THIS COMMON STOCK PURCHASE WARRANT AND THE SHARES THAT MAY BE PURCHASED
HEREUNDER HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED,
OR UNDER THE SECURITIES LAWS OF ANY STATE. THIS COMMON STOCK PURCHASE WARRANT
AND THE SHARES THAT MAY BE PURCHASED HEREUNDER MAY NOT BE SOLD OR OFFERED FOR
SALE IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES
ACT OF 1933, AS AMENDED, AND REGISTRATION OR QUALIFICATION UNDER APPLICABLE
STATE SECURITIES LAWS OR AN OPINION OF COUNSEL THAT THE PROPOSED TRANSACTION
DOES NOT VIOLATE THE SECURITIES ACT OF 1933, AND APPLICABLE STATE SECURITIES
LAWS.
ONCURE TECHNOLOGIES CORP.
COMMON STOCK PURCHASE WARRANT
-----------------------------
Date of Issuance: May 15, 2002 Certificate No. W-1
THIS IS TO CERTIFY that ALPINE VENTURE CAPITAL PARTNERS LP, a Delaware
limited partnership, and its transferees, successors and assigns (the "Holder"),
for good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, is entitled to purchase from ONCURE TECHNOLOGIES CORP., a
Florida corporation (the "Company"), at the price per share equal to $.75 (as
the same may be adjusted from time to time, the "Exercise Price"), at any time
after the date hereof (the "Commencement Date") and expiring on the fifth
anniversary of the date hereof (the "Expiration Date"), ONE MILLION (1,000,000)
shares of fully paid and nonassessable Common Stock (as such number may be
adjusted as provided herein). The 1,000,000 shares of Common Stock which may be
purchased pursuant to this Warrant are referred to herein as the "Aggregate
Number," as such number may be adjusted as provided herein.
Certain capitalized terms used herein are defined in Section 10 hereof.
Capitalized terms used herein but not otherwise defined herein shall have the
meanings set forth for such terms in the Purchase Agreement. The number of
shares of Common Stock to be received upon the exercise of this Warrant and the
Exercise Price are subject to adjustment from time to time as hereinafter set
forth.
SECTION 1. THE WARRANT; TRANSFER AND EXCHANGE.
(a) The Warrant. This Common Stock Purchase Warrant (this "Warrant") is
issued under and pursuant to the Purchase Agreement. This Warrant and the rights
and privileges of the Holder and the Company hereunder may be exercised by the
Holder in whole or in part as provided herein; shall survive any termination of
the Purchase Agreement; and, as more fully set forth in Section 1(b), may,
subject to the terms and conditions of the Registration Rights Agreement, be
transferred by the Holder to any other Person or Persons at any time or from
time to time, in whole or in part, regardless of whether the Holder retains any
or all rights under the Purchase Agreement.
(b) Transfer and Exchanges. The Company shall initially record this
Warrant on a register to be maintained by the Company with its other stock books
and, subject to Section 9 hereof, from time to time thereafter shall reflect the
transfer of this Warrant on such register when surrendered for transfer in
accordance with the terms hereof and properly endorsed, accompanied by
appropriate instructions, and further accompanied by payment in cash or by
check, bank draft or money order payable to the order of the Company, in United
States currency, of an amount equal to any stamp or other tax or governmental
charge or fee required to be paid in connection with the transfer thereof. Upon
any such transfer, a new warrant or warrants shall be issued to the transferee
and the Holder (in the event the Warrant is only partially transferred) and the
surrendered warrant shall be canceled. This Warrant may be exchanged at the
option of the Holder, when surrendered at the Principal Office of the Company,
for another warrant or other warrants of like tenor and representing in the
aggregate the right to purchase a like number of shares of Common Stock.
SECTION 2. EXERCISE.
(a) Right to Exercise. At any time after the Commencement Date and on
or before the Expiration Date, the Holder, in accordance with the terms hereof,
may exercise this Warrant, in whole at any time or in part from time to time, by
delivering this Warrant to the Company during normal business hours on any
Business Day at the Company's Principal Office, together with the Election to
Purchase, in the form attached hereto as Exhibit A and made a part hereof (the
"Election to Purchase"), duly executed, and payment of the Exercise Price per
share for the number of shares of Common Stock to be purchased (the "Exercise
Amount"), as specified in the Election to Purchase. If the Expiration Date is
not a Business Day, then this Warrant may be exercised on the next succeeding
Business Day.
(b) Payment of Exercise Price. Payment of the Exercise Price shall be
made to the Company as follows (or any combination thereof): (i) in cash or
other immediately available funds, (ii) by surrender to the Company of Notes in
an aggregate amount (including principal and interest accrued thereon) equal to
the Exercise Price, or (iii) as provided in Section 2(c). In the case of payment
of all or a portion of the Exercise Price pursuant to Section 2(c), the
direction by the Holder to make a "Cashless Exercise" shall serve as
accompanying payment for that portion of the Exercise Price. The amount of the
Exercise Price to be paid shall equal the product of (i) the Exercise Amount
multiplied by (ii) the Exercise Price per share.
