REGISTRATION RIGHTS AGREEMENT
-----------------------------
This Registration Rights Agreement (the "Agreement") is entered into as
of June 30, 2003, among OnCure Medical Corp., a Delaware corporation (the
"Company"); the persons and/or entities listed as Series A Investors on Schedule
I attached hereto (the "Series A Investors"); the persons and/or entities listed
as Series B Investors on Schedule I (the "Series B Investors"); and the persons
and/or entities listed as Series C-1 Investors on Schedule I (the "Series C-1
Investors"). The names and addresses of all parties to this Agreement are set
forth on Schedule I.
WHEREAS, the Company has issued and/or concurrently herewith is issuing
to the Series A Investors an aggregate of 10,834 shares of the Company's Series
A Convertible Preferred Stock, $.001 par value per share (the "Series A
Preferred Stock"), pursuant to the Restructuring Agreement dated as of June 30,
2003 among the Company and the persons signatories thereto (the "Restructuring
Agreement");
WHEREAS, the Company has issued and/or concurrently herewith is issuing
to the Series B Investors an aggregate of 150,325 shares of the Company's Series
B Convertible Preferred Stock, $.001 par value per share (the "Series B
Preferred Stock"), pursuant to the Restructuring Agreement;
WHEREAS, the Company has issued and/or concurrently herewith is issuing
to certain of the Series C-1 Investors an aggregate of 77,200 shares of the
Company's Series C-1 Convertible Preferred Stock, $.001 par value per share (the
"Series C-1 Preferred Stock"), pursuant to the Restructuring Agreement;
WHEREAS, one of the Series C-1 Investors, Laurel Holdings II, L.L.C.,
is purchasing, concurrently herewith, an aggregate of 240,000 shares of Series
Preferred Stock pursuant to the Securities Purchase Agreement of even date
herewith among the Company, certain subsidiaries of the Company and Laurel
Holdings II, L.L.C. (the "Securities Purchase Agreement");
WHEREAS, in order to induce the Investors to agree to a capital
restructuring of the Company or to invest in the Company, as the case may be,
the Company has agreed with the parties hereto to enter into this Registration
Rights Agreement;
NOW, THEREFORE, in consideration of the premises, the agreements set
forth below, and the parties' desire to further the interests of the Company and
its present and future stockholders, the parties agree as follows:
1. Certain Definitions. As used in this Agreement, the following
terms shall have the following respective meanings (such meanings shall be
equally applicable to both the singular and the plural forms of the terms
defined):
"Board of Directors" shall mean the board of directors of the
Company as constituted from time to time.
"Commission" shall mean the Securities and Exchange Commission, or
any other federal agency at the time administering the Securities Act.
"Common Stock" shall mean the Common Stock, $0.001 par value per
share, of the Company, as constituted as of the date of this Agreement.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended, or any similar federal statute, and the rules and regulations of the
Commission thereunder, all as the same shall be in effect at the time.
"Investors" shall mean the Series A Investors, Series B Investors
and Series C-1 Investors.
"Person" shall mean an individual, corporation, partnership, joint
venture, trust, or unincorporated organization, or a government or any agency or
political subdivision thereof.
"Preferred Conversion Shares" shall mean the shares of Common
Stock issuable upon conversion of the Preferred Shares.
"Preferred Shares" shall mean the shares of Preferred Stock issued
to the Investors pursuant to or in connection with Restructuring Agreement or
the Securities Purchase Agreement, as the case may be.
"Preferred Stock" shall mean the Series A Convertible Preferred
Stock, Series B Convertible Preferred Stock, and Series C-1 Convertible
Preferred Stock.
"Qualified Offering" shall mean a firm commitment underwritten
public offering of shares of the Company's Common Stock in which (i) the
aggregate net proceeds to the Company are at least $60 million and (ii) the
price paid by the public for such shares is at least $.50 per share (subject to
appropriate adjustment in the event of any stock dividend, stock split,
combination or other similar recapitalization affecting such shares).
"Registration Expenses" shall mean the expenses so described in
Section 7.
