Exhibit 10.67


 


TRANSITION AGREEMENT AND STOCK PLEDGE


 


This Transition Agreement
and Stock Pledge (this “Agreement”) is made as of June 1, 2005, by and
between Massachusetts Oncology Services, P.C., a Massachusetts professional
corporation (“Manager); New England Radiation Therapy Manager, Inc., a
Massachusetts corporation (the “P.C.”); Daniel E. Dosoretz, M.D. and Michael
Katin, M.D. (the “Current Shareholders”).


 


RECITALS


 


A.                     The P.C. and
Manager have entered into a Management Services Agreement, effective June 1,
2005 (the “MSA”), pursuant to which the P.C. engaged Manager to provide certain
administrative services in connection with the P.C.’s provision of medical
services in Massachusetts (the “State”).


 


B.                       The Current
Shareholders own all of the issued and outstanding shares of the captive stock
of the P.C.


 


C.                       The parties
hereto believe it to be in their best interest to make provision for the future
disposition of all of the shares of the capital stock of the P.C. whether
currently issued and outstanding or issued at any time hereafter (the “Shares”).


 


D.                      The Current
Shareholders may desire to issue or transfer Shares to qualified shareholders
satisfactory to and approved by Manager (together with the Current Shareholder
the “Shareholders”), upon such Shareholders becoming licensed to practice
medicine in the State, and provided that each or all, as applicable, execute an
agreement in substantially the same form as this Agreement.


 


E.                        The Current
Shareholders desire to pledge the Shares to secure the covenants made in this
Agreement, and Manager desires to accept such security interest.


 


NOW, THEREFORE, for and in
consideration of the mutual agreements, terms, covenants and conditions
contained herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree as follows:


 


1.                          Definitions.


 


1.1                   “Shareholder
Event of Transfer” means any one or more of the following events:


 


(a)                     The transfer of
any Shares by any Shareholder, including any sale, assignment, conveyance, gift
or any other form of disposition or transfer, voluntary or involuntary,
including transfers by bequest or inheritance, without the approval of Manager;


 


(b)                    Loss of a
Shareholder’s license to practice medicine in the State for any reason;


 


(c)                     A Shareholder
is adjudicated incompetent;


 

















 


(d)                    A Shareholder
becomes insolvent by reason of an inability to pay debts as they mature; files
a petition in bankruptcy, reorganization or similar proceeding under the
bankruptcy laws of the United States or has such a petition filed against a
Shareholder which is not discharged within thirty (30) days; has a receiver or
other custodian, permanent or temporary, appointed for the business, assets or
property of a Shareholder; has bank accounts, property or accounts of a
Shareholder’s attached; has execution levied against business or property of a
Shareholder; makes an assignment for the benefit of creditors; or a Shareholder
has any Shares attached or levied upon for the payment of debts;


 


(e)                     Any
representation or covenant contained in this Agreement is breached by a
Shareholder; or


 


(f)                       For any reason
a Shareholder no longer meets the qualifications to be a shareholder of a
professional corporation in the State.


 


The parties hereby agree and
acknowledge that any non-breaching Shareholders may cure a Shareholder Event of
Transfer by purchasing all of the Shares of a Shareholder who has caused any of
such Shareholder Events of Transfer to occur, within thirty (30) days of such
Event.


 


1.2                   “P.C. Event of
Transfer” means any one of the following events:


 


(a)                     There is a
Default (as defined in Section 12) under the MSA by the P.C. which is not
cured within any applicable cure periods stated in the MSA; or


 


(b)                    Any
representation or covenant contained in this Agreement is breached by the P.C.


 


1.3                   “Transferee”
means a physician licensed to practice medicine in the State, or a professional
corporation qualified to practice medicine in the State, chosen by Manager.


 


2.                          Grant of
Security Interest. Each Shareholder grants to Manager a security
interest in the Shares to secure the Shareholder’s obligations set forth in Section 3.


 


3.                          General
Restriction on Transfer. No Shareholder shall sell, transfer,
encumber, pledge, will, or otherwise dispose of such Shareholder’s Shares, or
allow such Shareholder’s Shares to pass under the intestate laws or by
operation of law, except as provided in this Agreement. If any Shares or any
rights therein are transferred contrary to this Agreement, Manager retains a
security interest in such Shares and in the proceeds of such disposition.