(c) Cashless Exercise. The Holder shall have the right to pay all or a
portion of the Exercise Price by making a "Cashless Exercise" pursuant to this
Section 2(c), in which case the portion of the Exercise Price to be so paid
shall be paid by reducing the number of shares of Common Stock otherwise
issuable pursuant to the Election to Purchase (the "Exercised Shares") by an
amount (the "Cashless Exercise Shares") equal to (i) the Exercise Price
multiplied by the Exercise Shares and divided by (ii) the Market Price per
share. The number of shares of Common Stock to be issued to the Holder as a
result of a Cashless Exercise will therefore be equal to the Exercised Shares
minus the Cashless Exercise Shares.
(d) Issuance of Shares of Common Stock. Upon receipt by the Company of
this Warrant at its Principal Office in proper form for exercise, and
accompanied by payment of the Exercise Price as aforesaid, the Holder shall be
deemed to be the holder of record of the shares of
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Common Stock issuable upon such exercise, notwithstanding that certificates
representing such shares of Common Stock may not then be actually delivered.
Upon such surrender of this Warrant and payment of the Exercise Price as
aforesaid, the Company shall issue and cause to be delivered with all reasonable
dispatch to, or upon the written order of, the Holder (and in such name or names
as the Holder may designate) a certificate or certificates for the Exercise
Amount, subject to any reduction as provided in Section 2(c) for a Cashless
Exercise.
(e) Fractional Shares. The Company shall not be required to deliver
fractions of shares of Common Stock upon exercise of this Warrant. If any
fraction of a share of Common Stock would be deliverable upon an exercise of
this Warrant, the Company may, in lieu of delivering such fraction of a share of
Common Stock, make a cash payment to the Holder in an amount equal to the same
fraction of the Market Price per share determined as of the Business Day
immediately preceding the date of exercise of this Warrant.
(f) Partial Exercise. In the event of a partial exercise of this
Warrant, the Company shall issue to the Holder a Warrant in like form for the
unexercised portion thereof.
SECTION 3. PAYMENT OF TAXES. The Company shall pay all stamp taxes attributable
to the initial issuance of shares or other securities issuable upon the exercise
of this Warrant or issuable pursuant to Section 6 hereof, excluding any tax or
taxes which may be payable because of the transfer involved in the issuance or
delivery of any certificates for shares or other securities in a name other than
that of the Holder in respect of which such shares or securities are issued.
SECTION 4. REPLACEMENT WARRANT. In case this Warrant is mutilated, lost, stolen
or destroyed, the Company shall issue and deliver in exchange and substitution
for and upon cancellation of the mutilated Warrant, or in lieu of and in
substitution for the Warrant lost, stolen or destroyed, a new Warrant of like
tenor and representing an equivalent right or interest, but only upon receipt of
evidence reasonably satisfactory to the Company of such loss, theft or
destruction of such Warrant and upon receipt of indemnity reasonably
satisfactory to the Company.
SECTION 5. RESERVATION OF COMMON STOCK AND OTHER COVENANTS.
(a) Reservation of Authorized Common Stock. The Company shall at all
times reserve and keep available out of the aggregate of its authorized but
unissued shares, free of preemptive rights, such number of its duly authorized
shares of Common Stock, or other stock or securities deliverable pursuant to
Section 6 hereof, as shall be sufficient to enable the Company at any time to
fulfill all of its obligations under this Warrant.
(b) Affirmative Actions to Permit Exercise and Realization of Benefits.
If any shares of Common Stock reserved or to be reserved for the purpose of the
exercise of this Warrant, or any shares or other securities reserved or to be
reserved for the purpose of issuance pursuant to Section 6 hereof, require
registration with or approval of any governmental authority under any federal or
state law (other than securities laws) before such shares or other securities
may be validly delivered upon exercise of this Warrant, then the Company
covenants that it will, at its sole expense, secure such registration or
approval, as the case may be.
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(c) Regulatory Requirements and Restrictions. In the event of any
reasonable determination by the Holder that, by reason of any existing or future
federal or state law, statute, rule, regulation, guideline, order, court or
administrative ruling, request or directive (whether or not having the force of
law and whether or not failure to comply therewith would be unlawful)
(collectively, a "Regulatory Requirement"), the Holder is effectively restricted
or prohibited from holding this Warrant or the Warrant Shares (including any
shares of capital stock or other securities distributable to the Holder in any
merger, reorganization, readjustment or other reclassification), or otherwise
realizing upon or receiving the benefits intended under this Warrant, the
Company shall, and shall use its reasonable best efforts to have its
shareholders, take such action as the Holder and the Company shall jointly agree
in good faith to be reasonably necessary to permit the Holder to comply with
such Regulatory Requirement. The costs of taking such action, whether by the
Company, the Holder or otherwise, shall be borne by the Holder.
