Exhibit 2.2
Second Amendment to Acquisition Agreement And Plan of Reorganization
dated May 7, 1998, by and among UCI Medical Affiliates of Georgia,
Inc., a South Carolina corporation; UCI Medical Affiliates, Inc., a
Delaware corporation; MainStreet Healthcare Corporation, a Delaware
corporation; MainStreet Healthcare Medical Group, P.C., a Georgia
professional corporation; MainStreet Healthcare Medical Group, PC, a
Tennessee professional corporation; Prompt Care Medical Center, Inc., a
Georgia corporation; Xxxxxxx X. Xxxx; A. Xxxxx Xxxxxxx; XXXXXX Private
Equity and Mezzanine Fund, L.P., a Delaware limited partnership; and
Xxxxxx X. Xxxxxxx, Xx.
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SECOND AMENDMENT
TO
ACQUISITION AGREEMENT AND PLAN OF REORGANIZATION
This Second Amendment To Acquisition Agreement and Plan of
Reorganization ("Second Amendment") is made as of this 7th day of May, 1998, by,
between and among UCI Medical Affiliates, Inc., a Delaware corporation ("UCI");
UCI Medical Affiliates of Georgia, Inc., a South Carolina corporation ("UCI of
GA"); MainStreet Healthcare Corporation, a Delaware corporation ("MainStreet");
MainStreet Healthcare Medical Group, P.C., a Georgia professional corporation
("MHMG-GA"); MainStreet Healthcare Medical Group, PC, a Tennessee professional
corporation ("MHMG-TN"); Prompt Care Medical Center, Inc., a Georgia corporation
("Prompt Care"); Xxxxxxx X. Xxxx ("Dare"); A. Xxxxx Xxxxxxx ("Xxxxxxx"); XXXXXX
Private Equity and Mezzanine Fund, L.P., a Delaware limited partnership
("XXXXXX"); and Xxxxxx X. Xxxxxxx, Xx. ("Xxxxxxx").
INTRODUCTION.
-------------
Pursuant to that certain Acquisition Agreement and Plan of
Reorganization ("Agreement") dated February 9, 1998, by and among UCI, UCI of
GA, MainStreet, MHMG-GA, MHMG-TN, Prompt Care, Dare, Johnson, PENMAN, and
Xxxxxxx, MainStreet has agreed to sell substantially all of its assets to UCI of
GA. As set forth in that certain First Amendment to Acquisition Agreement and
Plan of Reorganization dated April 15, 1998, the closing of the transactions
described in the Agreement was scheduled to be held on April 24, 1998.
The Parties desire to enter into this Second Amendment to reflect a
change in the date of Closing and certain other amendments to the Agreement as
reflected herein. Defined terms herein shall have the meanings ascribed to them
in the Agreement unless otherwise defined herein.
AGREEMENT.
----------
NOW, THEREFORE, in consideration of these premises and the mutual
covenants hereinafter set forth, and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
1. Section 7.1.2 of the Agreement is hereby deleted and the following
substituted in lieu thereof:
7.1.2 In addition, UCI of GA at Closing will pay to an escrow
account established by the Parties (the "Escrow Account"), the sum of
Four Hundred Fifty Thousand and No/100 ($450,000) Dollars. The Escrow
Account will be established with an escrow agent ("Escrow
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Agent") appointed by MainStreet pursuant to an escrow agreement
acceptable to MainStreet and UCI of GA which shall provide that the
escrowed funds shall be paid directly to certain creditors of
MainStreet as directed by MainStreet.
2. The first paragraph of Section 7.1.3 of the Agreement is hereby
deleted and the following substituted in lieu thereof:
7.1.3 In addition, the sum of Eight Hundred Thousand and
No/100 ($800,000) Dollars shall be due and payable by UCI of GA to
Escrow Agent on or before August 1, 1998, pursuant to the promissory
note substantially in the form attached hereto as Exhibit 7.1.3 (the
"Promissory Note").
3. Section 8.1 of the Agreement is hereby deleted and the following
substituted in lieu thereof:
8.1 Date of Closing. Subject to the terms and conditions of
this Agreement, the closing of the sale and purchase of the Assets and
related transactions shall take place on May 8, 1998, to be effective
as of 12:01 a.m. on May 1, 1998, and shall take place at the offices of
Xxxxxx Xxxxx Xxxxxx & Xxxxxxx, LLP, 0000 Xxxx Xxxxxx, Xxxxx 0000,
Xxxxxxxx, Xxxxx Xxxxxxxx (the "Closing") or such other time and place
as may be mutually agreed upon in writing by MainStreet and UCI of GA.
