EXHIBIT NO. 2
ASSET PURCHASE AGREEMENT
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ASSET PURCHASE AGREEMENT
This Asset Purchase Agreement ("Agreement") is made to be effective as
of the 1st day of December, 1995, by, between and among UCI Medical Affiliates,
Inc., a Delaware corporation ("UCI"), UCI Medical Affiliates of South Carolina,
Inc., a South Carolina corporation and wholly owned subsidiary of UCI ("UCI of
SC"), Doctor's Care, P.A., a South Carolina professional corporation ("Doctor's
Care") and Xxxxxx X. Xxxx, MD, P.A. (Seller)..
Introduction. Seller owns and operates a medical practice located at
0000 Xxxxx Xxxx Xxxx, Xxxxxx 00 & 20, Xxxxxxxxxx, Xxxxx Xxxxxxxx, 00000
("Premises"). UCI of SC owns and /or leases various medical-related facilities
and equipment in South Carolina and has contracted with Doctor's Care to provide
health care services at such facilities. Seller desires to (i) lease the
premises to UCI pursuant to a lease between the parties dated December 1, 1995.
(ii) transfer its patient records to Doctor's Care, (iii) become an employee of
Doctor's Care pursuant to an employment agreement between the parties dated as
of December 1, 1995 and (iv) transfer to UCI of SC as of 12:01 a.m. on December
1, 1995 (the "Effective Date") certain assets of the Seller upon the terms and
conditions set forth herein. This Agreement provides for the transfer of the
Assets (hereinafter defined) from Seller to UCI of SC.
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. Sale of Assets to UCI of SC.
1.1 Transfer of Assets. At the Closing, for the consideration
herein provided, Seller shall convey, transfer, assign and deliver, or cause to
be conveyed, transferred, assigned, and delivered, to UCI of SC, and UCI of SC
shall purchase and accept from Seller, all of Seller's right, title, and
interest (as the case may be) in and to following assets (collectively
"Assets"):
1.1.1 All of the machinery, equipment, computer and telephone
systems (including hardware and software), furniture, furnishings, office
equipment, and related tangible personal property respecting Seller's business
conducted in the Premises (the "Business"), including (without limitation) the
items described in Exhibit A attached hereto.
1.1.2 All of the accounts receivable, all proceeds of the
accounts receivable collected subsequent to the Effective Date, leases and
contracts, sales contracts, equipment leases, permits, licenses, rights,
computer software, contracts, goodwill and related intangible personal property
of the Business, including (without limitation) the items described in Exhibit B
attached hereto. Seller shall be responsible for obtaining the necessary
consents, if any, to assignment of such intangible assets.
1.1.3 All of the inventory of the Business, wherever
located.
1.1.4 All of Seller's repair and service contracts and
warranties (which are acceptable to UCI of SC in its sole discretion) used or
useful in the Business.
1.2 Method of Transfer. The transfer and sale of the Assets will be
evidenced by appropriate Bills of Sale, assignments and other instruments
executed and delivered by Seller to UCI of SC at Closing, as set forth in this
Agreement.
1.3 Not a Sale of Business. This transaction constitutes the sale of
assets by Seller and not the sale of a business; provided, however, that
anything contained in this Agreement to the contrary notwithstanding, it is the
intent of the parties that UCI of SC purchase and acquire and
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Seller sell and transfer the complete operating process of the Business
and all properties and interest necessary to operate the Business
substantially as it is presently being operated.
1.4 Possession. UCI of SC shall take, and Seller shall deliver,
possession of the Assets at completion of Closing to be effective as of the
Effective Date.
2. Transfer of Seller's Patient Records to Doctor's Care.
2.1 Transfer of Patient Records. At Closing, Seller shall transfer and
deliver to Doctor's Care all of Seller's right, title and interest in and to any
medical records in its possession that were made in treating a patient and of
records transferred to Seller concerning prior treatment of a patient ( the
"Patient Records").
2.2 Method of Transfer. The transfer of the Patient Records will be
evidenced by an appropriate xxxx of sale, executed and delivered by Seller to
Doctor's Care at Closing, as set forth in this Agreement.
2.3 Notices. Seller shall cause any public notices to be filed in a
timely manner and to otherwise comply with all requirements of the Physician's
Patient Records Act or any other applicable law, regulation, rule or ordinance
related to the transfer of the Patient Records.
2.4 Possession. Doctor's Care shall pick up and take, and Seller shall
relinquish, possession of the Patient Records at Closing, to be effective as of
the Effective Date.