(d) Validly Issued Shares. The Company covenants that all shares of
Common Stock that may be delivered upon exercise of this Warrant, assuming full
payment of the Exercise Price, (including those issued pursuant to Section 6
hereof) shall upon delivery by the Company be duly authorized and validly
issued, fully paid and nonassessable, free from all stamp taxes, liens and
charges with respect to the issue or delivery thereof and otherwise free of all
other security interests, encumbrances and claims of any nature whatsoever other
than such security interests, encumbrances and claims granted by the Holder.
SECTION 6. ADJUSTMENTS. The number and kind of securities issuable upon the
exercise of this Warrant and the Exercise Price shall be subject to adjustment
from time to time in accordance with the following provisions:
(a) Certain Definitions. For purposes of this Section 6:
(i) The term "Additional Shares of Common Stock" shall mean all
shares of Common Stock issued, or deemed to be issued by the Company pursuant to
subsection (f) of this Section 6, after the Original Issue Date except as a
result of (v) the issuance of Warrant Shares upon exercise of this Warrant, (w)
shares of Common Stock issuable upon conversion of the Series C Stock (or any
shares of Preferred Stock into which such shares of Series C Stock are
exchanged), Series D Stock, Series E Stock (or any shares of Preferred Stock
into which such shares of Series E Stock are exchanged) and Series H Stock, (x)
shares of Common Stock issuable upon the exercise of Options (as defined below);
provided that such Options are issued and outstanding as of the Original Issue
Date, and (y) up to 3,000,000 shares of Common Stock issuable upon the exercise
of stock options or other awards made or denominated in shares of Common Stock
granted under the Company's 2001 Stock Option Plan, or any successor plan;
provided that the exercise price of each such stock option and the exercise
price for each other award made or denominated in shares of Common Stock is no
less than the Market Price of the Common Stock on the date of the grant of such
stock option (the "Management Options").
(ii) The term "Convertible Securities" shall mean evidences of
indebtedness, shares of stock or other securities (other than this Warrant)
which are directly or indirectly convertible, exercisable or exchangeable, with
or without payment of additional
4
consideration in cash or property, for shares of Common Stock, either
immediately or upon the onset of a specified date or the happening of a
specified event.
(iii) The term "Options" means any and all rights, options or
warrants to subscribe for, purchase or otherwise in any manner acquire Common
Stock or Convertible Securities.
(b) Subdivision or Combination of Shares. In case outstanding shares of
Common Stock shall be subdivided, the Exercise Price shall be proportionately
reduced as of the effective date of such subdivision, or as of the date a record
is taken of the holders of Common Stock for the purpose of so subdividing,
whichever is earlier. In case outstanding shares of Common Stock shall be
combined, the Exercise Price shall be proportionately increased as of the
effective date of such combination, or as of the date a record is taken of the
holders of Common Stock for the purpose of so combining, whichever is earlier.
(c) Stock Dividends. In case shares of Common Stock are issued as a
dividend or other distribution on the Common Stock, then upon exercise of this
Warrant, the Holder shall be entitled to receive, in addition to the Aggregate
Number, that kind and number of shares of stock which such holder would have
been entitled to receive if the holder had held the Common Stock issuable upon
exercise of this Warrant as of the date a record is taken of the holders of
Common Stock for the purpose of receiving such dividend or other distribution
(or if no such record is taken, as at the earliest of the date of such
declaration, payment or other distribution).
(d) Liquidating Dividends, Etc. In the event the Company shall make a
distribution of its assets to the holders of its Capital Stock as a dividend in
liquidation or by way of return of capital or other than as a dividend payable
out of earnings or surplus legally available for dividends under applicable law,
the Holder shall, upon its exercise, be entitled to receive, in addition to the
number of shares of Common Stock receivable thereupon, and without payment of
any additional consideration therefor, a sum equal to the amount of such assets
as would have been payable to it as owner of that number of shares of Common
Stock receivable by exercise or conversion of this Warrant had it been the
Holder of record of such Common Stock on the record date for such distribution,
or if no such record is taken, as of the date of such distribution, and an
appropriate provision therefor shall be made a part of any such distribution.
(e) Issuance of Additional Shares of Common Stock. If the Company shall
issue any Additional Shares of Common Stock (including Additional Shares of
Common Stock deemed to be issued pursuant to subsection (f) below) after the
Original Issue Date (other than as provided in the foregoing subsections (b) and
(c)), for no consideration or for a consideration per share less than the
Exercise Price on the date of such issue, then in such event and concurrently
with such issue, the Exercise Price shall be reduced to a price equal to the
price paid per share for such Additional Shares of Common Stock.