"Registrable Shares" shall mean the Preferred Conversion Shares
and the Warrant Conversion Shares, excluding the Preferred Conversion Shares and
Warrant Conversion Shares that have (a) been registered under the Securities Act
pursuant to an effective registration statement filed thereunder and disposed of
in accordance with the registration statement covering them (b) been publicly
sold pursuant to Rule 144 under the Securities Act, (c) been otherwise
transferred and the Company has delivered a new certificate or other evidence of
ownership for such securities not bearing a restrictive legend or stop transfer
order and such securities maybe be publicly resold by the person receiving such
certificate without complying with the registration requirements of the
Securities Act or (d) ceased to be outstanding. For purposes of this Agreement,
(1) a holder of Preferred Shares, Warrant Exercise Shares and a Warrant shall be
deemed to be a holder of Registrable Shares, unless such holder is a transferee
that is not entitled
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to registration rights under Section 11(a) hereof; and (2) when reference is
made to a number or amount of Registrable Shares (whether expressed as a
percentage, a majority or otherwise), it shall be assumed for such purposes that
(a) all Preferred Shares have been converted into Preferred Conversion Shares
and (b) all outstanding Warrants have been exercised in full, and all Warrant
Exercise Shares have been converted into Warrant Conversion Shares.
"Securities Act" shall mean the Securities Act of 1933, as
amended, or any similar federal statute, and the rules and regulations of the
Commission thereunder, all as the same shall be in effect at the time.
"Selling Expenses" shall mean the expenses so described in Section
7.
"Subsidiary" shall mean (i) any corporation more than fifty
percent (50%) of whose stock of any class or classes having by the terms thereof
ordinary voting power to elect a majority of the directors of such corporation
(irrespective of whether or not at the time stock of any class or classes of
such corporation shall have or might have voting power by reason of the
happening of any contingency) is at the time owned directly or indirectly by the
Company and/or any one or more of its Subsidiaries, and (ii) any partnership,
limited liability company, association, joint venture or other entity in which
the Company and/or one or more of its Subsidiaries has more than a fifty percent
(50%) equity interest at the time.
"Warrants" shall mean the warrants issued or issuable pursuant to
the Securities Purchase Agreement and/or the Restructuring Agreement dated as of
the date hereof among the Company and certain of its stockholders, and any
warrants issued in exchange for or in replacement thereof.
"Warrant Conversion Shares" shall mean the shares of Common Stock
issuable upon conversion of the Warrant Exercise Shares.
"Warrant Exercise Shares" shall mean the shares of Series C-1
Preferred Stock issuable upon exercise of the Warrants.
2. Restrictive Legend. Each certificate representing Preferred
Shares, Preferred Conversion Shares, Warrant Exercise Shares or Warrant
Conversion Shares shall, except as otherwise provided in this Section 2 or in
Section 3, be stamped or otherwise imprinted with a legend substantially in the
following form:
"THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933
OR ANY STATE SECURITIES LAWS AND MAY NOT BE TRANSFERRED OR OTHERWISE
DISPOSED OF UNLESS IT HAS BEEN REGISTERED UNDER SUCH ACT AND ALL SUCH
APPLICABLE LAWS OR AN EXEMPTION FROM REGISTRATION IS AVAILABLE."
A certificate shall not bear such legend if in the opinion of counsel
satisfactory to the Company (it being agreed that ▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇,
LLP or ▇▇▇▇▇▇ Hall and ▇▇▇▇▇▇▇ shall be
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satisfactory) the securities represented thereby may be publicly sold without
registration under the Securities Act and any applicable state securities laws.
3. Required Registration.
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(a) At any time after the earlier of three years from the date
of this Registration Rights Agreement or six months after the closing of a
public offering of Common Stock pursuant to an effective registration statement,
the holders of Registrable Shares constituting at least 35% in interest of the
total number of Registrable Shares then outstanding may request the Company to
register under the Securities Act all or any portion of the Registrable Shares
held by such requesting holder or holders for sale in the manner specified in
such notice. Notwithstanding anything to the contrary contained herein, no
request may be made under this Section 3 within 180 days after the effective
date of any registration statement on Form S-1 filed by the Company.
(b) Following receipt of any notice under this Section 3, the
Company shall promptly notify all holders of Registrable Shares from whom notice
has not been received and such holders shall then be entitled within 30 days
thereafter to request the Company to include in the requested registration all
or any portion of their Registrable Shares. The Company shall use its
commercially reasonable efforts to register under the Securities Act, for public
sale in accordance with the method of disposition described in paragraph (a)
above, the number of Registrable Shares specified in such notice (and in all
notices received by the Company from other holders within 30 days after the
giving of such notice by the Company). The Company shall be obligated to
register Registrable Shares pursuant to this Section 3 on two occasions only
(except for on Form S-3 or any equivalent successor form); provided, however,
that such obligation shall be deemed satisfied only when a registration
statement covering all Registrable Shares specified in notices received as
aforesaid for sale in accordance with the method of disposition specified by the
requesting holders shall have become effective or if such registration statement
has been withdrawn prior to the consummation of the offering at the request of
the holders of a majority of the Registrable Shares included in such
registration statement (other than as a result of a material adverse change in
the business or condition, financial or otherwise, of the Company) and, if such
method of disposition is a firm commitment underwritten public offering, all
such shares shall have been sold pursuant thereto (not including shares eligible
for sale pursuant to the underwriters' over-allotment option).