 


4.                          Conditional
Agreement to Transfer Stock. Except where the
non-breaching Shareholders cure a Shareholder Event of Transfer as provided in Section 1.1
above, all Shareholders shall immediately transfer the Shares as set forth in
this Agreement for the Purchase Price set forth in Section 7 below upon
the occurrence of a P.C. Event of Transfer or upon the occurrence of a
Shareholder Event of Transfer.


 


5.                          Transfers by
Shareholders. If a Shareholder Event of Transfer occurs, then
the P.C. and any Shareholder aware of such Shareholder Event of Transfer, the


 


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Shareholder’s legal
representative or a lien creditor of the Shareholder exercising its remedies
with respect to such Shareholder (in any case, the “Transferring Shareholder”)
shall give the P.C., Manager and each of the other Shareholders written notice
thereof within five (5) days of such Shareholder Event of Transfer (the “Notice”).


 


5.1                   During the
period commencing on the date the Notice is given and ending thirty (30) days
thereafter (the “Shareholders’ Option Period”), the Shareholders other than the
Transferring Shareholder shall, in relative proportion to the respective
ownership of Shares of such Shareholders who desire to exercise their option,
have the exclusive right (but not the obligation) to acquire all or a portion
of the Transferring Shareholder’s Shares at the pro rata Purchase Price
determined pursuant to Section 7 hereof. Said Shareholders may exercise
this option by delivering, within the Shareholders’ Option Period, to the
Transferring Shareholder, Manager and the P.C. a writing stating that said
Shareholders have elected to acquire all or such specified number or proportion
of the Transferring Shareholder’s Shares not later than ninety (90) days after
the date of the Notice. If not all Shareholders (other than the Transferring
Shareholder) elect to acquire the Transferring Shareholder’s Shares, the
Shareholders that have elected to acquire the Transferring Shareholder’s Shares
may acquire the Transferring Shareholder’s Shares in relative proportion to
their respective ownership of Shares (not counting Shares held by the
Transferring Shareholder or by Shareholders who have not elected to acquire the
Transferring Shareholder’s Shares).


 


5.2                   If the
Shareholder’s Option Period shall have expired without the election by any of
the Shareholders to acquire any and all of the Transferring Shareholder’s
Shares, then, for a period of thirty (30) days commencing thirty-one (31) days
after the date of the Notice (the “P.C, Option Period”), the P.C. shall have
the exclusive right (but not the obligation) to acquire all or a portion the
Transferring Shareholder’s Shares at the pro rata Purchase Price. The P.C. may
exercise its option by delivering, within the P.C. Option Period, to each of
the Shareholders and Manager a writing stating that the P.C. has elected to
acquire all or such specified number or proportion of the Transferring Shareholder’s
Shares no later than ninety (90) days after the date of the Notice.


 


5.3                   If, but only
if, the Shareholder’s Option Period and the P.C. Option Period shall have
expired without the election by any of the Shareholders other than the
Transferring Shareholder or the P.C. to acquire all of a Transferring
Shareholder’s Shares, then Manager shall designate a Transferee to purchase the
Shares which are not being purchased pursuant to Sections 5.1 and 5.2 above.


 


6.                          Transfer on
P.C. Event of Transfer. If a P.C. Event of Transfer occurs, Manager
shall designate a Transferee to purchase all of the Shares of the P.C. within
thirty (30) days of Management Service’s discovery of the occurrence of a P.C.
Event of Transfer.


 


7.                          Payment of
Purchase Price. The purchase price for any transfer of the Shares
(the “Purchase Price”) shall be an amount equal to the fair market value of the
Shares as of the date of the transfer, determined by the accounting firm of
Ernst & Young, LLP (or any successor thereto) acting through the
personnel at its office in Tampa, Florida, if that firm is willing to make the
determination; or, if not, any nationally recognized firm of independent
certified public accountants agreed to by Manager and the P.C. Any
determination of the book


 


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market value of the Shares
by such firm shall be deemed a final determination of the book market value as
of the determination date and shall be conclusive upon all parties for purposes
of this Agreement as a commercially reasonable price. The Purchase Price shall
be payable in cash, by cashier’s check, or by a promissory note within thirty
(30) days after receipt of the accounting firm’s Purchase Price determination.
If payment is made by a promissory note, such note shall be payable over three
in thirty-six equal monthly installments of principal and interest and shall
bear interest at the rate of eight percent (8%) per annum.