(f) Deemed Issue of Additional Shares of Common Stock. Except as set
forth in subsection (a) above, if the Company at any time or from time to time
after the Original Issue Date shall issue any Convertible Securities or Options
or shall fix a record date for the determination of holders of any class of
securities then entitled to receive any such Options or
5
Convertible Securities, then the maximum number of shares (as set forth in the
instrument relating thereto without regard to any provisions contained therein
designed to protect against dilution) of Common Stock issuable upon the exercise
of such Options, or, in the case of Convertible Securities and Options therefor,
the conversion or exchange of such Convertible Securities, shall be deemed to be
Additional Shares of Common Stock issued as of the time of such issue of Options
or Convertible Securities or, in case such a record date shall have been fixed,
as of the close of business on such record date, provided that in any such case
in which Additional Shares of Common Stock are deemed to be issued:
(i) no further adjustments in the Exercise Price shall be made upon
the subsequent issue of Convertible Securities or shares of Common Stock upon
the exercise of such Options or the issue of Common Stock upon the conversion,
exercise or exchange of such Convertible Securities;
(ii) if such Options or Convertible Securities by their terms
provide, with the passage of time or otherwise, for any increase or decrease in
the consideration payable to the Company, or increase or decrease in the number
of shares of Common Stock issuable, upon the exercise, conversion or exchange
thereof, the Exercise Price computed upon the original issuance of such Options
or Convertible Securities (or upon the occurrence of a record date with respect
thereto), and any subsequent adjustments based thereon, upon any such increase
or decrease becoming effective, shall be recomputed to reflect such increase or
decrease insofar as it affects such Options or the rights of conversion,
exercise or exchange under such Convertible Securities;
(iii) upon the expiration of any such Options or any rights of
conversion, exercise or exchange under such Convertible Securities which shall
not have been exercised, the Exercise Price computed upon the original issue of
such Options or Convertible Securities (or upon the occurrence of a record date
with respect thereto), and any subsequent adjustments based thereon, shall, upon
such expiration, be recomputed as if:
(A) in the case of Options or Convertible Securities, the only
Additional Shares of Common Stock issued were the shares of Common Stock, if
any, actually issued upon the exercise of such Options or the conversion,
exercise or exchange of such Convertible Securities and the consideration
received therefor was the consideration actually received by the Company (x) for
the issue of all such Options, whether or not exercised, plus the consideration
actually received by the Company upon exercise of the Options or (y) for the
issue of all such Convertible Securities which were actually converted,
exercised or exchanged plus the additional consideration, if any, actually
received by the Company upon the conversion, exercise or exchange of the
Convertible Securities; and
(B) in the case of Options for Convertible Securities, only the
Convertible Securities, if any, actually issued upon the exercise thereof were
issued at the time of issue of such Options, and the consideration received by
the Company for the Additional Shares of Common Stock deemed to have been then
issued was the consideration actually received by the Company for the issue of
all such Options, whether or not exercised, plus the consideration deemed to
have been received by the Company upon the issue of the Convertible Securities
with respect to which such Options were actually exercised.
6
(iv) No readjustment pursuant to clause (ii) or (iii) above shall
have the effect of increasing the Exercise Price to an amount which exceeds the
lower of (x) the Exercise Price on the original adjustment date or (y) the
Exercise Price that would have resulted from any issuance of Additional Shares
of Common Stock between the original adjustment date and such readjustment date.
(v) In the case of any Options which expire by their terms not more
than 90 days after the date of issue thereof, no adjustment of the Exercise
Price shall be made until the expiration or exercise of all such Options,
whereupon such adjustment shall be made in the same manner provided in clause
(iii) above.
(g) Determination of Consideration. For purposes of this Section 6, the
consideration received by the Company for the issue of any Additional Shares of
Common Stock shall be computed as follows:
(i) Cash and Property. Such consideration shall:
(A) insofar as it consists of cash, be the aggregate amount of
cash received by the Company; and
(B) insofar as it consists of property other than cash, be
computed at the fair value thereof at the time of the issue, as determined in
good faith by the vote of a majority of the Board or if the Board cannot reach
such agreement, by a qualified independent public accounting firm, other than
the accounting firm then engaged as the Company's independent auditors.
(h) Options and Convertible Securities. The consideration per share
received by the Company for Additional Shares of Common Stock deemed to have
been issued pursuant to subsection (f) above, relating to Options and
Convertible Securities shall be determined by dividing:
(A) the total amount, if any, received or receivable by the
Company as consideration for the issue of such Options or Convertible
Securities, plus the minimum aggregate amount of additional consideration (as
set forth in the instruments relating thereto, without regard to any provision
contained therein designed to protect against dilution) payable to the Company
upon the exercise of such Options or the conversion, exercise or exchange of
such Convertible Securities, or in the case of Options for Convertible
Securities, the exercise of such Options for Convertible Securities and the
conversion, exercise or exchange of such Convertible Securities, by
(B) the maximum number of shares of Common Stock (as set forth in
the instruments relating thereto, without regard to any provision contained
therein designed to protect against dilution) issuable upon the exercise of such
Options and/or conversion, exercise or exchange of such Convertible Securities.