In the event Closing set forth in this Section 8 is changed to a
different date, all references in this Agreement to Closing shall be
deemed to refer to the time and date agreed upon by MainStreet and UCI
of GA, in the manner set forth herein.
4. Section 13 of the Agreement is hereby amended to add the following
section:
13.9 Set Off and Recoupment. In addition to any other remedies
available to UCI or any Transferee against the Transferors under this
Agreement, until such time as the Promissory Note is paid in full, UCI
and the Transferees before seeking a monetary recovery against any
Class B Shareholder shall first set off or recoup against amounts
coming due to Escrow Agent under the Promissory Note in the event any
right of indemnification arises in favor of UCI or any Transferee under
this Agreement subject to the applicable limitations set forth in this
Agreement. If the Note is satisfied, UCI and the Transferees may seek
monetary recovery against the Class B Shareholders subject to the
applicable limitations set forth in the Agreement. Escrow Agent,
Transferees and Class B Shareholders retain the right to lawfully
contest any such set off or recoupment in an action to collect any
amounts due under the Note, Agreement or such other ancillary
instruments.
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Notwithstanding any provision to the contrary in this Agreement, such
set off rights and limitations set forth in this Section shall not
impair the rights of UCI or any Transferee to seek non-monetary
equitable relief, including (without limitation) specific performance
or injunctive relief to redress any default or breach of this Agreement
or any document executed in connection therewith.
5. Sections 16.1.1.2 and 16.1.1.3 of the Agreement are hereby deleted
and the following substituted in lieu thereof:
16.1.1.2 By UCI of GA. In the event that Closing has not been
completed by May 31, 1998 as a result of the non-satisfaction or
non-fulfillment in any material respect of any of the conditions upon
Transferees' obligations specified in Section 11.1 (which has not been
previously waived by Transferees), then UCI of GA shall be entitled at
its option to terminate this Agreement by notice to the other Parties;
provided however, that UCI of GA shall not be entitled to terminate
this Agreement if the non-satisfaction or non-fulfillment of any such
condition resulted from or was proximately caused by UCI or any
Transferee's breach of this Agreement or was frustrated or made
impossible by the wrongful act or failure to act of UCI or any
Transferee.
16.1.1.3 By MainStreet. In the event that Closing has not been
completed by May 31, 1998 as a result of the non-fulfillment or
non-satisfaction in any material respect of any of the conditions upon
Transferors' obligations specified in Section 11.2 (which has not been
previously waived by Transferors), then MainStreet shall be entitled at
its option to terminate this Agreement by notice to the other Parties;
provided however, that MainStreet shall not be entitled to terminate
this Agreement if the non-satisfaction or non-fulfillment of any such
condition resulted from or was proximately caused by any Class B
Shareholder or Transferor's breach of this Agreement or was frustrated
or made impossible by the wrongful act or failure to act of any Class B
Shareholder or Transferor.
6. Exhibit 7.1.3 of the Agreement, as amended, is hereby deleted, and
Exhibit 7.1.3 attached hereto shall be substituted in lieu thereof.
7. Except as otherwise modified hereby, the terms and provisions of the
Agreement shall remain in full force and effect. This Second Amendment may be
executed in any number of counterparts, all of which taken together shall
constitute one Amendment, and any party hereto may execute this Second Amendment
by signing any such counterpart. The authorized attachment of counterpart
signature pages shall constitute execution by the Parties. This Second Amendment
shall be governed by and construed in accordance with the laws of
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the State of South Carolina. No provision of this Second Amendment shall be
interpreted against any Party because such Party or its legal representative
drafted such provision.
[SIGNATURE PAGE ATTACHED HERETO]
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IN WITNESS WHEREOF, the parties have executed this Second Amendment To
Acquisition Agreement and Plan of Reorganization under seal with the corporate
parties acting by and through their duly authorized officers, effective as of
the date first above written.