3. Consideration for Acquisitions.
3.1 Purchase Price. The purchase price ("Purchase Price") for the
Assets shall be payable as follows:
3.1.1 Common Stock. UCI shall issue to Seller certificates representing
such numbers of shares of UCI Common Stock, $0.05 par value, having an aggregate
value of Two Hundred Forty Thousand ($240,000) and No/100 Dollars. For purposes
hereof, the price per share of UCI Common Stock shall be the closing ask price
on the date immediately prior to the Closing Date. The Shares, when issued, will
be duly authorized, validly issued, fully paid and on accessible. The
certificate evidencing the Shares shall bear a restrictive legend in
substantially the following form:
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY STATE SECURITIES LAWS, HAVE
BEEN TAKEN WITHOUT A VIEW TO THE DISTRIBUTION THEREOF WITHIN THE MEANING OF SUCH
ACT, AND MAY NOT BE SOLD, PLEDGED, TRANSFERRED OR OTHERWISE DISPOSED OF EXCEPT
IN ACCORDANCE WITH SUCH ACT AND THE RULES AND REGULATIONS THEREUNDER AND IN
ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS. THE COMPANY WILL NOT TRANSFER
SUCH SHARES EXCEPT UPON RECEIPT OF EVIDENCE SATISFACTORY TO THE COMPANY, WHICH
MAY INCLUDE AN OPINION OF COUNSEL, THAT THE REGISTRATION PROVISIONS OF SUCH ACT
HAVE BEEN COMPLIED WITH THAT SUCH REGISTRATION IS NOT REQUIRED AND THAT SUCH
TRANSFER WILL NOT VIOLATE ANY APPLICABLE STATE SECURITIES LAWS.
3.1.2 Additional Payment. UCI of SC shall pay to Seller as
follows:
(1) The sum of Thirty Thousand Dollars ($30,000.00) on
or before Closing Date.
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(2) An additional sum of Thirty Thousand Nine Hundred
Dollars ($30,900.00) as evidenced by a Promissory
Note ("Promissory Note") payable to Seller in said
amount and executed by Buyer. The Promissory Note is
to be paid on or before April 1, 1996.
4. Closing.
4.1 Closing Date. The closing of the sale and purchase of the Assets
and related transactions ("Closing") shall take place on December 1, 1995,
commencing at 11:00 a.m. (local time), at the Law Offices of Xxxxxxxx X. Xxxxxx,
P.A. or such other time and place as may be mutually agreed upon in writing by
the Parties (alternatively "Closing). In the event Closing set forth in this
Section 4 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 the
parties, in the manner set forth herein. The effective date for the transactions
contemplated herein shall be the Effective Date.
4.2. Transactions at Closing. At the Closing:
4.2.1 Upon receipt of an investment letter in the form of
Exhibit C attached hereto duly executed by Seller, UCI shall issue to Seller a
certificate evidencing the Shares pursuant to Section 3.11. If such certificate
is not available at Closing, UCI will provide Seller with a copy of the
instructions which UCI will forward to its transfer agent instructing such agent
to issue a certificate evidencing the Shares to Seller.
4.2.2 Seller shall deliver to UCI of SC or Doctor's Care, as
applicable, the bills of sale, assignments, titles, certificates, and other
documents, agreements and instruments, in form and substance required by this
Agreement, as described in Section 4.3.
4.2.3 UCI of SC shall deliver to Seller the documents,
agreements and instruments in form and substance required by this Agreement, as
described in Section 4.4..
4.2.4 All employees of Seller directly and primarily
associated with the Business will cease to be employees of Seller, and Doctor's
Care may, subject to the exercise of Doctor's Care's sole discretion, offer
immediately or thereafter to hire any or all of such persons. Doctor's Care
and/or UCI of SC shall be entitled to hire only those employees of Seller which
Doctor's Care and/or UCI of SC elects in its sole discretion to hire, and
Doctor's Care and/or UCI of SC shall not assume any liability whatsoever to any
employee of Seller not hired by Doctor's Care and/or UCI of SC. Seller will be
responsible for paying and reporting all costs and liabilities, including but
not limited to compensation, federal and state withholding taxes, federal and
state unemployment taxes, all employee benefit costs, and worker's compensation
claims incurred or accrued prior to the Closing Date.
4.2.5 The Parties will take such other actions contemplated at
Closing by this Agreement..
4.3 Seller's Documents. At Closing, Seller shall deliver or cause to be
delivered, at Seller's expense, the following duly executed, lawful and
effective documents and instruments:
4.3.1 A xxxx of sale for tangible personal property and
fixtures composing portions of the Assets substantially in the form attached
hereto as Exhibit D to UCI of SC.
4.3.2 An assignment of intangible personal property composing
portions of the Assets substantially in the form attached hereto as Exhibit E to
UCI of SC.
4.3.3 The Employment Agreement dated June 23, 1998 substantially in the
form attached hereto as Exhibit F to UCI.
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4.3.4 An Investment Letter substantially in the form attached
hereto as Exhibit C to UCI.
4.3.5 A xxxx of sale for the Patient Records to Doctor's Care.
4.4 Documents of UCI, UCI of SC or Doctor's Care. At Closing
UCI, Doctor's Care and/or UCI of SC shall deliver or cause to be delivered to
Seller (as the case may be), at their expense, the following duly executed,
lawful, and effective documents and instruments:
4.4.1 UCI will deliver a certificate evidencing the Shares, or
if such certificate is not available, a copy of the instructions which UCI will
forward to its transfer agent instructing such agent to issue a certificate
evidencing the Shares to Seller.
4.4.2 Doctor's Care will deliver the Employment Agreement
substantially in the form attached hereto as Exhibit F.
4.4.3 Doctor's Care will deliver the Promissory Note to the
Seller.