(i) Other Provisions Applicable to Adjustment Under this Section.
The following provisions shall be applicable to the adjustments in Exercise
Price as provided in this Section 6:
7
(i) Treasury Shares. The number of shares of Common Stock at any
time outstanding shall not include any shares thereof then directly or
indirectly owned or held by or for the account of the Company.
(ii) Other Action Affecting Common Stock. If the Company shall take
any action affecting the outstanding number of shares of Common Stock other than
an action described in any of the foregoing subsections 6(b) through 6(f)
hereof, inclusive, which would have an inequitable effect on the holders of this
Warrant, then the Exercise Price shall be adjusted in such manner and at such
time as the Board may in good faith determine to be equitable in the
circumstances.
(j) Minimum Adjustment. No adjustment of the Exercise Price shall be
made if the amount of any such adjustment would be an amount less than one
percent (1%) of the Exercise Price then in effect, but any such amount shall be
carried forward and an adjustment in respect thereof shall be made at the time
of and together with any subsequent adjustment which, together with such amount
and any other amount or amounts so carried forward, shall aggregate an increase
or decrease of one percent (1%) or more.
(k) Certain Adjustments. The Exercise Price shall not be adjusted
upward except in the event of a combination of the outstanding shares of Common
Stock into a smaller number of shares of Common Stock or in the event of a
readjustment of the Exercise Price pursuant to Section 6(f)(ii) or (iii).
(l) Notices of Adjustments. Whenever the Exercise Price is adjusted as
herein provided, an officer of the Company shall compute the adjusted Exercise
Price in accordance with the foregoing provisions and shall prepare a written
certificate setting forth such adjusted Exercise Price and showing in detail the
facts upon which such adjustment is based, and such written instrument shall
promptly be delivered to the Holder.
(m) Reclassification, Consolidation or Merger. In case of any
reclassification or change of outstanding securities of the class purchasable
upon exercise of this Warrant (other than as set forth in Section 6(b)), or in
case of any consolidation or merger of the Company with or into any other
Person, the Company, or such successor Person, as the case may be, shall execute
a new Warrant providing that the holder of this Warrant shall have the right to
exercise such new Warrant for, in lieu of each share of the Warrant Shares
theretofore purchasable hereunder at such time, the kind and amount of shares of
stock, other securities, money and property receivable upon such
reclassification, change, consolidation or merger by a holder of one share of
the Warrant Shares. Such new Warrant shall provide for adjustments which shall
be as nearly equivalent as may be practicable to the adjustments provided for in
this Section 6. The provisions of this Section 6(m) shall apply similarly to
successive reclassifications, changes, consolidations and mergers.
SECTION 7. NO DILUTION OR IMPAIRMENT. The Company will not, by amendment of its
Articles of Incorporation or through any reorganization, recapitalization,
transfer of assets, consolidation, merger, share exchange, dissolution or any
other voluntary action, avoid or seek to avoid the observance or performance of
any of the terms of this Warrant, including without limitation the adjustments
required under Section 6 hereof, and will at all times in good faith
8
assist in the carrying out of all such terms and in taking of all such action as
may be necessary or appropriate to protect the rights of the Holder against
dilution or other impairment. Without limiting the generality of the foregoing
and notwithstanding any other provision of this Warrant to the contrary
(including by way of implication), the Company (a) will not increase the par
value of any shares of Common Stock receivable on the exercise of this Warrant
above the amount payable therefor on such exercise or (b) will take all such
action as may be necessary or appropriate so that the Company may validly and
legally issue fully paid and nonassessable shares of Common Stock on the
exercise of this Warrant.
SECTION 8. TRANSFERS OF THE WARRANT.
(a) Generally. Subject to the restrictions set forth in this Section 8,
the Holder may at any time and from time to time freely transfer this Warrant
and the Warrant Shares in whole or in part. This Warrant and the Warrant Shares
are issued or issuable subject to the provisions and conditions contained herein
and in the Purchase Agreement and to the provisions and conditions contained in
the Registration Rights Agreement, and every Holder hereof by accepting the same
agrees with the Company to such provisions and conditions, and represents to the
Company that this Warrant has been acquired and the Warrant Shares will be
acquired for the account of the Holder for investment and not with a view to or
for sale in connection with any distribution thereof.
(b) Compliance with Securities Laws. The Holder agrees that the Warrant
and the Warrant Shares may not be sold or otherwise disposed of except pursuant
to an effective registration statement under the Securities Act and applicable
state securities laws or pursuant to an applicable exemption from the
registration requirements of the Securities Act and such state securities laws.
In the event that the Holder transfers this Warrant or the Warrant Shares
pursuant to an applicable exemption from registration, the Company may request,
at its expense, an opinion of counsel that the proposed transfer does not
violate the Securities Act and applicable state securities laws.