UCI MEDICAL AFFILIATES, INC. MAINSTREET HEALTHCARE
CORPORATION
By: /S/ XXXXX X. XXXXX, XX. By: /S/ XXXXXX X. XXXXXXX, XX.
--------------------------- ---------------------------
Its: Executive Vice President of Finance Its: President
and Chief Financial Officer
UCI MEDICAL AFFILIATES OF MAINSTREET HEALTHCARE MEDICAL
GEORGIA, INC. GROUP, P.C., a Georgia corporation
By: /S/ XXXXX X. XXXXX, XX. By: /S/ XXXXXX X. XXXXXXX, XX.
--------------------------- ---------------------------
Its: Executive Vice President of Finance Its: Vice President
and Chief Financial Officer
XXXXXX PRIVATE EQUITY AND MAINSTREET HEALTHCARE
MEZZANINE FUND, L.P. MEDICAL GROUP, PC, a Tennessee
corporation
By: XXXXXX Asset Management, L.P.
Its: General Partner By: /S/ XXXXXX X. XXXXXXX, XX.
By: /S/ XXXXX X. XXXXXXXXXX ---------------------------
--------------------------- Its: Vice President
Xxxxxx X. Xxxxxxxxxx
Its: General Partner
PROMPT CARE MEDICAL CENTER, INC.
/S/ XXXXXX X. XXXXXXX, XX. By: /S/ XXXXXX X. XXXXXXX, XX.
------------------------------- ---------------------------
Xxxxxx X. Xxxxxxx, Xx. Its: Vice President
/S/ XXXXXXX X. XXXX
-------------------------------
Xxxxxxx X. Xxxx
/S/ A. XXXXX XXXXXXX
-------------------------------
A. Xxxxx Xxxxxxx
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Exhibit 7.1.3
Promissory Note
[See Attached]
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PROMISSORY NOTE
$800,000.00 Columbia, S.C.
Subject to Setoff as of May 1, 1998
FOR VALUE RECEIVED, UCI Medical Affiliates of Georgia, Inc., a South
Carolina corporation (the "Borrower"), hereby promises to pay, in lawful money
of the United States of America, to the order of X. Xxxxxxxx & Associates, P.C.
("Escrow Agent") as escrow agent under that certain Escrow Agreement by and
between MainStreet Healthcare Corporation ("MHC"), Borrower and Escrow Agent
dated the hereof, the principal sum of Eight Hundred Thousand and No/100
($800,000.00) Dollars, subject to setoff as provided hereunder.
Interest shall accrue from the date hereof on the principal balance
outstanding hereunder from time to time until paid in full at the fixed simple
rate per annum equal to six and one-half (6.5%) percent calculated based upon a
360-day year and the actual number of days elapsed. All principal and interest
payable hereunder shall be due and payable on August 1, 1998. Payments hereunder
shall be made to the Escrow Agent at Suite 1550, 0000 Xxxxx Xxxxxx Xxxx.,
Xxxxxxx, Xxxxxxx 00000, or at such other place as the Escrow Agent may designate
from time to time in writing.
Notwithstanding the foregoing, upon the occurrence of a default in the
payment when due of any amount at any time owed hereunder, the interest rate
applicable hereunder shall be increased by an additional four percentage points
(4.0%); provided, however, that in no event shall the interest accruing under
this Note exceed the highest lawful rate.
The occurrence of the following shall constitute an "Event of Default"
under the Note: Borrower fails to pay when due any principal or interest payment
hereunder. Upon the occurrence of an Event of Default as hereinabove defined,
then at any time thereafter the Escrow Agent may declare the entire remaining
principal balance due hereunder, together with all accrued interest thereon,
immediately due and payable.
This Note is executed pursuant to, and is subject to, that certain
Acquisition Agreement and Plan of Reorganization dated February 9, 1998, by and
between among others Borrower and MHC, as amended (the "Acquisition Agreement").
Borrower may prepay this Note at any time without fee or penalty. Anything
contained in this Note to the contrary notwithstanding, subject to the terms and
conditions of Section 13.9 of the Acquisition Agreement, Borrower shall have the
right of set off and recoupment against amounts coming due hereunder in the
event that any Transferor and/or Class B Shareholder (each as defined in the
Acquisition Agreement) breaches the Acquisition Agreement or any document
executed in connection therewith. In the event Borrower elects to exercise the
right of set off and recoupment set forth herein, upon notice to the Escrow
Agent the principal amount hereof shall be deemed reduced by the amount of any
set off or recoupment to which the Borrower is entitled, and all interest and
payments accruing thereafter shall be calculated based upon such reduced
principal amount. The Escrow Agent's right to lawfully contest such set off or
recoupment in any action to collect this Note shall not be impaired by
Borrower's exercise of such set off or recoupment rights.