4.5 Conditions of Title.
4.5.1 Assets. At Closing, the Assets shall be conveyed by
appropriate instruments of conveyance free and clear of all claims, security
interests, liens and encumbrances except personal property and ad valerium taxes
for the year of Closing (which shall be prorated as provided in this Agreement),
or leases which remain outstanding which have been assumed by the buyer.
4.6 Transactions Subsequent to Closing.
4.6.1 Employment Matters. Nothing contained herein shall be
construed to create any liability for UCI, UCI of SC or Doctor's Care to present
or past employees of Seller, or to the South Carolina Employment Security
Commission or any other person or entity or regulatory agency for periods prior
to the Closing Date.
4.62 Accounts Receivable. Seller shall cooperate with UCI of
SC's attempts to collect the accounts receivable constituting portions of the
Assets and will promptly pay over to UCI of SC any proceeds of such accounts
receivable that are paid to Seller after Effective Date.
4.6.3 Confidentiality. Seller shall hold in confidence all
documents and information concerning the Business and the Assets (except that
Seller may, after reasonable notice to UCI of SC disclose such documents and
information, or copies or summaries thereof, to any governmental authority
reviewing the transactions contemplated hereby or as required in Seller's
reasonable judgment pursuant to Federal or state laws or court order).
4.6.4 Taxes. Seller shall file such tax returns and reports
and pay such taxes as are required for periods ending with the day before the
Closing Date.
4.6.5 Creditors. Seller shall promptly pay all of Seller's
valid liabilities and perform all of Seller's valid obligations which Seller has
incurred in connection with the Assets or the operation of the Business prior to
the Effective Date.
4.6.6 Miscellaneous Required Acts. The Parties shall take such
other actions and comply with other obligations as are required after Closing
under this Agreement or under documents ancillary hereto.
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4.7 Other Actions. The parties hereto agree that they will at any time
and from time to time do, execute, acknowledge and deliver, or will cause to be
done, executed, acknowledged and delivered, all such further acts, deeds,
assignments, transfers, conveyances, documents, instruments and assurances as
may be reasonably required by the other party in order to carry out fully and to
effectuate the transactions herein contemplated under, and in accordance with,
the provisions of this Agreement.
5. Representations and Warranties of Seller. Seller hereby warrants, represents,
and covenants as follows:
5.1 Authority. Seller has full power and authority to execute this
Agreement and to consummate the transactions contemplated hereby. When executed
and delivered, this Agreement shall constitute valid and binding obligations of
Seller enforceable in accordance with its terms and conditions. Neither the
execution nor the delivery of this Agreement nor the consummation of the
transactions contemplated hereby, nor the compliance with any of the terms and
conditions hereof, will result in the breach by Seller of any of the terms,
conditions, or judgment, law or other contract, agreement or instrument to which
Seller is bound, or constitute a default of such indenture, mortgage, deed of
trust, order, judgment, law or other contract, agreement or instrument.
5.2 Compliance with Laws. Seller is in compliance with all laws,
ordinances, and regulations that govern such Seller's ownership and present use
of the Assets the violation of which would have an adverse effect on the Assets
or the Business. All of the Assets sold hereunder substantially comply with
applicable environmental, zoning health, OSHA, consumer products, and fire
safety regulations.
5.3 Title to Assets. At Closing, Seller will have, and shall be
entitled to convey, good, marketable and insurable title to the Assets and the
condition of title as required by Section 4.5. At Closing, Seller will not be
indebted to any contractor, laborer, mechanic, material man or any other person
or entity for work, Labor, materials or services in connection with the Assets
for which any such person or entity could claim a lien against the Assets. To
the best of Seller's knowledge, there is not pending or threatened condemnation
or eminent domain action respecting the Premises or the Assets.
5.4 Consents. No consent of any third party is required in
connection with Seller transfer and assignment of Assets to Buyer hereunder.
5.5 Litigation. There are no judicial or administrative actions or
proceedings pending, or to the best of Seller's knowledge, threatened that
question the validity of this Agreement or any transaction contemplated hereby
or that relate to the Assets, or to the conduct of Business, including but not
limited to condemnation or bankruptcy proceedings, which if adversely determined
would have an adverse effect upon Seller's ability to enter into this Agreement
or perform its obligations hereunder or upon the use, enjoyment, or value of the
Assets for UCI of SC.
5.6 Insurance Coverage. Buyer maintains policies of insurance covering
the Assets in amounts and against such losses and risks as are customary for
facilities such as the Business in their present usage.
5.7 Normal Course. Seller shall have operated the Assets in the normal
and ordinary course of business since at least January 1, 1994, and shall have
paid or caused to be paid promptly when due all city, county and state ad
valerium taxes and similar taxes and assessments and all utility charges and
assessments imposed upon or assessed against the Assets prior to the Closing.
Seller shall exercise its best efforts to preserve the goodwill of the
employees, patients, suppliers and others having business relationships with the
Business through Closing.