(c) The Company shall be entitled to include in any
registration statement referred to in this Section 3 shares of Common Stock to
be sold by the Company for its own account, except as and to the extent that, in
the opinion of the managing underwriter, such inclusion would adversely affect
the marketing of the Registrable Shares to be sold. Except for registration
statements on Form ▇-▇, ▇-▇ or any successor thereto, the Company will not file
with the Commission any other registration statement with respect to its Common
Stock, whether for its own account or that of other stockholders, from the date
of receipt of a notice from requesting holders requesting sale pursuant to an
underwritten offering pursuant to this Section 3 until the completion of the
period of distribution of the registration contemplated thereby.
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(d) If in the opinion of the managing underwriter the
inclusion of all of the Registrable Shares requested to be registered under this
Section would adversely affect the marketing of such shares, shares to be sold
by the holders of Registrable Shares, if any, shall be excluded only after any
shares to be sold by the Company have been excluded, in such manner that the
shares to be sold shall be allocated among the selling holders pro rata based on
their ownership of Registrable Shares.
4. Incidental Registration. If the Company at any time (other than
pursuant to Section 3 or Section 5) proposes to register any of its securities
under the Securities Act for sale to the public, whether for its own account or
for the account of other security holders or both (except with respect to
registration statements on Forms ▇-▇, ▇-▇ or another form not available for
registering the Registrable Shares for sale to the public), each such time it
will give written notice to all holders of outstanding Registrable Shares of its
intention so to do. Upon the written request of any such holder, received by the
Company within 30 days after the giving of any such notice by the Company, to
register any of its Registrable Shares, the Company will use its commercially
reasonable efforts to cause the Registrable Shares as to which registration
shall have been so requested to be included in the securities to be covered by
the registration statement proposed to be filed by the Company, all to the
extent requisite to permit the sale or other disposition by the holder of such
Registrable Shares so registered. In the event that any registration pursuant to
this Section 4 shall be, in whole or in part, an underwritten public offering of
Common Stock, the number of shares (including Registrable Shares) to be included
in such underwriting may be reduced, if and to the extent that the managing
underwriter is of the opinion that such inclusion would adversely affect the
marketing of the securities to be sold by the Company therein; provided,
however, that any such reductions shall be made only in the following manner:
first, those shares that are not Registrable Shares (excluding those shares that
the Company has proposed to be registered) may be removed from the underwriting
to the extent necessary to satisfy such marketing limitation; second, if
additional shares need to be removed from the underwriting to satisfy such
marketing limitation, then Registrable Shares resulting from the conversion of
shares of Series A Preferred Stock, Series B Preferred Stock and Series C
Preferred Stock (including Warrant Exercise Shares) may be removed from the
underwriting (pro rata based on the number of such shares that had been
designated for inclusion in the underwriting by each holder thereof) to the
extent necessary to satisfy such marketing limitation ;and third, , if
additional shares need to be removed from the underwriting to satisfy such
marketing limitation, then those shares that the Company has proposed to be
registered may be removed from the underwriting to the extent necessary to
satisfy such marketing limitation; and further provided, however, that in no
event may fewer than twenty percent (20%) of the total number of shares of
Common Stock to be included in such underwriting be made available for
Registrable Shares unless the managing underwriter shall in good faith advise
the holders thereof proposing to distribute their securities through such
underwriting that such level of participation would, in its opinion, materially
adversely affect the offering price or its ability to complete the offering and
shall specify the number of Registrable Shares which, in its opinion, can be
included in the registration and underwriting without such an effect.
5. Registration on Form S-3. If at any time (i) a holder or holders
of Registrable Shares request that the Company file a registration statement on
Form S-3 or any successor
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thereto for a public offering of all or any portion of the Registrable Shares
held by such requesting holder or holders, having an estimated market value of
at least $1,000,000 at time of such request and (ii) the Company is a registrant
entitled to use Form S-3 or any successor thereto to register such shares, then
the Company shall use its commercially reasonable efforts to register under the
Securities Act on Form S-3 or any successor thereto, for public sale in
accordance with the method of disposition specified in such notice, the number
of Registrable Shares specified in such notice. Whenever the Company is required
by this Section 5 to use its commerically reasonable efforts to effect the
registration of Registrable Shares, each of the procedures and requirements of
Section 3 (including but not limited to the requirement that the Company notify
all holders of Registrable Shares from whom notice has not been received and
provide them with the opportunity to participate in the offering) shall apply to
such registration, provided, however, that there shall be no limitation on the
number of registrations on Form S-3 which may be requested and obtained under
this Section 5, and provided, further, however, that the requirements contained
in the first sentence of Section 3(a) shall not apply to any registration on
Form S-3 which may be requested and obtained under this Section 5.
