securities Act of 1933, as amended, and the rules and regulations promulgated
thereunder) or (iv) Parent shall have received a letter from the SEC, or an
opinion of counsel reasonably acceptable to Parent, to the effect that the stop
transfer restrictions and the legend are not required.
III. Agreements in Respect of Voting
The undersigned hereby further agrees that, during the term that this
Agreement is in effect, at any meeting of the stockholders of PRN, however
called, or in connection with any written consent of the stockholders of PRN,
the undersigned shall vote (or cause to be voted), to the extent brought to a
vote of shareholders, all voting shares of capital stock of PRN held of record
or beneficially by the undersigned in favor of the Merger and the adoption of
the Merger Agreement.
The undersigned further agrees that it will not enter into any agreement
or understanding with any person or entity prior to the termination of this
Agreement that is contrary to the foregoing provisions.
IV. Further Representations and Agreements
The undersigned further agrees that the undersigned shall not, directly
or indirectly:
(a) except pursuant to the terms of the Merger Agreement,
offer for sale, sell, transfer, tender, pledge, encumber, assign
or otherwise dispose of, or enter into any contract, option or
other arrangement or understanding with respect to or consent to
the offer for sale, sale, transfer, tender, pledge, encumbrance,
assignment or other disposition of, any or all of the shares or
any other equity securities of PRN now or hereafter owned by the
undersigned (the "Shares") or any interest therein;
(b) except as contemplated by this Agreement, grant any
proxies or powers of attorney, deposit any Shares into any voting
trust or enter into any voting agreement with respect to any
Shares;
(c) take any action that would make any representation or
warranty contained herein untrue or incorrect or have the effect
of preventing or disabling the undersigned from performing my
obligations under this Agreement.
V. Miscellaneous
The undersigned may, after the Effective Time of the Merger Agreement,
distribute to its shareholders shares of Parent Common Stock held by the
undersigned so long as (if such distribution occurs before the date of
publication of the combined financial results report referred to in Section
I(b)) no later than the time of such distribution each such shareholder shall
have executed and delivered to Parent a letter agreement in the form of this
Agreement.
This Agreement shall terminate if the Merger Agreement is terminated in
accordance with its terms other than as a result of the effectiveness of the
Merger. Such termination shall not affect the rights of Parent for any breach of
any covenants, agreements, representations or warranties herein by the
undersigned during the term hereof.
This Agreement (i) constitutes the entire agreement between the parties
with respect to the subject matter hereof and thereof and supersedes all other
prior agreements and understandings, both written and oral, between the parties
with respect to the subject matter hereof and (ii) shall not be assigned by
operation of law or otherwise without the prior written consent of the other
party.
This Agreement shall be governed by and construed in accordance with the
laws of the State of Delaware, regardless of the laws that might otherwise
govern under applicable principles of conflicts of laws thereof.
Each of the parties hereto recognizes and acknowledges that a breach by
it of any covenants or agreements contained in this Agreement will cause the
other party to sustain damages for which there would be no adequate remedy at
law for money damages, and therefore each of the parties hereto agrees that in
the event of any such breach the aggrieved party shall be entitled to the remedy
of specific performance of such covenants and agreements and injunctive and
other equitable relief, in addition to any other remedy to which such party may
be entitled, at law or in equity.
Whenever possible, each provision or portion of any provision of this
Agreement will be interpreted in such manner as to be effective and valid under
applicable law, but if any provision or portion of any provision of this
Agreement is held to be invalid, illegal or unenforceable, such invalidity,
illegality or unenforceability will not affect any other provision or portion of
any provision, and this Agreement will be reformed, construed and enforced in
such jurisdiction as if such invalid, illegal or unenforceable provision or
portion of any provision had never been contained herein.
Execution of this Agreement by the undersigned shall not be deemed to be
an admission by the undersigned that it is an "affiliate" of PRN, nor a waiver
of any rights the undersigned may have to object to any claim that the
undersigned is an affiliate on or after the date hereof.
If you are in agreement with the foregoing, please so indicate by signing
below and returning a copy of this letter to the undersigned, at which time this
letter shall become a binding agreement between us.
This agreement may be executed in one or more counterparts, each of which
shall be deemed an original, but all of which together shall constitute one and
the same instrument.
Very truly yours, TEXAS ONCOLOGY,
P.A.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, III
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, III
Title: Chairman of the Board
Accepted this 13th day of December, 1998
American Oncology Resources, Inc.
By: /s/ R. ▇▇▇▇ ▇▇▇▇
Name: R. ▇▇▇▇ ▇▇▇▇
Title: Chief Executive Officer and
Chairman of the Board
EXHIBIT A
American Oncology Resources, Inc.