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5.8 Creditors, Solvency, and Bankruptcy. Seller shall not hinder,
delay, defraud, or avoid any obligation to any past present or future creditor
in the transactions contemplated by this Agreement. Seller is currently solvent
and will not be rendered insolvent as a result of the transactions contemplated
hereby. Seller has not initiated, nor does it intend to initiate with respect to
itself as debtor, has had initiated or expects to have initiated against it as
debtor, any proceeding under federal or any state's bankruptcy, insolvency or
similar laws.
5.9 Labor and Employee Benefit Matters. Seller is not a party to any
agreement with any labor organization. Seller has not maintained or sponsored
for any employee or former employee of Seller any fringe or benefit plans,
including, without limitation, any retirement, pension, profit sharing,
thrift-savings, non-qualified deferred compensation, incentive compensation,
stock bonus, stock option (qualified or non-qualified), cash bonus, employee
stock ownership (including, without limitation, payroll related employee stock
ownership), insurance, medical, welfare or vacation plans of any kind and any
"employee benefit plan" (as defined in Section 3(3) of Title I of the Employment
Retirement Income Security Act of 1974, as amended ("ERISA)) or any voluntary
employees' beneficiary association (as defined in Section 501(c) (9) of the
Internal Revenue Code) or combination of the foregoing. Seller has not incurred
any accumulated funding deficiency within the meaning of ERISA or any liability
to the Pension Benefit Guaranty Corporation established under ERISA, nor has any
tax been assessed against Seller for the alleged violation of the Internal
Revenue Code with respect to the Business or its operation.
5.10 Payables and Taxes. Seller will pay all accounts payable and
taxes, assessments, and charges respecting the Assets for which Seller remains
or becomes responsible in a reasonable amount of time following Closing and will
protect the reputation of UCI of SC by promptly paying all the valid debts and
obligations of Seller which have been incurred in connection with the operation
of the Business and which affect the Assets. Seller has paid all taxes, license
fees or other charges levied, assessed or imposed upon the Business and any of
the Assets, except those not yet due and payable; Seller will, however, pay all
taxes incurred or accruing up to the Effective Date, whether same are payable at
that date or not, including (without limitation) Ad Valorem, payroll, sales and
other taxes due, incurred, or livable as of the Effective Date.
5.11 Workers' Compensation. There are no worker compensation or similar
claims or actions pending or threatened, and Seller does not know of facts which
would make such claims timely, by past or present employees of Seller.
5.12 Status of Assets. The Assets sold hereunder constitute all of the
assets of the Business and include all property, rights, and intangibles
necessary for UCI of SC and/or Doctor's Care to operate after Closing a business
similar to the Business as heretofore conducted. All material inventory systems,
machinery, equipment, and other tangible property which are portions of the
Assets are generally sound, in good repair, may be safely operated within all
applicable standards or regulations in their present conditions, and are in
merchantable condition. All material contracts, commitments, accounts
receivable, and similar rights which are portions of the Assets are valid,
binding, enforceable, and without known default as violation of law. The
information related to accounts receivable provided to UCI of SC is materially
accurate and reflect valid, binding, and enforceable rights of the Business
which shall be lawfully transferred to UCI of SC hereunder.
5.13 No Adverse Conditions. Except as previously disclosed in writing
to UCI of SC, there are no adverse conditions or circumstances that may
interfere with the use and enjoyment of, or opportunity to resell or encumber,
any of the Assets.
5.14 Brokerage. Seller has not dealt with a broker in connection with
this transaction and no brokerage commission nor claim thereof shall accrue or
become payable to any person or entity respecting this transaction.
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5.15 Disclosures. To the best of Seller's knowledge, all information
and data furnished by Seller to UCI, UCI of SC or Doctor's Care with respect to
the Assets and the Business will be materially true, correct, and complete, and
not materially misleading.
5.16 Representations and Warranties at Closing. Except as expressly
otherwise permitted in this Agreement, the representations and warranties of
Seller set forth in this Agreement shall be as of Effective Date as though such
representations and warranties were made on such date, unless they reference a
specific earlier date whereupon, as of the Effective Date, they shall be true as
at the earlier date referenced.
5.17 Environmental. To the best of Seller's knowledge, the Premises is
not now used and has never been used, as a gasoline station or other site for
the storage of petroleum products, or as a garbage or refuse dump site, a
landfill, a waste disposed facility for the storage, processing, treated or
temporary or permanent disposal of regulated waste materials, indulging without
limitation, solid, industrial, toxic, hazardous, radioactive, nuclear,
putrescible, waste or sewage; and, to the best of Seller's knowledge, the
Premises is in substantial compliance with all applicable environmental laws,
regulations, codes and ordinances.
6. Representations and warranties of UCI, Doctor's Care and UCI of SC. UCI,
Doctor's Care and UCI of SC hereby represent, warrant, and covenant as follows:
6.1 Organization and Good Standing. UCI is a corporation duly
organized, validly existing, and in good standing under the laws of the State of
Delaware and has full corporate power to carry on its businesses and to own and
operate its properties and assets as presently owned and operated. UCI of SC is
a corporation duly organized, validly existing, and in good standing under the
laws of the State of South Carolina and has full corporate power to carry on its
businesses and to own and operate its properties and assets as presently owned
and operated. Doctor's Care is a professional association duly organized,
validly existing, and in good standing under the laws of the State of South
Carolina and has full corporate power to carry on its businesses and to own and
operate its properties and assets as presently owned and operated.