 


8.                          Commercially
Reasonable Disposition. The parties acknowledge that it would be impossible
to realize a commercially reasonable price in the event of the disposition of
the pledged stock by public sale and very difficult to do so by private sale,
except on the terms and conditions set forth herein. Therefore, the parties
acknowledge that a disposition of the Shares pursuant to the terms of this
Agreement is a commercially reasonable disposition. The parties further
acknowledge and agree that the determination of the Purchase Price under Section 7
is a commercially reasonable method of determining the Purchase Price and that
they will be bound by such Purchase Price determination.


 


9.                          Term. This
Agreement shall continue for as long as the MSA and any renewals thereof are in
effect.


 


10.                    Representations
and Warranties. P.C. and each of the Shareholders represent and
warrant the following:


 


10.1             No
Contravention. There is no provision of any agreement to which
P.C. or any Shareholder is a party or of any law that would be contravened by
the execution, delivery, or performance of this Agreement. There are no
outstanding or authorized options, warrants, purchase rights, subscription
rights, conversion rights, exchange rights, or other contracts or commitments
that could require the P.C. to issue, sell, or otherwise cause to become
outstanding any of its capital stock. There is no litigation nor are there any
proceedings by any public body, agency, or authority presently pending or
threatened against the P.C. or any Shareholder, the outcome of which might
materially and adversely affect the continued operations of the P.C.


 


10.2             Shares. Each
Shareholder has good title, free and clear of all claims, charges, liens,
encumbrances, restrictions, options, calls and defects of any kind or nature
whatsoever, except for the security interest granted hereby; no other person,
entity, or governmental authority has or claims any lien or other interest in
the Shares; no adverse financing statements are on file; and there is no
litigation nor are there any proceedings by any public body, agency, or
authority presently pending or threatened against any Shareholder, the outcome
of which might materially and adversely affect the Collateral.


 


10.3             Survival of
Representations and Warranties. All representations and
warranties shall survive the execution and delivery of this Agreement.


 


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11.                    Affirmative
Covenants.


 


11.1             Application to
Future Shares. This Agreement shall apply to all Shares now owned
or hereafter acquired whether such acquisition be the result of purchase, stock
dividend, split-up, recapitalization or issuance by the P.C. of additional
shares of capital stock.


 


11.2             No Agency and
Defense Against Claims. Nothing in this Agreement shall make any
Shareholder an agent of Manager for any purpose whatsoever. Each Shareholder
shall defend the Shares against all claims, demands, and defenses affecting
Management Service’s security interest, regardless of merit, and shall hold
Manager harmless therefrom, including, without limitation, holding Manager
harmless from all attorneys’ fees and other litigation expenses arising out of
any such claims, demands, or defenses.


 


11.3             Disposition and
Issuances of the P.C.’s Common Stock. The P.C. shall not, and
during the term of this Agreement each Shareholder shall not cause the P.C. to
issue, sell or otherwise cause to be outstanding any additional capital stock,
except for (a) sales of such stock made to approved Shareholders; (b) the
transfer without consideration of any of the Shares to a revocable trust
created by a Shareholder, provided that any and all trustees of such trust
first agrees in writing to hold Shares so transferred subject to this
Agreement; and (c) the transfer of Shares to the Transferee as provided
herein.


 


11.4             Restriction on
Distributions. In no event shall the Current Shareholder cause
the P.C. to make distributions to any individual or entity other than pursuant
to the MSA without the express prior written consent of Manager.


 


12.                    Custody and
Handling of Collateral and Records.


 


12.1             Protection of
Secured Party’s Security Interest. Upon execution of this
Agreement, each Shareholder shall give Manager the certificate(s) representing
such Shareholder’s Shares duly endorsed in blank or, if not endorsed in blank,
each Shareholder shall give Manager a duly executed stock power in blank.


 


12.2             Restrictive
Legend. Each certificate representing Shares shall be marked with a legend
substantially in the following form:


 


THE RIGHT
TO SELL, TRANSFER OR ENCUMBER THE SHARES REPRESENTED BY THIS CERTIFICATE IS
RESTRICTED UNDER THE TERMS OF TRANSITION AGREEMENT AND STOCK PLEDGE DATED JUNE
1, 2005, TO WHICH THE P.C. IS A PARTY. THE P.C. WILL MAIL A COPY OF SAID
AGREEMENT TO ANY SHAREHOLDER WITHOUT CHARGE WITHIN FIVE (5) DAYS AFTER
RECEIPT OF WRITTEN REQUEST THEREFORE.