(c) Restrictive Securities Legend. The certificate representing the
shares of Common Stock issued upon the exercise of the Warrant shall bear the
restrictive legends set forth below:
"The shares represented by this certificate have not been registered under
the Securities Act of 1933, as amended, or the securities laws of any State
and may not be sold or otherwise disposed of except pursuant to an
effective registration statement under such Act and applicable State
securities laws or pursuant to an applicable exemption from the
registration requirements of such Act and such laws."
SECTION 9. REPRESENTATIONS, WARRANTIES AND COVENANTS.
The Company hereby represents, warrants and covenants to the Holder that so
long as Holder holds the Warrant or any Warrant Shares:
9
(a) Reservation of Shares. The Company shall at all times reserve and
keep available out of the aggregate of its authorized but unissued shares, free
of preemptive rights, such number of its duly authorized shares of Common Stock
as shall be sufficient to enable the Company to issue Common Stock upon exercise
of the Warrant.
(b) Certain Amendments. The Company will not, and will not permit or
cause any of its Subsidiaries to amend, modify or change any provision of its
Articles of Incorporation, Bylaws or the terms of any class or series of its
Capital Stock to the extent such amendment, modification or change would have a
disproportionate adverse effect on the Holder as compared to any other holder of
the Common Stock of the Company and directly or indirectly, create or otherwise
cause or suffer to exist or become effective any restriction or encumbrance on
the ability of the Company and any such Subsidiaries to perform and comply with
their respective obligations under the Warrant.
(c) Limitation on Certain Restrictions. The Company will not, and will
not permit or cause any of its Subsidiaries to, directly or indirectly, create
or otherwise cause or suffer to exist or become effective any restriction or
encumbrance on the ability of the Company and any such Subsidiaries to perform
and comply with their respective obligations under this Warrant.
SECTION 10. DEFINITIONS.
As used herein, in addition to the terms defined elsewhere herein, the
following terms shall have the following meanings.
"Affiliate" means, with respect to any Person, a Person (a) directly or
indirectly controlling, controlled by, or under common control with, such
Person, (b) directly or indirectly owning or holding ten percent (10%) or more
of any Equity Interest in such Person or (c) ten percent (10%) or more of whose
voting stock or other Equity Interest is directly or indirectly owned or held by
such Person. For purposes of this definition, "control" (including with
correlative meanings, the terms "controlling," "controlled by" and "under common
control with") 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 the ownership of voting securities, by contract or otherwise.
"Aggregate Number" has the meaning set forth in the Preamble.
"Articles of Incorporation" means, as to a Person, unless the context in
which it is used shall otherwise require, the Articles of Incorporation (or
equivalent or similar organizational documents) of such Person as in effect on
the date hereof.
"Business Day" means any day other than a Saturday, Sunday or other day on
which commercial banks in The City of New York are authorized or required by law
or executive order to close.
"Capital Stock" means (i) with respect to any Person that is a corporation,
any and all shares, interests or equivalents in capital stock (whether voting or
nonvoting, and whether
10
common or preferred) of such corporation, and (ii) with respect to any Person
that is not a corporation, any and all partnership, membership, limited
liability company or other equity interests of such Person that confer on a
Person the right to receive a share of the profits and losses of, or the
distribution of assets of, the issuing Person; and in each case, any and all
warrants, rights or options to purchase any of the foregoing.
"Commencement Date" has the meaning set forth in the Preamble.
"Commission" means the Securities and Exchange Commission or any similar
agency then having jurisdiction to enforce the Securities Act.
"Common Stock" means the common stock, par value $.001 per share, of the
Company or any other Capital Stock of the Company into which such stock is
reclassified or reconstituted.
"Company" has the meaning set forth in the Preamble.
"Convertible Securities" has the meaning set forth in Section 6.
"Election to Purchase" has the meaning set forth in Section 2(a).
"Exchange Act" means the Securities Exchange Act of 1934, as amended, or
any similar federal statute and the rules and regulations thereunder as the same
shall be in effect at the time.
"Exercise Amount" has the meaning set forth in Section 2(a).
"Exercise Price" has the meaning set forth in the Preamble.
"Expiration Date" has the meaning set forth in the Preamble.
"Governmental Authority" means the government of any nation, state, city,
locality or other political subdivision of any thereof, any entity or person
exercising executive, legislative, judicial, arbitral, regulatory or
administrative functions of or pertaining to government, regulation or
compliance.
"Holder" or "Holders" means any holder of an interest in the Warrant or the
outstanding Warrant Shares.