Notwithstanding anything to the contrary in this Section 5, the Company shall
not be required to effect more than one registration pursuant to this Section 5
in any six (6) month period.
6. Registration Procedures. If and whenever the Company is required
by the provisions of Sections 3, 4 or 5 to use its commercially reasonable
efforts to effect the registration of any Registrable Shares under the
Securities Act, the Company will, as expeditiously as practicable:
(a) prepare and file with the Commission a registration
statement (which, in the case of an underwritten public offering pursuant to
Section 3, shall be on Form S-1 or other form of general applicability
satisfactory to the managing underwriter selected as therein provided) with
respect to such securities and use its commercially reasonable efforts to cause
such registration statement to become and remain effective for the period of the
distribution contemplated thereby (determined as hereinafter provided);
(b) prepare and file with the Commission such amendments and
supplements to such registration statement and the prospectus used in connection
therewith as may be necessary to keep such registration statement effective for
the period specified in paragraph (a) above and comply with the provisions of
the Securities Act with respect to the disposition of all Registrable Shares
covered by such registration statement in accordance with the sellers' intended
method of disposition set forth in such registration statement for such period;
(c) furnish to each seller of Registrable Shares and to each
underwriter such number of copies of the registration statement and the
prospectus included therein (including each preliminary prospectus) as such
persons reasonably may request in order to facilitate the public sale or other
disposition of the Registrable Shares covered by such registration statement;
(d) use its commercially reasonable efforts to register or
qualify the Registrable Shares covered by such registration statement under the
securities or "blue sky" laws of such jurisdictions as the sellers of
Registrable Shares or, in the case of an underwritten public
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offering, the managing underwriter reasonably shall request, provided, however,
that the Company shall not for any such purpose be required to qualify generally
to transact business as a foreign corporation in any jurisdiction where it is
not so qualified or to consent to general service of process in any such
jurisdiction;
(e) use its commercially reasonable efforts to list the
Registrable Shares covered by such registration statement with any securities
exchange on which the Common Stock of the Company is then listed;
(f) provide a transfer agent and registrar for all such
Registrable Shares, not later than the effective date of such registration
statement;
(g) promptly notify each seller of Registrable Shares and each
underwriter under such registration statement, at any time when a prospectus
relating thereto is required to be delivered under the Securities Act, of the
happening of any event of which the Company has knowledge as a result of which
the prospectus contained in such registration statement, as then in effect,
includes an untrue statement of a material fact or omits to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading in light of the circumstances then existing;
(h) if the offering is underwritten and at the request of any
seller of Registrable Shares, use its commercially reasonable efforts to furnish
on the date that Registrable Shares are delivered to the underwriters for sale
pursuant to such registration: (i) an opinion dated such date of counsel
representing the Company for the purposes of such registration, addressed to the
underwriters and to such seller, stating that such registration statement has
become effective under the Securities Act and that (A) to the commercially
reasonable knowledge of such counsel, no stop order suspending the effectiveness
thereof has been issued and no proceedings for that purpose have been instituted
or are pending or contemplated under the Securities Act, (B) the registration
statement, the related prospectus and each amendment or supplement thereof
comply as to form in all material respects with the requirements of the
Securities Act (except that such counsel need not express any opinion as to
financial statements contained therein) and (C) to such other matters as
reasonably may be requested by counsel for the underwriters or by such seller or
its counsel and (ii) a letter dated such date from the independent public
accountants retained by the Company, addressed to the underwriters and to such
seller, stating that they are independent public accountants within the meaning
of the Securities Act and that, in the opinion of such accountants, the
financial statements of the Company included in the registration statement or
the prospectus, or any amendment or supplement thereof, comply as to form in all
material respects with the applicable accounting requirements of the Securities
Act, and such letter shall additionally cover such other financial matters
(including information as to the period ending no more than five business days