 


13.                    Default and
Remedies.


 


13.1             Remedies Upon
Default. Upon the occurrence of any breach of any covenant or warranty
contained in this Agreement (“Default”) by the P.C. or any or all of the
Shareholders and continuously thereafter until waived in writing, any of the
parties hereto not in breach of this Agreement shall have the right and option
to immediately send notice to all parties


 


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hereto of a Shareholder
Event of Transfer or a P.C. Event of Transfer, as applicable, to cause a
transfer of Shares pursuant to Section 5 or Section 6 hereof, subject
to a subsequent determination of the Purchase Price. In the event of a Default,
Manager may exercise any other remedy available to Manager as a secured party
under law or equity. Manager shall be entitled upon any breach or threatened
breach of this Agreement to the granting of a temporary restraining order, a
temporary or permanent injunction, or any other equitable remedy which may then
be available without further notice.


 


13.2             Construction of
Rights and Remedies and Waiver of Notice and Consent.


 


(a)                     This Section 13
applies to all rights and remedies provided by this Agreement or at law or in
equity.


 


(b)                    No forbearance
in exercising any right or remedy shall operate as a waiver thereof; no
forbearance in exercising any right or remedy on any one or more occasions
shall operate as a waiver thereof on any future occasion; and no single or
partial exercise of any right or remedy shall preclude any other exercise thereof
or the exercise of any other right or remedy.


 


14.                    Miscellaneous.


 


14.1             Notices. If at any
time after the execution of this Agreement, it shall become necessary or
convenient for one of the parties to serve any notice, demand or communication
upon the other parties, such notice, demand, or communication shall be in
writing and shall be served personally, by nationally recognized overnight
courier which provides confirmation of delivery, or by depositing the same in
the United States mail, registered or certified, return receipt requested,
postage prepaid and to such address as each party may have furnished to the
other parties in writing as the place for the service of notice. Any notice so
mailed shall be deemed to have been given three (3) days after the same
has been deposited in the United States mail; when delivered if the same has
been given personally; or the next business day if the same has been delivered
to a nationally recognized overnight courier service.


 


14.2             Governing Law. This
Agreement shall be construed and interpreted under the laws of the Commonwealth
of Massachusetts.


 


14.3             Binding Effect. This
Agreement shall be binding upon the P.C., each Shareholder, the Shareholders’
personal representatives, heirs, successors, and assigns, as the case may be,
and shall be binding upon and inure to the benefit of Manager and its
successors and assigns. Neither the P.C. nor any Shareholder may assign this
Agreement.


 


14.4             Amendment. This
Agreement may be amended, but only by a written amendment signed by all parties
hereto.


 


14.5             Severabilitv. If any
provision of this Agreement or the application of any provision to any party or
circumstance shall be adjudged invalid or unenforceable to any extent, the
remainder of this Agreement and the application of the provision to any other
party or


 


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circumstance shall not be
affected thereby. Each provision of this Agreement shall be valid and
enforceable to the fullest extent permitted by law.


 


14.6             Headings. The headings
in this Agreement are for convenience of reference only and shall not be used
in interpreting this Agreement.


 


14.7             Number; Gender. Where
appropriate, the number of all words in this Agreement shall be both singular
and plural and the gender of all pronouns shall be masculine, feminine, neuter,
or any combination thereof.


 


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IN WITNESS WHEREOF, the
parties have executed this Agreement as of the date first set forth above.


 


	
   

  	
  NEW ENGLAND RADIATION
  THERAPY

  MANAGEMENT SERVICES, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ David M. Koeninger

  
	
   

  	
  Name:

  	
  David M. Koeninger

  
	
   

  	
  Title:

  	
  VP

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  MASSACHUSETTS ONCOLOGY
  SERVICES, P.C.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Daniel E. Dosoretz

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  /s/ Daniel E. Dosoretz

  
	
   

  	
  Daniel
  E. Dosoretz, M.D.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  /s/ Michael Katin

  
	
   

  	
  Michael Katin, M.D.

  



 


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