"Market Price" means, with respect to the shares of Common Stock, (a) if
the shares are listed or admitted for trading on any national securities
exchange or included in The Nasdaq National Market or Nasdaq SmallCap Market,
the last reported sales price as reported on such exchange or Market; (b) if the
shares are not listed or admitted for trading on any national securities
exchange or included in The Nasdaq National Market or Nasdaq SmallCap Market,
the average of the last reported closing bid and asked quotation for the shares
as reported on the National Association of Securities Dealers Automated
Quotation System ("NASDAQ") or a similar service if NASDAQ is not reporting such
information; (c) if the shares are not listed or admitted for trading on any
national securities exchange or included in The Nasdaq National
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Market or Nasdaq SmallCap Market or quoted by NASDAQ or a similar service, the
average of the last reported bid and asked quotation for the shares as quoted by
a market maker in the shares (or if there is more than one market maker, the bid
and asked quotation shall be obtained from two market makers and the average of
the lowest bid and highest asked quotation). In the absence of any available
public quotations for the Common Stock, the Company's Board of Directors shall
determine in good faith the fair value of the Common Stock, which determination
shall be set forth in a certificate by the Secretary of the Corporation.
"Material Adverse Effect" means a material adverse effect on the assets,
business, properties, operations, condition (financial or otherwise) or
prospects of the Company, individually, or the Company and its Subsidiaries,
taken as a whole.
"Notes" means the Convertible Promissory Note, dated the date hereof, by
and between the Company and the Holder, as amended or supplemented from time to
time.
"Options" shall have the meaning set forth in Section 6.
"Original Issue Date" means May 15, 2002.
"Person" means any individual, firm, corporation, partnership, limited
liability company, joint venture, incorporated or unincorporated association,
joint stock company, Governmental Authority, or other entity of any kind, and
shall include any successor (by merger or otherwise) of such entity.
"Preferred Stock" means shares of preferred stock, par value $.001 per
share, of the Company.
"Principal Office" means the 0000 Xxxx Xxxxx Xxxx, Xxxxx 0, Xxxxxxx, XX
00000, or such other principal office of the Company in the United States of
America the address of which first shall have been set forth in a notice to the
Holder.
"Purchase Agreement" means the Purchase Agreement, dated the date hereof,
by and between the Company and the Holder, as amended or supplemented from time
to time.
"Regulatory Requirement" has the meaning set forth in Section 5(c).
"Requirements of Law" means, with respect to a Person, the Articles of
Incorporation and Bylaws or other organizational or governing documents of such
Person, or any law, treaty, code, rule, regulation, right, privilege,
qualification, license or franchise or determination of any Governmental
Authority, in each case applicable or binding upon such Person or any of such
Person's property or to which such Person or any of such Person's property is
subject or pertaining to any or all of the transactions contemplated or referred
to herein.
"Securities Act" means the Securities Act of 1933, as amended, or any
similar federal statute, and the rules and regulations thereunder as the same
shall be in effect at the time.
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"Series C Stock" means the shares of the Series C Cumulative Accelerating
Redeemable Preferred Stock, par value $0.001 per share, of the Company.
"Series D Stock" means the shares of the Series D Cumulative Accelerating
Redeemable Preferred Stock, par value $0.001 per share, of the Company.
"Series E Stock" means the shares of the Series E Cumulative Accelerating
Redeemable Preferred Stock, par value $0.001 per share, of the Company.
"Series H Stock" means the shares of the Series H Cumulative Accelerating
Redeemable Preferred Stock, par value $0.001 per share, of the Company.
"Subsidiary(ies)" means, with respect to any Person, a corporation,
partnership, limited liability company or other entity of which shares of stock
or other ownership interests having ordinary voting power (other than stock or
such other ownership interests having such power only by reason of the happening
of a contingency) to elect a majority of the board of directors or other
managers of such corporation, partnership or other entity are at the time owned,
or the management of which is otherwise controlled, directly or indirectly
through one or more intermediaries, or both, by such Person.
"Warrant" has the meaning set forth in Section 1(a).
"Warrant Securities" means the Warrant and the Warrant Shares,
collectively.
"Warrant Shares" means (a) the shares of Common Stock issued or issuable
upon exercise of this Warrant in accordance with its terms and (b) all other
shares of the Company's capital stock issued with respect to such shares by way
of stock dividend, stock split or other reclassification or in connection with
any merger, consolidation, recapitalization or other reorganization affecting
the Company's capital stock.
SECTION 11. DELAYS, OMISSIONS AND INDULGENCES. It is agreed that no delay or
omission to exercise any right, power or remedy accruing to the Holder upon any
breach or default of the Company under this Warrant shall impair any such right,
power or remedy, nor shall it be construed to be a waiver of any such breach or
default, or any acquiescence therein, or of or in any similar breach or default
thereafter occurring; nor shall any waiver of any single breach or default be
deemed a waiver of any other breach or default theretofore or thereafter
occurring. It is further agreed that any waiver, permit, consent or approval of
any kind or character on the Holder's part of any breach or default under this
Warrant, or any waiver on the Holder's part of any provisions or conditions of
this Warrant must be in writing and that all remedies, either under this
Warrant, or by law or otherwise afforded to the Holder, shall be cumulative and
not alternative.