prior to the date of such letter) with respect to such registration as such
underwriters reasonably may request;
(i) make available for inspection by each seller of
Registrable Shares, any underwriter participating in any distribution pursuant
to such registration statement, and any
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attorney, accountant or other agent retained by such seller or underwriter, all
financial and other records, pertinent corporate documents and properties of the
Company, and cause the Company's officers, directors and employees to supply all
information reasonably requested by any such seller, underwriter, attorney,
accountant or agent in connection with such registration statement. The rights
granted pursuant to this subsection (i) may not be assigned or otherwise
conveyed by such person or by any subsequent transferee of any such rights
without the written consent of the Company, which consent shall not be
unreasonably withheld; provided that the Company may refuse such written consent
if the proposed transferee is a competitor of the Company as determined by the
Company's Board of Directors; and provided further, that no such written consent
shall be required if the transfer is made to a party who is not a competitor of
the Company and who is a parent, subsidiary, affiliate, partner or group member
of such person;
(j) advise each selling holder of Registrable Shares, promptly
after it shall receive notice or obtain knowledge thereof, of the issuance of
any stop order by the Commission suspending the effectiveness of such
registration statement or the initiation or threatening of any proceeding for
such purpose and promptly use all reasonable efforts to prevent the issuance of
any stop order or to obtain its withdrawal if such stop order should be issued;
(k) cooperate with the selling holders of Registrable Shares
and the managing underwriters, if any, to facilitate the timely preparation and
delivery of certificates representing Registrable Shares to be sold, such
certificates to be in such denominations and registered in such names as such
holders or the managing underwriters may request at least two business days
prior to any sale of Registrable Shares; and
(l) permit any holder of Registrable Shares which holder, in
the sole and exclusive judgment, exercised in good faith, of such holder, might
be deemed to be a controlling person of the Company, to participate in good
faith in the preparation of such registration or comparable statement and to
require the insertion therein of material, furnished to the Company in writing,
which in the reasonable judgment of such holder and its counsel should be
included, subject to review by the Company and its counsel after consultation
with such holder.
For purposes of Section 6(a) and 6(b) and of Section 3(c), the period
of distribution of Registrable Shares in a firm commitment underwritten public
offering shall be deemed to extend until each underwriter has completed the
distribution of all securities purchased by it, and the period of distribution
of Registrable Shares in any other registration shall be deemed to extend until
the earlier of the sale of all Registrable Shares covered thereby and 90 days
after the effective date thereof.
In connection with each registration hereunder, the sellers of
Registrable Shares will furnish to the Company in writing such information with
respect to themselves and the proposed distribution by them as reasonably shall
be necessary in order to assure compliance with federal and applicable state
securities laws.
In connection with each registration pursuant to Sections 3, 4 or 5
covering an underwritten public offering, the Company and each seller agree to
enter into a written agreement
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with the managing underwriter selected in the manner herein provided in such
form and containing such provisions as are customary in the securities business
for such an arrangement between such underwriter and companies of the Company's
size and investment stature.
7. Expenses. All expenses incurred by the Company in complying with
Sections 3, 4 and 5, including, without limitation, all registration and filing
fees, printing expenses, fees and disbursements of counsel and independent
public accountants for the Company, fees and expenses (including counsel fees)
incurred in connection with complying with state securities or "blue sky" laws,
fees of the National Association of Securities Dealers, Inc., transfer taxes,
fees of transfer agents and registrars, and fees and disbursements of one
counsel for the sellers of Registrable Shares, but excluding any Selling
Expenses, are called "Registration Expenses". All underwriting discounts and
selling commissions applicable to the sale of Registrable Shares are called
"Selling Expenses".
The Company will pay all Registration Expenses in connection with each
registration statement under Sections 3, 4 or 5. All Selling Expenses in
connection with each registration statement under Sections 3, 4 or 5 shall be
borne by the participating sellers in proportion to the number of shares sold by
each, or by such participating sellers other than the Company (except to the
extent the Company shall be a seller) as they may agree.
