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Exhibit 10.20
TRANSFER AGREEMENT
This Transfer Agreement (the "Agreement") is made and entered into as
of the 31st day of July, 1997, by and among Radiation Therapy Regional Centers,
Inc., a Florida corporation (the "Holding Company"), Xxxxxx X. Xxxxxxxx, M.D.
("Dosoretz"), Xxxxxxx X. Xxxxx, M.D. ("Xxxxx"), Xxxxx X. Xxxxxxx, M.D.
("Blitzer"), Xxxxx X. Xxxxxxxxxx, M.D. ("Xxxxxxxxxx"), Xxxxxx X. Xxxxxxxx, M.D.
("Sheridan") and Xxxxxxxx X. Xxxxxx, M.D. ("Xxxxxx") (Dosoretz, Katin, Blitzer,
Rubenstein, Sheridan and Xxxxxx are hereinafter collectively referred to as the
"Shareholders" and individually as a "Shareholder").
WHEREAS, the Shareholders currently own all of the outstanding shares
of stock of the Holding Company;
WHEREAS, the Shareholders are, collectively, the owners of all of the
outstanding shares of stock (the "Shares") of the Florida corporations listed in
Exhibits A and B, attached hereto and incorporated herein (the "Corporations")
and all of the interests (the "Interests") in the Florida general partnerships
listed in Exhibit C, attached hereto and incorporated herein (the
"Partnerships"), and each Shareholder individually owns the Shares and Interests
as specified in Exhibit D, attached hereto and incorporated herein;
WHEREAS, the Shareholders desire to acquire additional shares of the
Holding Company by exchanging the Shares and the Interests for shares of the
Holding Company;
WHEREAS, the Holding Company desires to acquire all of the Shares, by
exchanging shares of the Holding Company for the Shares, with the result being
that all of the Corporations will be wholly owned subsidiaries of the Holding
Company;
WHEREAS, the Holding Company desires to acquire all of the assets of
the Partnerships, by exchanging shares of the Holding Company for the Interests,
with the result being that the Partnerships shall cease to be partnerships as
defined by Section 620.585 of the Florida Statutes and any and all assets of the
Partnerships shall belong to the Holding Company;
WHEREAS, the Holding Company desires to acquire all of the assets of
RTA Limited Partnership ("RTA"), a Florida limited partnership, in which certain
of the Shareholders are the limited partners, and in which J.S.P. Radiation
Therapy, Inc., M.L.F. Radiation Therapy, Inc., P.T. Radiation Therapy, Inc.,
S.M.A. Radiation Therapy, Inc., U.A. Radiation Therapy, Inc. (collectively, the
"RTA Corporations"), are the general partners, by exchanging the shares of the
Holding Company for the Shareholders' interests in RTA, and by exchanging shares
of the Holding Company for the shares of the RTA Corporations, and by
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merging the Corporations, including the RTA Corporations, pursuant to the Plan
of Reorganization described herein, with the result that RTA shall cease to be a
partnership as defined by Section 620.585 of the Florida Statutes and any and
all assets of RTA shall belong to the Holding Company and the RTA Corporations
will be wholly owned subsidiaries of the Holding Company; and
WHEREAS, the Shareholders and the Holding Company desire to merge the
Corporations listed in Exhibit A (the "Merging Corporations") into a single
entity (the "Subsidiary"), pursuant to the Plan of Reorganization described
herein, such entity to be a wholly owned subsidiary of the Holding Company; and
WHEREAS, the Shareholders and the Holding Company desire to contribute
all of the assets previously owned by the Partnerships and RTA to the Subsidiary
as a contribution to capital;
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties agree as follows:
1. TRANSFER. Each of the Shareholders hereby transfers, conveys and
assigns all right, title and interest in and to the Shares and Interests owned
by such Shareholders to the Holding Company in exchange for such additional
common shares of the Holding Company as set forth below:
Dosoretz 1,893,796
Xxxxx 1,670,386
Blitzer 1,601,338
Xxxxxxxxxx 1,470,540
Sheridan 1,316,040
Xxxxxx 47,600
The Shareholders acknowledge and agree that the good faith
determination of the Board of Directors of the Holding Company as to the number
of shares to be issued to the Shareholders in accordance with the terms of this
Agreement shall be binding on the Shareholders. Each Shareholder, concurrent
with the execution of this Agreement, shall execute and deliver any and all
necessary and appropriate documents and instruments, including but not limited
to stock powers duly executed in blank, share certificates duly endorsed in
blank, and assignments of partnership certificates duly endorsed in blank, in
order to transfer his or her respective Shares and Interests to the Holding
Company.