SECTION 12. RIGHTS OF TRANSFEREES. The rights granted to the Holder hereunder of
this Warrant shall pass to and inure to the benefit of all subsequent
transferees of all or any portion of the Warrant (provided that the Holder and
any transferee shall hold such rights in proportion to
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their respective ownership of the Warrant and Warrant Shares) until extinguished
pursuant to the terms hereof.
SECTION 13. NOTICES. All notices, demands and other communications provided for
or permitted hereunder shall be made in writing and shall be by registered or
certified first-class mail, return receipt requested, telecopy, overnight
courier service or personal delivery:
To Company: OnCure Technologies Corp.
0000 Xxxx Xxxxx Xxxx, Xxxxx 0
Xxxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxxx
Fax: (000) 000-0000
With a copy to:
Xxxxx X. Xxxxxxxxx, Esq.
Xxxxxxx Berlin Xxxxxxx Xxxxxxxx, LLP
The Chrysler Building
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Fax: (000) 000-0000
To Holder: Alpine Venture Capital Partners LP
Xxx Xxxxx Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxx Xxxx Xxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxx
Fax: (000) 000-0000
With a copy to:
Xxxxx X. Xxxxxxx, Esq.
Xxxxxxx & Xxxxxx, LLP
Xxx Xxxxx Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxx Xxxx Xxxxx, XX 00000
Fax: (000) 000-0000
All such notices and communications shall be deemed to have been duly
given: when delivered by hand, if personally delivered; when delivered by
courier, if delivered by commercial overnight courier service; five Business
Days after being deposited in the mail, postage prepaid, if mailed; and when
receipt is acknowledged, if telecopied.
SECTION 14. SUCCESSORS AND ASSIGNS. This Warrant shall be binding upon and inure
to the benefit of the parties hereto and their respective successors or heirs
and personal representatives and permitted assigns; provided, that the Company
shall have no right to assign its rights, or to delegate its obligations,
hereunder without the prior written consent of the Holder.
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SECTION 15. GOVERNING LAW. This Warrant is to be construed and enforced in
accordance with and governed by the laws of the State of Florida and without
regard to the principles of conflicts of law of such state. EACH PARTY HEREBY
IRREVOCABLY CONSENTS TO THE JURISDICTION OF ANY STATE OR FEDERAL COURT SITTING
IN PALM BEACH COUNTY, FLORIDA IN ANY ACTION OR PROCEEDING ARISING OUT OF OR
RELATING TO THIS AGREEMENT AND/OR ANY RELATED AGREEMENT, AS WELL AS TO THE
JURISDICTION OF ALL COURTS TO WHICH AN APPEAL MAY BE TAKEN FROM SUCH COURTS.
SECTION 16. SEVERABILITY. If any one or more of the provisions contained herein,
or the application thereof in any circumstance, is held invalid, illegal or
unenforceable in any respect for any reason, the validity, legality and
enforceability of any such provision in every other respect and of the remaining
provisions hereof shall not be in any way impaired, unless the provisions held
invalid, illegal or unenforceable shall substantially impair the benefits of the
remaining provisions hereof. The parties hereto further agree to replace such
invalid, illegal or unenforceable provision of this Agreement with a valid,
legal and enforceable provision that will achieve, to the extent possible, the
economic, business and other purposes of such invalid, illegal or unenforceable
provision.
SECTION 17. ENTIRE AGREEMENT. This Warrant, together with the Note, the
Registration Rights Agreement and the Purchase Agreement, contains the entire
agreement among the parties with respect to the subject matter hereof and
thereby supercedes all prior and contemporaneous agreements or understandings
with respect thereto.
SECTION 18. HEADINGS. The headings in this Warrant are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
SECTION 19. AMENDMENT. Amendments and Modifications of this Warrant may be made
only in the manner provided in Section 4.4 of the Purchase Agreement.
SECTION 20. NO STRICT CONSTRUCTION. The Company and the Holder each acknowledge
that they have been represented by counsel in connection with this Warrant. The
Company and the Holder have participated jointly in the negotiation and drafting
of this Warrant. In the event an ambiguity or question of intent or
interpretation arises under any provision of this Warrant, this Warrant shall be
construed as if drafted jointly by the parties thereto, and no presumption or
burden of proof shall arise favoring or disfavoring any party by virtue of the
authorship of any of the provisions of this Warrant.
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IN WITNESS WHEREOF, the Company has caused this Warrant to be issued and
executed in its corporate name by its duly authorized officers and its corporate
seal to be affixed hereto as of the date below written.
DATED: May 15, 2002 ONCURE TECHNOLOGIES CORP.
[CORPORATE SEAL] By: /s/ Xxxxxxx X. Xxxxxxx
----------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: President and Chief Executive
Officer
ATTEST:
By:
---------------------------
Name:
-------------------------
Title:
------------------------
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