8. Indemnification and Contribution.
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(a) In the event of a registration of any of the Registrable
Shares under the Securities Act pursuant to Sections 3, 4 or 5, the Company will
indemnify and hold harmless each seller of such Registrable Shares thereunder,
each underwriter of such Registrable Shares thereunder and each other person, if
any, who controls such seller or underwriter within the meaning of the
Securities Act, against any losses, claims, damages or liabilities, joint or
several, to which such seller, underwriter or controlling person may become
subject under the Securities Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon any untrue statement or alleged untrue statement of any material fact
contained in any registration statement under which such Registrable Shares were
registered under the Securities Act pursuant to Sections 3, 4 or 5, any
preliminary prospectus or final prospectus contained therein, or any amendment
or supplement thereof, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, and will reimburse each
such seller, each such underwriter and each such controlling person for any
legal or other expenses reasonably incurred by them in connection with
investigating or defending any such loss, claim, damage, liability or action,
provided, however, that the Company will not be liable in any such case if and
to the extent that (1) any such loss, claim, damage or liability arises out of
or is based upon an untrue statement or alleged untrue statement or omission or
alleged omission so made in conformity with information furnished by any such
seller, any such underwriter or any such controlling person in writing
specifically for use in such registration statement or prospectus or (2) the
prospectus relating to such registration shall have been amended or supplemented
and copies, as so amended or supplemented, shall have been furnished to such
seller of Registrable Securities prior to the confirmation of any sales of
Registrable Securities and such seller did not,
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at or prior to the confirmation of the sale of Regsitrable Securities deliver
such prospectus to the purchaser of such Registrable Securities if such
applicable untrue statement or omission of a material fact contained in a
prospectus was corrected in the prospectus so amend or supplemented..
(b) In the event of a registration of any of the Registrable
Shares under the Securities Act pursuant to Sections 3, 4 or 5, each seller of
such Registrable Shares thereunder, severally and not jointly, will indemnify
and hold harmless the Company, each person, if any, who controls the Company
within the meaning of the Securities Act, each officer of the Company who signs
the registration statement, each director of the Company, each underwriter and
each person who controls any underwriter within the meaning of the Securities
Act, against all losses, claims, damages or liabilities, joint or several, to
which the Company or such officer, director, underwriter or controlling person
may become subject under the Securities Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon any untrue statement or alleged untrue statement of any
material fact contained in the registration statement under which such
Registrable Shares were registered under the Securities Act pursuant to Sections
3, 4 or 5, any preliminary prospectus or final prospectus contained therein, or
any amendment or supplement thereof, or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, and
will reimburse the Company and each such officer, director, underwriter and
controlling person for any legal or other expenses reasonably incurred by them
in connection with investigating or defending any such loss, claim, damage,
liability or action, provided, however, that such seller will be liable
hereunder in any such case if and only to the extent that any such loss, claim,
damage or liability arises out of or is based upon an untrue statement or
alleged untrue statement or omission or alleged omission made in reliance upon
and in conformity with information pertaining to such seller, as such, furnished
in writing to the Company by such seller specifically for use in such
registration statement or prospectus, and provided, further, however, that the
liability of each seller hereunder shall be limited to the proportion of any
such loss, claim, damage, liability or expense which is equal to the proportion
that the public offering price of the shares sold by such seller under such
registration statement bears to the total public offering price of all
securities sold thereunder, but not in any event to exceed the net proceeds
received by such seller from the sale of Registrable Shares covered by such
registration statement.
(c) Promptly after receipt by an indemnified party hereunder
of notice of the commencement of any action, such indemnified party shall, if a
claim in respect thereof is to be made against the indemnifying party hereunder,
notify the indemnifying party in writing thereof, but the omission so to notify
the indemnifying party shall not relieve it from any liability which it may have
to such indemnified party other than under this Section 8 and shall only relieve
it from any liability which it may have to such indemnified party under this
Section 8 if and to the extent the indemnifying party is prejudiced by such
omission. In case any such action shall be brought against any indemnified party
and it shall notify the indemnifying party of the commencement thereof, the
indemnifying party shall be entitled to participate in and, to the extent it
shall wish, to assume and undertake the defense thereof with counsel reasonably
satisfactory to such indemnified party, and, after notice from the indemnifying
party to such indemnified party of its
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election so to assume and undertake the defense thereof, the indemnifying party
shall not be liable to such indemnified party under this Section 8 for any legal
expenses subsequently incurred by such indemnified party in connection with the
defense thereof other than reasonable costs of investigation and of liaison with
counsel so selected, provided, however, that, if the defendants in any such
action include both the indemnified party and the indemnifying party and the
indemnified party shall have reasonably concluded that there may be reasonable
defenses available to it which are different from or additional to those
available to the indemnifying party or if the interests of the indemnified party
reasonably may be deemed to conflict with the interests of the indemnifying
party, the indemnified party shall have the right to select a separate counsel
and to assume such legal defenses and otherwise to participate in the defense of
such action, with the expenses and fees of such separate counsel and other
expenses related to such participation to be reimbursed by the indemnifying
party as incurred.