6.2 Authority of Buyer. UCI, Doctor's Care and UCI of SC each have
taken all corporate action necessary to approve and authorized the execution of
this Agreement, and to consummate the transactions contemplated hereby. Each of
their respective representatives signing this Agreement has full power and
authority to execute this Agreement in the indicated capacity and to consummate
the transactions contemplated hereby. When executed and delivered, this
Agreement shall constitute valid and binding obligations of UCI, Doctor's Care
and UCI of SC, enforceable in accordance with its terms and conditions except as
enforcement may be limited by applicable bankrupt, insolvency or similar laws
effecting creditors rights generally and by principles of equity. Neither the
execution nor the delivery of this Agreement nor the consummation of the
transactions contemplated hereby, nor compliance with all of the terms and
conditions hereof, will result in the breach by UCI, Doctor's Care or UCI of SC
of any of the terms, conditions or provisions of any of their respective of
trust, order, judgment, law, or other contract, agreement or instrument to which
either of them is a party, or by which either is bound, or constitute a default
of such indenture, mortgage, deed of trust, order, judgment, law, or other
contract, agreement or instrument.
6.3 Brokerage. Neither UCI, Doctor's Care, nor UCI of SC has dealt with
any broker in connection with this transaction and, no brokerage commission nor
claim therefor shall accrue or become payable to any person or entity respecting
this transaction.
6.4 Consents. No consent of any third party is
required in connection with the purchase and acceptance of the Assets
from Seller hereunder.
6.5 Litigation. There are no judicial or administrative actions or
proceedings pending, or to the best knowledge of UCI, Doctor's Care or UCI of
SC, threatened that question the
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validity of this Agreement or any transaction contemplated hereby, which
if adversely determined would have a material adverse effect upon their
ability to tender into this Agreement or perform their respective
obligations hereunder.
6.6 Creditors, Solvency and Bankruptcy. UCI, Doctor's Care or UCI of SC
shall not hinder, delay, defraud or avoid any obligations to any past, present
or future creditor in the transactions contemplated by this Agreement. The
above-mentioned parties are currently solvent and will not be rendered insolvent
as a result of the transactions contemplated hereby. UCI, Doctor's Care or UCI
of SC does not intend to initiate with respect to itself as a debtor, nor do
they expect to have initiated against it as a debtor, any proceeding under
federal or any state's bankruptcy, insolvency or similar laws.
6.7 Representations and Warranties at Closing. Except as expressly
otherwise permitted in this Agreement, the representations and warranties of
UCI, Doctor's Care and UCI of SC set forth in this Agreement shall be true at
the Effective Date as though such representations and warranties were made on
such date, unless they reference a specific earlier date whereupon, at Effective
Date, they shall be true as at the earlier date referenced.
7. Conditions Precedent.
7.1 Conditions of UCI, UCI of SC and Doctor's Care. The obligations of
UCI, UCI of SC and Doctor's Care hereunder shall be subject, to the extent not
waived, to the satisfaction of each of the following conditions at the Closing:
7.1.1 Representation and Warranties. The representations and
warranties of Seller contained in this Agreement shall be true and correct in
all material respects as of the date when made and, except for changes
specifically contemplated by this Agreement, on and as of the Effective Date as
though such representations and warranties had been made as of the Effective
Date.
7.1.2 Deliveries. The release of documents
which Seller is obligated to make under Section 4 shall have been
made.
8. Cost and Expenses .
8.1 Transactional Cost. The parties hereto shall be responsible for
their respective attorney's fees, accountants' fees, experts' fees, and other
expenses incurred by them in connection with the negotiations and Closing of
this transaction; provided however, in the event litigation is commenced to
enforce any rights under this Agreement or to pursue any other remedy available
to any party, all legal expense or other direct costs of litigation of the
prevailing party shall be paid by the other party.
8.2 Proration of Taxes and Charges. All personal property taxes, public
utility charges and like charges (which are not terminated and paid as of
Closing by Seller), if any, relating to the personal (tangible and intangible)
property comprising the Assets shall be prorated as of the Effective Date, in
accordance with regular accounting procedure. Settlement at Closing will be made
on proration of estimates of such taxes and charges. If, as the result of such
proration at Closing, a net balance is owed by Seller to UCI of SC, or visa
versa, the amount thereof shall be paid to such party at or within thirty (30)
days after receipt of the next succeeding payment notice.
8.3 Sales Taxes. Buyer shall be responsible for, and shall pay,
all sales taxes, if any, applicable to the sale of the Assets as called for
herein.
9. Indemnity. Seller shall indemnify and hold UCI, Doctor's Care and UCI of SC
and their respective officers, directors and agents harmless, from any and all
losses, damages, liabilities claims,
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suits, demands, penalties, assessments, obligations, causes of actions
or costs (including reasonable litigation expenses and legal fees)
asserted against or incurred by UCI, Doctor's Care or UCI as a result of
the proven breach by Seller of any covenant, warranty representation, or
agreement, made by Seller herein or in agreements related hereto
including but not limited to litigation expenses and legal fees that
might be incurred because of such breach.