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The invalidity of any provision of this Note shall not affect the
validity of any other provision hereof. The acceptance after maturity of any
payment with respect to this Note shall not constitute a waiver of the right of
Escrow Agent to demand the payment in full of any unpaid balance. No delay or
failure on the part of the Escrow Agent in the exercise of any right or remedy
shall operate as a waiver thereof, and no single exercise of any right or remedy
shall preclude Escrow Agent from the exercise of any other or further rights or
remedies.
In the event this Note is placed in the hands of an attorney for
collection (but not for resolution of any disputes of set off or recoupment of
the amount due hereunder), all expenses of the Escrow Agent incurred in
connection with the repayment of this Note, including reasonable attorneys'
fees, shall be added to the principal amount of this Note and collected as a
part hereof. This Note shall be governed by and construed in accordance with the
laws of the State of South Carolina. Jurisdiction and venue for the enforcement
of this Note shall be exclusively in the courts for the State of South Carolina.
Borrower expressly waives demand, presentment, protest and notice of
non-payment or dishonor and all other notices or demands whatsoever (except for
notices expressly set forth herein), and such parties agree to remain bound
hereby until all amounts due hereunder are paid in full, notwithstanding any
extension of time for payment which may be granted, even though the period of
extension be indefinite.
EXECUTED as of May 8, 1998, to be effective as of 12:01 a.m. on this
1st day of May, 1998.
UCI MEDICAL AFFILIATES OF GEORGIA,
INC. (SEAL)
By: ___________________________________________
Xxxxx X. Xxxxx, Xx.
Its: Executive Vice President of Finance
and
Chief Financial Officer
Notice Address for Borrower:
0000 Xxxx Xxxxxx, Xxxxx 0000
Xxxxxxxx, Xxxxx Xxxxxxxx 00000
Attn: Xxxxx X. Xxxxx, Xx.
[GUARANTY ATTACHED HERETO]
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GUARANTY
The undersigned UCI Medical Affiliates, Inc., a Delaware corporation
("UCI"), hereby irrevocably and unconditionally guarantees the proper and timely
performance and/or full and timely payment of each and every term and obligation
of UCI Medical Affiliates of Georgia, Inc., a South Carolina corporation ("UCI
of GA"), contained in the foregoing Promissory Note in the original principal
amount of Eight Hundred Thousand and No/100 ($800,000.00) Dollars dated
effective as of May 1, 1998 (the "Note") executed by UCI of GA in favor of X.
Xxxxxxxx & Associates, P.C. ("Escrow Agent") as escrow agent under that certain
Escrow Agreement by and between MainStreet Healthcare Corporation, UCI of GA,
and Escrow Agent dated May 1, 1998. This guaranty is a guarantee of payment and
not of collection and shall not be changed or affected by any act or statement
of UCI of GA, the invalidity or unenforceability of the Note, or any amendment
or termination of the Note. The holder of the Note shall not be required to seek
enforcement against UCI of GA or resort to any other remedy and may proceed
directly against the undersigned. The undersigned waives any right of
subrogation with respect to any payments made under this Guaranty. Except as
expressly set forth in the Note, the undersigned hereby waives presentment,
demand, protest, notice of non-payment, notice of default, notice of compromise
or surrender, any other demand or notice whatsoever in connection with this
Guaranty, and any other right which would release the undersigned at law or
equity from its obligations under the Guaranty. In the event this Guaranty is
placed in the hands of an attorney for collection, all expenses of the
prevailing party, including reasonable attorney's fees, shall be added to this
Guaranty and collected as a part hereof. This Guaranty shall be governed by and
construed in accordance with the laws of the State of South Carolina.
IN THE PRESENCE OF: UCI MEDICAL AFFILIATES, INC.
_______________________ By: ____________________________________________
(Witness) Xxxxx X. Xxxxx, Xx.
Its: Executive Vice President of Finance and
Chief Financial Officer
_______________________
(Witness)
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