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Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Ladies and Gentlemen:
The undersigned proposes to sell ___________________ shares of the common
stock of American Oncology Resources, Inc. that the undersigned received in
connection with the transactions contemplated by the Agreement and Plan of
Merger dated December 11, 1998, by and among American Oncology Resources, Inc.,
Diagnostic Acquisitions, Inc. and Physician Reliance Network, Inc. The
undersigned proposes to effect such sale through its broker, and, if applicable,
warrants that such sale will be made in accordance with the requirements
relating to sales by "affiliates" promulgated under Rule 145 of the Securities
Act of 1933, as amended.
Very truly yours,
EXECUTION COPY
AMENDMENT TO AFFILIATE AGREEMENT
This Amendment, dated as of February 12, 1999, is entered into by and
between TEXAS ONCOLOGY, P.A., a Texas professional association ("TOPA"), and
AMERICAN ONCOLOGY RESOURCES, INC., a Delaware corporation ("AOR").
Recitals
A. In connection with the Agreement and Plan of Merger, dated as of
December 11, 1998 (the "Merger Agreement"), by and among AOR, Diagnostics
Acquisition, Inc., a Texas corporation and wholly-owned subsidiary of AOR, and
Physician Reliance Network, Inc., a Texas corporation, TOPA and AOR entered into
the Affiliate Agreement, dated as of December 13, 1998 (the "Affiliate
Agreement"). Terms used but not defined herein are used herein as defined in the
Affiliate Agreement.
▇. ▇▇▇▇ and AOR have agreed to amend the Affiliate Agreement as
hereinafter set forth.
SECTION 1. Amendments to Affiliate Agreement. The Affiliate Agreement
is, effective as of December 13, 1998, hereby
amended as follows:
(a) The first paragraph of Section V (Miscellaneous) of the
Affiliate Agreement is hereby amended in its entirety to read as follows:
"Notwithstanding any provision herein to the contrary, the
undersigned may distribute, grant, sell or transfer to its shareholders
up to 1,600,000 shares of Company Stock or, after the Effective Time,
up to 1,504,000 of Parent Common Stock, in either case pursuant to
stock options issued by, or other contractual commitments of, TOPA and
outstanding as of December 11, 1998; provided that (i) in no event
shall (A) the number of shares of Company Stock distributed, granted,
sold or transferred pursuant to this paragraph plus (B) the number of
shares of Parent Common Stock distributed, granted, sold or transferred
pursuant to this paragraph divided by 0.94 exceed 1,600,000; (ii) if
such shares are issued prior to the Effective Time, no later than the
time of such distribution, grant, sale or transfer each such
shareholder shall have executed and delivered to Parent a voting
agreement in the form attached hereto as Exhibit B; and (iii) if such
shares are distributed, granted, sold or transferred after the
Effective Time and if such distribution occurs before the date of
publication of the combined financial results report referred to in
Section I(b), no later than the time of such distribution each such
shareholder shall have executed and delivered to Parent a letter
agreement in the form of this Agreement."
(b) The voting agreement referenced in paragraph (a) of this
Section 1 and attached hereto as Exhibit B shall be attached to, and be
incorporated by reference in, the Affiliate Agreement as Exhibit B thereto.
SECTION 2. Reference to and Effect on the Affiliate Agreement. On and
after the date hereof, each reference in the Affiliate Agreement to "this
Agreement," "hereunder," "hereof," "herein" or words of like import, and each
reference in other agreements related to the Affiliate Agreement, shall mean and
be a reference to the Affiliate Agreement as amended hereby. Except as hereby
expressly amended, the Affiliate Agreement shall remain in full force and
effect, and is hereby ratified and confirmed in all respects on and as of the
date hereof.
SECTION 3. Execution in Counterparts. This Amendment may be executed in
any number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed and delivered shall be deemed to be
an original and all of which taken together shall constitute one and the same
instrument.
SECTION 4. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF DELAWARE.
IN WITNESS WHEREOF, the parties have caused this Amendment to be
executed by their duly authorized representatives.
TEXAS ONCOLOGY, P.A.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇, M.D.
Title: President
AMERICAN ONCOLOGY RESOURCES, INC.
By: /s/ L. ▇▇▇▇ Pounds
Title: Chief Financial Officer
EXHIBIT B
VOTING AGREEMENT
[DATE]
American Oncology Resources, Inc.
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Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Ladies and Gentlemen:
The undersigned has been advised that Texas Oncology, P.A., a Texas
professional association ("TOPA"), has entered into the Affiliate Agreement,
dated as of December 13, 1998, as amended by the Amendment to Affiliate
Agreement, dated as of February 10, 1999 (as so amended, the "Affiliate
Agreement"), with American Oncology Resources, Inc., a Delaware corporation
("AOR"), in connection with the Agreement and Plan of Merger, dated as of
December 11, 1998 (the "Merger Agreement"), by and among AOR, Diagnostics
Acquisition, Inc., a Texas corporation and wholly-owned subsidiary of AOR, and
Physician Reliance Network, Inc., a Texas corporation ("PRN"). Any capitalized
term not defined herein shall have the meaning ascribed to such term in the
Merger Agreement.