10. Existing Liabilities. Neither UCI, Doctor's Care nor UCI of SC assumes any,
and hereby expressly disclaims all, obligations or liabilities of Seller,
contingent or absolute, including (without limitation) liabilities for (I)
federal or state income, payroll, property, or sales taxes for any period, or
(ii) any tort, contract, or statutory liability resulting from or alleged to
have resulted from the Business prior to the Effective Date or operations of
Seller prior to Effective Date, except for the obligations arising and maturing
after the Effective Date to perform under those contracts expressly assumed by
Buyer hereunder. All property taxes assessed against the Assets solely hereby
shall be prorated as of the Effective Date.
11. Risk of Loss. In the event the Assets or any substantial part thereof shall
be damaged or destroyed prior to the Effective Date due to any casualty or
event, or there shall occur any actions for condemnation or eminent domain
having a material adverse affect on the Assets or any substantial part thereof,
Seller shall promptly notify UCI of SC that such damage, destruction, or action
has occurred and the estimated extent thereof. In case the amount of such
damage, destruction, condemnation or eminent domain is in excess of 10% of the
Purchase Price, including but not limited to the value of the UCI Common Stock
more fully described in Section 3.11 ,of all of the Assets immediately before
such damage or destruction, then UCI of SC must within five (5) days of receipt
of such notice either:
11.1 Termination. Terminate this Agreement by giving
Seller written notice of such termination and thereupon all parties
shall be released of all further liability to the others; or
11.2 Adjustment. Alternatively, and subject to the fulfillment of the
conditions set forth herein, require the consummation of the transactions
provided for in this Agreement and, in such case (or in case of any damage by
fire or other casualty, or condemnation or eminent domain action not entitling
UCI of SC to terminate this Agreement), all proceeds of insurance covering the
Assets and all of the claims arising as a result of such damage or destruction
to such Assets or all proceeds of such condemnation or eminent domain action for
such Assets shall become the property of UCI of SC. In the event UCI of SC
elects to require the consummation of the transactions contemplated herein,
Seller shall not compromise or settle any such claim or action at any time
without the written consent of UCI of SC which shall Further, in such event, the
representations and warranties of seller, as set forth in Section 5 shall be
modified equitably to account for such claim or action. In this regard, Seller
represents and warrants that the face amount of the subject fire and casualty
insurance exceeds 10% of the Purchase price, including the value of stock more
fully described in Section 3.11.
12. Miscellaneous.
12.1 Entire Agreement. This Agreement, including the
Exhibits hereto, embodies the entire Agreement and understanding between
the parties hereto as to the matters herein addressed and supersedes all
prior agreements and understandings relating to the subject matter
hereof.
12.2 No Waiver. No failure to exercise, and no delay in exercising any
right, power or remedy hereunder or under any document delivered pursuant hereto
shall impair any right, power or remedy which the parties hereto may have, nor
shall any such delay be construed to be a waiver of any such rights, powers or
remedies, or any acquiescence in any breach or default under this Agreement, nor
shall any waiver of any breach or default of any party hereunder be deemed a
wavier of any default or breach subsequently occurring.
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12.3 Survival. All representations, warranties,
covenants, and agreements herein contained shall survive the Closing
hereunder.
12.4 Amendment. No provision of this Agreement or any document or
instrument relating to the Agreement, may be amended, modified, supplemented,
changed, waived, discharged, or terminated, unless the parties hereto consent
thereto in writing.
12.5 Notices. All notices, requests, approvals, consents, demands and
other communication provides for or permitted hereunder shall be in writing,
signed by an authorized representative of the sender and addressed to the
respective Party at the address set forth below:
Buyer: UCI of SC
0000 Xx. Xxxxxxx, Xxxx
Xxxxxxxx, XX 00000-0000
Attn.: X.X. XxXxxxxxx, III, MD
Seller: Xxxxxx X. Xxxx, MD
0000 Xxxxx Xxxx Xxxx
Xxxxxxxxxx, XX 00000
A party hereto may change its respective address by notice in writing given to
the other parties to this Agreement. Any notice, request, approval, consent,
demand or other communication shall be effective upon the first to occur of the
following; (I) when delivered to the party to whom such notice, request,
approval, consent, demand or the communication is being given, or (ii) five (5)
business days after being duly deposited in the US mail, certified, return
receipt requested.
12.6 Severability of Provisions. In case any one or more of the
provisions contained in this Agreement should be invalid, illegal or
unenforceable in any respect, the validity, legality and enforceability of the
remaining provisions contained herein shall not in any way be affected or
impaired thereby.
12.7 Successors and Assigns. This Agreement shall be binding upon the
parties, and their respective successors and assigns, and shall inure to the
benefit of the parties and their respective successors and permitted assigns.
12.8 Counterparts. This Agreement may be executed in any number of
counterparts, all of which taken together shall constitute one Agreement, and
any party hereto may execute this Agreement by signing any such counterpart. The
authorized attachment of counterpart signature pages shall constitute execution
by the parties.