(d) In order to provide for just and equitable contribution to
joint liability under the Securities Act in any case in which either (i) any
holder of Registrable Shares exercising rights under this Agreement, or any
controlling person of any such holder, makes a claim for indemnification
pursuant to this Section 8 but it is judicially determined (by the entry of a
final judgment or decree by a court of competent jurisdiction and the expiration
of time to appeal or the denial of the last right of appeal) that such
indemnification may not be enforced in such case notwithstanding the fact that
this Section 8 provides for indemnification in such case, or (ii) contribution
under the Securities Act may be required on the part of any such selling holder
or any such controlling person in circumstances for which indemnification is
provided under this Section 8; then, and in each such case, the Company and such
holder will contribute to the aggregate losses, claims, damages or liabilities
to which they may be subject (after contribution from others) in such proportion
so that such holder is responsible for the portion represented by the percentage
that the public offering price of its Registrable Shares offered by the
registration statement bears to the public offering price of all securities
offered by such registration statement, and the Company is responsible for the
remaining portion; provided, however, that, in any such case, (A) no such holder
will be required to contribute any amount in excess of the public offering price
of all such Registrable Shares offered by it pursuant to such registration
statement; and (B) no person or entity guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) will be entitled to
contribution from any person or entity who was not guilty of such fraudulent
misrepresentation.
9. Changes in Common Stock or Preferred Stock. If, and as often as,
there is any change in the Common Stock or the Preferred Stock by way of a stock
split, stock dividend, combination or reclassification, or through a merger,
consolidation, reorganization or recapitalization, or by any other means,
appropriate adjustment shall be made in the provisions hereof so that the rights
and privileges granted hereby shall continue with respect to the Common Stock
and the Preferred Stock as so changed.
10. Rule 144 Reporting. With a view to making available the benefits
of certain rules and regulations of the Commission which may at any time permit
the sale of the Registrable Shares to the public without registration, at all
times after 90 days after any registration statement
-11-
covering a public offering of securities of the Company under the Securities Act
shall have become effective, the Company agrees to:
(a) make and keep public information available, as those terms
are understood and defined in Rule 144 under the Securities Act;
(b) use its commercially reasonable efforts to file with the
Commission in a timely manner all reports and other documents required of the
Company under the Securities Act and the Exchange Act; and
(c) furnish to each holder of Registrable Shares forthwith
upon request a written statement by the Company as to its compliance with the
reporting requirements of such Rule 144 and of the Securities Act and the
Exchange Act, a copy of the most recent annual or quarterly report of the
Company, and such other reports and documents so filed by the Company as such
holder may reasonably request in availing itself of any rule or regulation of
the Commission allowing such holder to sell any Registrable Shares without
registration.
11. Miscellaneous.
-------------
(a) All covenants and agreements contained in this Agreement
by or on behalf of any of the parties hereto shall bind and inure to the benefit
of the respective successors and assigns of the parties hereto (including
without limitation transferees of any Registrable Shares, Preferred Shares,
Warrant Exercise Shares or Warrant), whether so expressed or not, provided,
however, that registration rights conferred herein on the Investors hereunder
shall only inure to the benefit of a transferee of Registrable Shares, Preferred
Shares, Warrant Exercise Shares or a Warrant if (i) immediately after such
assignment or other transfer, such transferee will hold 1,000,000 Registrable
Shares (subject to appropriate adjustment in the event of any stock dividend,
stock split, combination or other similar recapitalization affecting such
shares) or (ii) such transferee is a partner, member, stockholder or affiliate
of a party hereto.
(b) All notices, requests, consents and other communications
hereunder shall be in writing and shall be delivered in person, mailed by
certified or registered mail, return receipt requested, or sent by telecopier or
telex, addressed, if to the Company or an Investor, to the respective addresses
set forth on Schedule I hereto, or if to any subsequent holder of Registrable
Shares, to such holder at such address as may have been furnished to the Company
in writing by such holder; or, in any case, at such other address or addresses
as shall have been furnished in writing to the Company (in the case of a holder
of Preferred Shares, Preferred Conversion Shares, Warrant Conversion Shares,
Warrant Exercise Shares, Registrable Shares or a Warrant) or to the holders of
Preferred Shares, Preferred Conversion Shares, Warrant Conversion Shares,
Warrant Exercise Shares, Registrable Shares or a Warrant (in the case of the
Company) in accordance with the provisions of this paragraph.
(c) This Agreement shall be governed by and construed in
accordance with the internal laws of the State of Delaware, without regard to
its principles of conflicts of laws.
-12-
(d) This Agreement may not be amended or modified, and no
provision hereof may be waived, without the written consent of the Company and
the holders of at least 66-2/3% of the Registrable Shares outstanding.