On the date hereof, the undersigned is receiving from TOPA ___ shares
(the "New PRN Shares") of Common Stock of PRN ("Company Stock"). Pursuant to the
Merger Agreement, the undersigned will receive shares of Common Stock, par value
$0.01 per share, of AOR ("Parent Common Stock") in exchange for all of the
shares of Company Stock (including the New PRN Shares) owned by the undersigned
at the Effective Time (as defined in the Merger Agreement) of the Merger, as
determined pursuant to the Merger Agreement.
In consideration of the agreement of AOR contained herein, AOR's
reliance on this letter in connection with the consummation of the Merger and
for other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the undersigned hereby represents, warrants and agrees
as follows:
I. AGREEMENTS IN RESPECT OF VOTING
The undersigned hereby further agrees that, during the term that this
Agreement is in effect, at any meeting of the stockholders of PRN, however
called, or in connection with any written consent of the stockholders of PRN,
the undersigned shall vote (or cause to be voted), to the extent brought to a
vote of shareholders, all New PRN Shares held of record or beneficially by the
undersigned in favor of the Merger and the adoption of the Merger Agreement.
The undersigned further agrees that it will not enter into any
agreement or understanding with any person or entity prior to the termination of
this Agreement that is contrary to the foregoing provisions.
II. FURTHER REPRESENTATIONS AND AGREEMENTS
The undersigned further agrees that the undersigned shall not, directly
or indirectly:
(a) except pursuant to the terms of the
Merger Agreement, offer for sale, sell, transfer, tender,
pledge, encumber, assign or otherwise dispose of, or enter
into any contract, option or other arrangement or
understanding with respect to or consent to the offer for
sale, sale, transfer, tender, pledge, encumbrance, assignment
or other disposition of, any or all of the New PRN Shares now
or hereafter owned by the undersigned or any interest therein;
(b) except as contemplated by this
Agreement, grant any proxies or powers of attorney, deposit
any New PRN Shares into any voting trust or enter into any
voting agreement with respect to any New PRN Shares; or
(c) take any action that would make any
representation or warranty contained herein untrue or
incorrect or have the effect of preventing or disabling the
undersigned from performing my obligations under this
Agreement.
III. MISCELLANEOUS
This Agreement shall terminate if the Merger Agreement is terminated in
accordance with its terms other than as a result of the effectiveness of the
Merger. Such termination shall not affect the rights of AOR for any breach of
any covenants, agreements, representations or warranties herein by the
undersigned during the term hereof.
This Agreement (i) constitutes the entire agreement between the parties
with respect to the subject matter hereof and thereof and supersedes all other
prior agreements and understandings, both written and oral, between the parties
with respect to the subject matter hereof and (ii) shall not be assigned by
operation of law or otherwise without the prior written consent of the other
party.
This Agreement shall be governed by and construed in accordance with
the laws of the State of Delaware, regardless of the laws that might otherwise
govern under applicable principles of conflicts of laws thereof.
Each of the parties hereto recognizes and acknowledges that a breach by
it of any covenants or agreements contained in this Agreement will cause the
other party to sustain damages for which there would be no adequate remedy at
law for money damages, and therefore each of the parties hereto agrees that in
the event of any such breach the aggrieved party shall be entitled to the remedy
of specific performance of such covenants and agreements and injunctive and
other equitable relief, in addition to any other remedy to which such party may
be entitled, at law or in equity.
Whenever possible, each provision or portion of any provision of this
Agreement will be interpreted in such manner as to be effective and valid under
applicable law, but if any provision or portion of any provision of this
Agreement is held to be invalid, illegal or unenforceable, such invalidity,
illegality or unenforceability will not affect any other provision or portion of
any provision, and this Agreement will be reformed, construed and enforced in
such jurisdiction as if such invalid, illegal or unenforceable provision or
portion of any provision had never been contained herein.
Execution of this Agreement by the undersigned shall not be deemed to
be an admission by the undersigned that it is an "affiliate" of PRN, nor a
waiver of any rights the undersigned may have to object to any claim that the
undersigned is an affiliate on or after the date hereof.
If you are in agreement with the foregoing, please so indicate by
signing below and returning a copy of this letter to the undersigned, at which
time this letter shall become a binding agreement between us.
This agreement may be executed in one or more counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
Very truly yours,
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[Name of TOPA Shareholder]
Address:___________________
Accepted this _____ day of ______, 1999
American Oncology Resources, Inc.
By:_____________________________
Name:___________________________
Title:__________________________