12.9 Choice of Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of South Carolina.
12.10 Jurisdiction. The parties hereto consent to jurisdiction, subject
to proper service of process, in the State of South Carolina regarding any
disputes arising hereunder.
12.11 Usage. The section and paragraph headings contained in this
Agreement are for reference purposes only and shall not affect in any way the
meaning or interpretation of this Agreement. Terms such as "hereof" ,
"hereunder", "hereto", "herein", and words of similar import shall refer to this
Agreement in its entirety and all references to "Articles", "Paragraphs",
"Sections", and similar cross references shall refer to specified portions of
this Agreement, unless the context clearly requires otherwise.
12.12 Further Instruments and Acts. From time to time at a party's
request, whether at or after Closing and without further consideration, the
other party(ies) shall execute and deliver such
29
further instruments of conveyance, transfer and assignment and upon
reimbursement for actual reasonable out-of-pocket expenses take such
other action as the requesting party reasonably may require to more
effectively convey and transfer to the requesting party the properties
to be conveyed, transferred and assigned hereunder, and, if necessary,
will assist the requesting party in the collection or reduction to
possession of such property. In addition, each party agrees to provide
reasonable access to records respecting the Business as are requested by
the other party(ies) for proper purpose with good cause shown (subject
to appropriate confidentiality agreements to be negotiated as such time)
and agree to reasonably cooperate in resolving any matters resulting
from the transactions contemplated hereby.
12.13 Assignment. This Agreement is not assignable by
any party without the prior written consent of the other party(ies)
hereto.
IN WITNESS WHEREOF, the parties have executed this Asset Purchase Agreement
under seal, with the corporate parties acting by and through their duly
authorized offers, as of the date first above written.
BUYER:
UCI MEDICAL AFFILIATES, INC.
By: /s/ X.X. XxXxxxxxx, III, M.D.
Its: President & Chief Executive Officer
UCI MEDICAL AFFILIATES OF SOUTH
CAROLINA, INC.
By: /s/ X.X. XxXxxxxxx, III, M.D.
Its: President & Chief Executive Officer
DOCTOR'S CARE, P.A.
By: /s/ X.X. XxXxxxxxx, III, M.D.
Its: President
SELLER:
XXXXXX X. XXXX, MD, P.A.
By: /s/ Xxxxxx X. Xxxx, M.D.
Its: President
30
EXHIBITS TO ASSET PURCHASE AGREEMENT
EXHIBIT NO. DESCRIPTION PAGE NUMBER
Exhibit A Furniture, Fixtures and Equipment 32
Exhibit B Equipment Lease Agreement Summary 33
Exhibit C Investment Letter 34
Exhibit D Xxxx of Sale 37
Exhibit E Assignment and Assumption Agreement 38
Exhibit F Employment Agreement 39
31
EXHIBIT A
FURNITURE, FIXTURES AND EQUIPMENT
5 Chart Shelves
1 Sound System
1 Typewriter
1 Konica Copier
1 Casio FR2600 10 Key
1 Answering Machine (1309 ATT)
1 Electric Pencil Sharpener
5 Multi Line Phones
3 Single Line Phones
1 QBC Auto Reader
1 Reflatron
1 Burdeck E350i EKG
2 Swivel Chairs
11 Stack Chairs
2 5' Folding Tables
1 48" Round Folding Table
2 Refrig/Freezer Comb.
1 AutoClave w/cabinet
1 Microwave
1 Coffee pot
10 Wall mounted wire shelves
5 Exam Tables
1 Ox Tank and regulators
1 Infant Scale
1 Sigmoid Scope
1 Hyfrecator
1 Noxide Tank and regulator
2 Used EKG machines
7 Pressure Cuff-Sphygmomanometer
4 OTI Scopes with 2 rechargers
13 Waiting Room Chairs
1 Coffee Table
1 0-xxxxxx xxxxxxx (xxxxxxxxxxxx xxxx)
1 Full scale
4 Drawer file cabinet
1 Wheel Chair
1 Fax Machine
4 Small tables
5 Portable floor lights
32
EXHIBIT B
EQUIPMENT LEASE AGREEMENT SUMMARY
Below is a summary of the Equipment Lease Agreement:
Effective Date: Xxxxx 00, 0000
Xxxx of Lease: 36 Months
Lease Payment: $204.70 per month
Supplier: PSS
0000 Xxxxxx Xxxx, Xxxxx 000
Xxxxxxxx, Xxxxx Xxxxxxxx 00000
Equipment: 1 Xxxxxxx E 350I EKG
33
EXHIBIT C
INVESTMENT LETTER
TO: UCI Medical Affiliates, Inc.
0000 Xx. Xxxxxxx Xxxx
Xxxxxxxx, XX 00000
ATTN: President
RE: Issuance of Common Stock in UCI Medical Affiliates, Inc.