(e) This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
(f) The obligations of the Company to register Registrable
Shares under Sections 3, 4 or 5 shall terminate on the fifth anniversary of the
date of a Qualified Offering.
(g) If requested in writing by the underwriters for the
underwritten public offering of securities of the Company, each holder of
Registrable Shares who is a party to this Agreement shall agree not to sell
publicly any Registrable Shares or any other shares of Common Stock (other than
Registrable Shares or other shares of Common Stock being registered in such
offering), without the consent of such underwriters, for a period not to exceed
90 days following the effective date of the registration statement relating to
such offering (unless the offering is the Company's first underwritten
registered public offering after the date hereof, in which case such period
shall not exceed 180 days); provided, however, that all persons entitled to
registration rights with respect to shares of Common Stock who are not parties
to this Agreement, all other persons selling shares of Common Stock in such
offering, all persons holding in excess of 1% of the capital stock of the
Company on a fully diluted basis and all executive officers and directors of the
Company shall also have agreed not to sell publicly their Common Stock under the
circumstances and pursuant to the terms set forth in this Section 11(g); and
provided, further, however, that any such lock-up agreement shall provide that
if the managing underwriter releases any shares from the lock-up with respect to
such offering prior to the scheduled expiration date, the managing underwriter
shall contemporaneously release a pro rata portion of the Registrable Shares
from such lock-up.
(h) Notwithstanding the provisions of Section 6(a), the
Company's obligation to file a registration statement, or cause such
registration statement to become and remain effective, shall be suspended for a
period not to exceed 90 days in any 12-month period if there exists at the time
material non-public information relating to the Company which, in the reasonable
opinion of the Company, should not be disclosed.
(i) The Company shall not grant to any third party any
registration rights more favorable than or inconsistent with any of those
contained herein, so long as any of the registration rights under this Agreement
remains in effect; provided, however, that the Company may grant to a third
party piggy-back registration rights upon the approval of such grant by the
unanimous consent of the Board of Directors of the Company.
(j) If any provision of this Agreement shall be held to be
illegal, invalid or unenforceable, such illegality, invalidity or
unenforceability shall attach only to such provision and shall not in any manner
affect or render illegal, invalid or unenforceable any other provision
-13-
of this Agreement, and this Agreement shall be carried out as if any such
illegal, invalid or unenforceable provision were not contained herein.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
ONCURE MEDICAL CORP
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Chief Executive Officer
THE BLEDIN FAMILY TRUST
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, M.D., as trustee
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇▇▇▇▇▇, as trustee
THE FIRST AMENDED AND RESTATED ▇▇▇▇▇▇ ▇. ▇▇▇▇ AND
▇▇▇▇▇ ▇. ▇▇▇▇ TRUST AGREEMENT
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
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▇▇▇▇▇▇ ▇. ▇▇▇▇, M.D., as trustee
By: /s/ ▇▇▇▇▇ ▇▇▇▇
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▇▇▇▇▇ ▇▇▇▇, as trustee
THE ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ TRUST
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, M.D., as trustee
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
--------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
THE ▇▇▇▇▇ FAMILY TRUST
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇, M.D., as trustee
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
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▇▇▇▇▇ ▇. ▇▇▇▇▇, as trustee
THE ▇▇▇▇▇▇▇▇▇▇▇▇ FAMILY TRUST
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇
--------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇, M.D., as trustee
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇
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▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇, as trustee
THE LOCK REVOCABLE TRUST
By: /s/ ▇▇▇▇▇▇▇ ▇. Lock
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▇▇▇▇▇▇▇ ▇. Lock, M.D., as trustee
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇. Lock
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▇▇▇▇▇▇▇▇▇ ▇. Lock, as trustee
THE ▇▇▇▇▇ ▇. ▇▇▇▇ TRUST
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
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▇▇▇▇▇ ▇. ▇▇▇▇, M.D., as trustee
DVI FINANCIAL SERVICES INC.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
CROSSBOW VENTURE PARTNERS, L.P.
By: Crossbow Venture Partners Corp., as its
General Partner
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: President
MERCURIUS BELEGGINGSMAATSCHAPPIG BV
By: /s/ HHF ▇▇▇▇▇▇▇▇▇
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Name: HHF ▇▇▇▇▇▇▇▇▇
Title: President
PARTICIPATIE MAATSCHAPPIJ AVANTI LIMBURG BV
By: /s/ HHF ▇▇▇▇▇▇▇▇▇
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Name: HHF ▇▇▇▇▇▇▇▇▇
Title: President
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-----------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇
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▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇▇ HOLDINGS II, L.L.C.
By: MedEquityCapital, LLC
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Manager