2. REPRESENTATIONS AND WARRANTIES. Each of the Shareholders represents,
warrants, agrees and acknowledges, with respect only to the Shares and Interests
owned by such Shareholders and the shares of Holding Company being acquired by
such Shareholders, as follows:
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(a) Shareholder is the owner of the Shares and Interests as set
forth in the recitals hereto free and clear of any
encumbrances, pledges or liens, and Shareholder has good and
marketable title to such Shares and Interests;
(b) Shareholder has executed or endorsed in blank and delivered
all stock certificates, stock powers, partnership certificates
and any other instruments of conveyance necessary to transfer
and assign to the Holding Company such Shares and Interests,
as set forth in the recitals hereto;
(c) The shares of the Holding Company have not been registered
under the Securities Act of 1933 and, accordingly, may not be
offered for sale, sold, or otherwise transferred except
(i) upon effective registration of said shares under the
Securities Act of 1933 and the applicable "blue sky" laws of
any jurisdictions, or (ii) upon acceptance by the Holding
Company of an opinion of counsel of recognized stature or of
a no-action letter from the staff of the U.S. Securities and
Exchange Commission, in form reasonably satisfactory to Xxxx,
Stettinius & Hollister or another mutually acceptable counsel
for the Holding Company, that such registration is not
required for the offer or sale of the shares in the manner
proposed;
(d) The shares of the Holding Company are being acquired only for
Shareholder's account and not on behalf of any other person or
persons;
(e) The shares of the Holding Company are being acquired by
Shareholder for the purpose of holding for investment and not
with a view to any further distribution (within the meaning of
Section 2(11) of the Securities Act of 1933) thereof;
(f) Shareholder has no agreement, arrangement or understanding for
transfer of any of said shares or any interest therein to any
other person or persons;
(g) Shareholder shall not offer for sale or sell any of said
shares or any interest therein except (i) upon effective
registration of said shares under the Securities Act of 1933
or (ii) upon acceptance by the Holding Company of an opinion
of counsel for the purchaser in such form as is satisfactory
to counsel for the Holding Company that registration is not
required.
(h) Shareholder (i) either has such knowledge and experience in
financial and business matters, or had the advice or
representation of a person having such
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knowledge and experience, to be able to evaluate the merits
and risks of an investment in such shares of such an issuer or
has been given or had access to sufficient information
regarding the Holding Company to evaluate the investments in
the Holding Company's shares being acquired, and (ii) is able
to bear the economic risk of the investment in the Holding
Company's shares and to hold the same for purposes of
investment;
(i) Shareholder is aware that no market may exist for the
resale of said shares;
(j) Shareholder is aware of any and all restrictions imposed by
the Holding Company on the distribution of said shares,
including, but not limited to, any restrictive legends
appearing on the certificate;
(k) Shareholder has received full access to all books and records
of the Holding Company; has had an opportunity to ask
questions and receive answers from a person or persons acting
on behalf of Holding Company and has been supplied with any
and all information requested;
(l) Shareholder agrees to indemnify and save harmless the Holding
Company, its officers, directors, agents and employees from
any and all liabilities, claims, demands, suits or proceedings
arising out of any breach or alleged breach of any of the
foregoing representations, agreements and warranties; and
(m) Shareholder hereby waives any and all claims, liabilities,
damages, losses, actions and causes of action arising out of
any failure to comply with filing or other requirements in
connection with the issuance of the shares of the Holding
Company to the Shareholders, including, but not limited to
any such requirements under federal securities laws and state
"blue sky" laws.
3. PLAN OF REORGANIZATION. The Shareholders and the Holding Company
agree and acknowledge that subsequent to the transfer of the Shares and
Interests to the Holding Company in exchange for shares of the Holding Company,
the Holding Company shall become the sole shareholder of each of the
Corporations, and the Merging Corporations shall be merged into the Subsidiary,
a wholly owned subsidiary of the Holding Company. The Subsidiary shall be formed
by merging the Merging Corporations, other than Xxxxx Xxxxxxxx Radiation Therapy
Associates, Inc. ("Xxxxx Dosoretz"), into Xxxxx Xxxxxxxx, with Xxxxx Xxxxxxxx
concurrently amending its Articles of Incorporation to change its name to 21st
Century Oncology, Inc. ("21st Century"), and with 21st Century as the
Subsidiary. The merger shall be accomplished by
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the adoption of a Plan of Merger by the Holding Company's Board of Directors,
pursuant to Section 607.1104 of the Florida Statutes, and Articles of Merger
shall be executed by an officer of the Corporations and filed with the Florida
Secretary of State, pursuant to Section 607.1105 of the Florida Statutes. The
Shareholders hereby agree to obtain any and all consents necessary to effectuate
the Plan of Reorganization described in this Section from lenders, lessors and
other third parties. The Corporations set forth on Exhibit B (the "Other
Corporations") shall not be merged into 21st Century but shall become additional
subsidiaries of the Holding Company as a result of paragraph 1 of this
Agreement.
4. CONTRIBUTION TO CAPITAL. The Holding Company shall transfer all of
the assets of the Partnerships and of RTA to the Subsidiary as a contribution to
capital.
5. EXECUTION OF DEEDS BY THE PARTNERSHIPS. The effect of this Agreement
is to transfer all interests in real property, including all fixtures, owned by
the Partnerships and RTA prior to this Agreement (the "Real Property") first to
the Holding Company (pursuant to paragraph 1) and then to the Subsidiary
(pursuant to paragraph 4). The Shareholders, prior to the dissolution of the
Partnerships and RTA, in consideration for the issuance of the shares of the
Holding Company and in conjunction with the transfer of the Shares and Interests
to the Holding Company, shall cause the Partnerships and RTA to convey the Real
Property owned by the Partnerships and RTA, and to assign the Real Property
leasehold interests, to the Subsidiary.
