Exhibit 10.65


 


TRANSITION AGREEMENT AND STOCK PLEDGE


 


This Transition Agreement
and Stock Pledge (this “Agreement”) is made as of August
       , 2007, by and between PHOENIX
MANAGEMENT COMPANY, LLC, a Michigan limited liability company (“Phoenix”), X-RAY
TREATMENT CENTER, P.C., a Michigan professional corporation (the “PC”); and
MICHAEL J. KATIN, M.D. (the “Current Shareholder”).


 


RECITALS:


 


The following Recitals are
hereby incorporated in this Agreement:


 


A.                                   The PC and
Phoenix have entered into an Business Operations and Support Services
Agreement, dated as of July 20, 1999 (as amended, the “BOA”), for the provision
of certain administrative and billing services to the PC in connection with the
PC’s provision of radiation therapy services in Michigan (the “State”).


 


B.                                     The Current
Shareholder owns all of the issued and outstanding shares of the PC’s stock.


 


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 PC whether
currently issued and outstanding or issued at any time (the “Shares”).


 


D.                                    The Current
Shareholder may desire to issue or transfer Shares to qualified shareholders
satisfactory to and approved by Phoenix (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
Shareholder desires to pledge the Shares to secure the covenants made in this
Agreement, and Phoenix 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
or attempt to transfer 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, not
permitted by the terms of this Agreement;


 


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


 


(c)                                  A Shareholder
is adjudicated incompetent by any court of law;


 


(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 his bank accounts, property or accounts 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 breach of
any of the provisions of this Agreement 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.


 


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


 


(a)                                  There is a
Default (as hereinafter defined) under the BOA by the PC which is not cured
within any applicable cure periods stated in the BOA;


 


(b)                                 Any breach of
the provisions of this Agreement by the PC; or


 


(c)                                  The occurrence
of an Shareholder Event of Transfer where there is only one Shareholder.


 


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


 


2.                                       Grant of
Security Interest. Each Shareholder grants to Phoenix 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 permitted by this Agreement. If any Shares or any
rights therein are transferred contrary to this Agreement, Phoenix retains a
security interest in such Shares and in the proceeds of such disposition.


 


4.                                       Conditional
Agreement to Transfer Stock. All Shareholders shall
immediately transfer the Shares in accordance with the terms of this Agreement
in consideration for the payment of the Purchase Price (as defined in and
determined in accordance with Section 7 hereof) upon the occurrence of a PC
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
Phoenix, the PC and/or any Shareholder (or such Shareholder’s legal
representative or a lien creditor of such Shareholder exercising its remedies
with respect to such Shareholder) shall provide the other parties hereto with
written notice thereof (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 Shareholder who is subject to the Shareholder Event of Transfer (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, Phoenix and the PC, a written notice 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


 


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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 either a period of thirty (30) days commencing thirty-one
(31) days after the date of the Notice, the PC shall have the exclusive right
(but not the obligation) to acquire all of the Transferring Shareholder’s
Shares for the Purchase Price. The PC may exercise its option by delivering,
within the PC Option Period, to each of the Shareholders and Phoenix, a written
notice stating that the PC 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 PC Option Period shall have expired
without the election by any of the Shareholders (other than the Transferring
Shareholder) or the PC to acquire all of a Transferring Shareholder’s Shares,
then Phoenix shall designate a Transferee to purchase the Shares which are not
being purchased pursuant to Sections 5.1 and 5.2, above, for an amount equal to
the Purchase Price.


 


5.4.                              The provisions
of this Section 5 shall not apply if there is only one Shareholder.


 


6.                                       Transfer on PC
Event of Transfer. If a PC Event of Transfer occurs, Phoenix shall
designate a Transferee to purchase all of the Shares of the PC for an amount
equal to the Purchase Price within thirty (30) days of Management Service’s
discovery of the occurrence of a PC 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 chosen by Phoenix. Any determination of the fair
market value of the Shares by such firm shall be deemed a final determination
of the fair 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 (3) years in equal monthly installments of
principal and interest and shall bear interest, with such interest to accrue at
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 Shares 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 BOA and any renewals thereof are in
effect.


 


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10.                                 Representations
and Warranties. The PC and each of the Shareholders represent and
warrant the following:


 


10.1.                        No
Contravention. There is no provision of any agreement to which
the PC or any Shareholder is a party or of any law that would be contravened by
the execution, delivery, or performance of this Agreement. The PC and each
Shareholder’s name and the information contained in the Recitals hereto are
correct. 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 PC 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 PC or any Shareholder, the outcome
of which might materially and adversely affect the continued operations of the
PC.


 


10.2.                        Shares. Each
Shareholder has good title to the Shares, 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 concerning
the Shares 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,
covenants and warranties set forth herein shall survive the execution and
delivery of this Agreement.


 


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, issuance by the PC of additional shares
of capital stock or otherwise.


 


11.2.                        No Agency and
Defense Against Claims. Nothing in this Agreement shall make any
Shareholder an agent of Phoenix for any purpose whatsoever. Each Shareholder
shall defend the Shares against all claims, demands, and defenses affecting
Phoenix’s security interest in the Shares, regardless of merit, and shall hold
Phoenix harmless therefrom, including, without limitation, holding Phoenix
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 PC’s Common Stock. The PC shall not, and
during the term of this Agreement each Shareholder shall not cause the PC 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 as permitted by the terms of this Agreement.


 


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 Phoenix the certificate(s) representing
such Shareholder’s Shares duly endorsed in blank or, if not endorsed in blank,
each Shareholder shall give Phoenix a duly executed stock power in blank.


 


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12.2.                        Restrictive
Legend. Each certificate representing Shares of the PC 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 August           , 2007, to which the PC is a party.
The PC 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 of the terms of this
Agreement by the PC or any or all of the Shareholders (a “Default”), Phoenix
shall have the right and option to: (i) immediately send notice to all parties
hereto of a Shareholder Event of Transfer or a PC 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, and (ii) exercise
any other remedies and/or rights available to Phoenix as a secured party under
law or equity. Without limiting the foregoing, Phoenix 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. The rights
and remedies of Phoenix herein expressly specified are cumulative and not
exclusive of other contractual, common law or statutory rights and remedies
which secured parties may have, including without limitation, all rights and
remedies of a secured creditor under applicable law. Phoenix shall be under no
duty to exercise or withhold the exercise of any of its rights and remedies
provided hereunder or otherwise. No omission or delay by Phoenix in exercising
any such right or remedy shall operate as a waiver or partial waiver of any
such right or remedy thereof, nor shall any single or partial exercise of any
such right or remedy preclude any other or further 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 State of
Florida.


 


14.3.                        Binding Effect. This
Agreement shall be binding upon each of the parties hereto and their respective
heirs, successors, and permitted assigns. Neither the PC nor any Shareholder
may assign this Agreement without the prior written permission of Phoenix.


 


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


 


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14.5.                        Severability. 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 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.


 


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


 


	
   

  	
  X-RAY TREATMENT CENTER,
  P.C.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Michael J. Katin

  
	
   

  	
  Name:

  	
  Michael J. Katin, M.D.

  
	
   

  	
  Title:

  	
  President

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  PHOENIX MANAGEMENT
  COMPANY, LLC

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ David N. T. Watson

  
	
   

  	
  Name:

  	
  David N. T. Watson

  
	
   

  	
  Title:

  	
  Vice-President

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  /s/ Michael J. Katin

  
	
   

  	
  Michael J. Katin, M.D.

  



 


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