6. TRANSFER OF TRADE NAMES. The Subsidiary shall take any and all steps
necessary to maintain the trade names of the Corporations for use by the
Subsidiary. The Shareholders, in conjunction with the Plan of Reorganization
described herein, shall execute any and all documents necessary to transfer all
of the trade names used or owned by the Corporations to the Surviving Entity.
7. SEVERABILITY. If any term, provision, covenant, or restriction of
this Agreement is held by a court of competent jurisdiction to be invalid, void,
or unenforceable, the remainder of the terms, provisions, covenants, and
restrictions of this Agreement shall remain in full force and effect and shall
in no way be affected, impaired, or invalidated.
8. GOVERNING LAW. This Agreement shall be governed by the internal
substantive laws of the State of Florida without regard to conflicts of laws
principles.
9. ENTIRE AGREEMENT. This Agreement, all Exhibits hereto and all
certificates and other instruments delivered in connection herewith constitute
the entire agreement among the parties and supersede all prior and
contemporaneous oral and
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written representations, agreements, and undertakings among the parties hereto
with respect to the subject matter hereof.
10. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original, but all of which shall
constitute one and the same instrument.
11. CAPTIONS. The captions in this Agreement are for convenience of
reference only and shall not be given any effect in the interpretation of this
Agreement.
12. NO WAIVER. The failure of a party to insist upon strict adherence
to any obligation of this Agreement shall not be considered a waiver or deprive
that party of the right thereafter to insist upon adherence to that term or any
other term of this Agreement. Any waiver must be in writing.
13. ASSIGNMENT. No party may assign its rights and obligations under
this Agreement without obtaining the prior written consent of the other parties
(which consent may be withheld by such parties in their sole and absolute
discretion).
14. AGREEMENT BINDING ON HEIRS AND ASSIGNS. The provisions of this
Agreement shall inure to the benefit of and bind the executors, heirs,
successors and assigns of Seller and Buyers.
The undersigned have executed this Agreement as of the date first above
written.
RADIATION THERAPY REGIONAL
CENTERS, INC.
By: /s/ G. Xxxxx Xxxxxxxxx
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Name: G. Xxxxx Xxxxxxxxx
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Title: Asst. Secretary
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/s/ Xxxxxx Xxxxxxxx /s/ Xxxxx Xxxxxxx
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Xxxxxx X. Xxxxxxxx, M.D. Xxxxx X. Xxxxxxx, M.D.
/s/ Xxxxxxx Xxxxx /s/ Xxxxx Xxxxxxxxxx
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Xxxxxxx X. Xxxxx, M.D. Xxxxx X. Xxxxxxxxxx, M.D.
/s/ Xxxxxx Xxxxxxxx /s/ Xxxxxxxx X. Xxxxxx
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Xxxxxx X. Xxxxxxxx, M.D. Xxxxxxxx X. Xxxxxx, M.D.
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EXHIBIT A: MERGING CORPORATIONS
1. Boca Raton Radiation Therapy Regional Center, Inc
2. Central Radiation Therapy Institute, Inc.
3. Charlotte County Radiation Therapy Regional Center, Inc.
4. Xxxxxxx Radiation Therapy Regional Center, Inc.
5. Coral Springs Radiation Therapy Regional Center, Inc.
6. Englewood Radiation Therapy Regional Center, Inc.
7. Hollywood Radiation Associates, Inc.
8. J.S.P. Radiation Therapy, Inc.
9. Xxxxx Dosoretz Radiation Therapy Associates, Inc.
10. M.L.F. Radiation Therapy, Inc.
11. Medical Center Radiation Therapy Regional Center, Inc.
12. P.T. Radiation Therapy, Inc.
13. Palm Beach Radiation Therapy Regional Center, Inc.
14. Palmetto Radiation Therapy Associates, Inc.
15. S.M.A. Radiation Therapy, Inc.
16. Sarasota Radiation Therapy Regional Center, Inc.
17. Southeast Florida Radiation Therapy Regional Center, Inc.
18. U.A. Radiation Therapy, Inc.
19. West Boca Radiation Associates, Inc.
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EXHIBIT B: OTHER CORPORATIONS
1. Financial Services of Southwest Florida, Inc.
2. Radiation Therapy School for Radiation Therapy Technology,
Inc.
3. Radiation Therapy Services, Inc.
4. Southwest Florida Equipment, Inc.
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EXHIBIT C: PARTNERSHIPS
1. Arcadia Radiation Associates
2. ARJO Properties
3. Cape Coral Radiation Associates
4. Englewood Radiation Associates
5. Lakes Park Associates
6. Lehigh Radiation Associates
7. Metro Radiation Associates
8. Naples Radiation Associates
9. Port Charlotte Expansion
10. Punta Gorda Building Associates
11. Radiation Billing Associates
12. Sarasota Radiation Associates