Dear Sir,
On this date, you are issuing to the undersigned ("Transferee") the
number of shares of the common stock, $0.05 par value, of UCI Medical
Affiliates, Inc. (the "Company") as are set forth on the signature page of this
letter (the "Shares"). In consideration of your agreement to issue the Shares to
transferee, Transferee hereby represents and warrants to you and hereby
covenants and agrees with you, as follows:
1. Transferee is acquiring the Shares solely for transferee's own account and
not as nominee for, representative of, or otherwise on behalf of any other
person or entity. Transferee is acquiring the Shares with the intention of
holding the Shares for investment purposes only, and transferee has no present
intention of participating, directly or indirectly, in a subsequent sale,
transfer or other distribution of the shares, or of dividing Transferee's
interest in the Shares with any other person or entity. Transferee has not
offered any of the Shares for sale or disposition, and Transferee shall not make
any sale, transfer or other disposition of the Shares in violation of state or
federal law.
2. The Transferee considers himself to be a sophisticated investor in companies
similarly situated to the Company, and Transferee has such knowledge and
experience in financial and business matters as to be capable of evaluating the
merits and risks of the prospective investment in the Shares. Transferee
understands that there is no public market for the Shares, no public market for
the shares is likely to develop and it may not be possible for Transferee to
readily liquidate his investment. Transferee is aware that his investment in the
Company is speculative and involves a high degree of risk of loss arising from,
among other things, substantial market, operational, competitive and other
risks, and has made his own evaluation of the risks associated with this
investment.
3. The shares were not offered to Transferee by means of any form of general or
public solicitation or general advertising, or publicly disseminated
advertisements or sales literature including,(a) any advertisement, article,
notice, or other communication published in any newspaper, magazine, or similar
media, or broadcast over television or radio or (b) any seminar or meeting to
which transferee was invited by any of the foregoing means of communications.
4. Transferee's investment in the shares is reasonable and consistent with the
nature and size of his present investments and net worth, Transferee has no need
for liquidity in the investment represented by shares, and Transferee is
financially able to bear the economic risk of this investment, including the
ability to afford holding the Shares for an indefinite period of time and to
afford a complete loss of this investment.
5. Transferee is aware that the Company may offer and sell additional shares of
common stock in the future, thereby diluting his percentage equity ownership of
the Company.
6. Transferee has had an individual income in excess of $110,000 in each of he
two most recent years and reasonably expects an income of the same or higher for
the current year.
34
7. Transferee understands that as a publicly traded company, the Company files
with the SEC various reports, including quarterly and annual financial
statements, annual reports to shareholders, and proxy statements, and that all
of such reports, statements and information are available to the public,
including Transferee, from the SEC and directly from the Company. Transferee has
been given the opportunity to obtain copies of such public information and to
ask questions of, and receive answers from, you with respect to the Company and
the Shares, concerning the terms and conditions of the issuance of the Shares by
you to Transferee, and has been given the opportunity to obtain such additional
information necessary to verify the accuracy of any information provided to
Transferee by you in order for Transferee to evaluate the merits and risks of an
investment of the Shares to the extent that you possess such information or
could acquire it without unreasonable effort or expense. Transferee has been
furnished with all information concerning the Shares and the Company that
Transferee desires.
8. In regard to any economic or legal considerations related to the Shares,
Transferee has relied on the advice of, or consulted with, only Transferee's own
advisors, and Transferee has not relied upon you, the Company, the Company's
legal counsel or the accountants for the Company regarding the Shares or the
Transaction contemplated by this Investment Letter.
9. Transferee understands and acknowledges that the issuance of the Shares to
Transferee was not registered under the Act or under the securities laws of any
state in reliance upon an exemption or exemptions contained in the Act (and the
regulations promulgated thereunder) and applicable state securities laws.
Consequently, Transferee understands that the Shares cannot be subsequently
transferred unless they are registered under the Act and applicable state
securities laws, or unless an exemption from such registration is available.
Transferee understands and acknowledges that any certificate will bear a legend
restricting the transfer of such Shares consistent with the foregoing, and
Transferee understands that a notation may be made in the stock records of the
Company restricting the transfer of any of the Shares in a manner consistent
with the foregoing.
10. Transferee understands and acknowledges that neither the Company nor you are
under any obligation to register the Shares for public sale or to comply with
the conditions of Rule 144 promulgated by SEC under the Act or to take any other
action necessary in order to make available any exemption for the subsequent
transfer of the Shares without registration.
11. Transferee is eighteen (18) years of age or older, his bona fide principal
residence is at the address shown under his signature evidencing my execution of
this Investment Letter, and he has no present intention of removing himself from
his existing state of residence.
12. Transferee confirms that the representations he has previously made to the
Company and those contained in this Investment Letter are correct and complete
as of the date hereof, and that if there should occur any material change in
such representations prior to the receipt of the Share by Transferee, he agrees
that he will immediately furnish such revised or corrected representations or
information to the Company.
35
This investment letter shall be binding upon the Transferee and the
Transferee's heirs, executors, administrators, successors, representatives and
assigns and shall ensure to the benefit of you, your heirs, executors,
administrators, successors and assigns. This investment letter shall be governed
and construed in accordance with the laws of the State of South Carolina.
TRANSFEREE:
/s/ Xxxxxx X. Xxxx
Number of shares of
UCI Medical Affiliates, Inc.
to be issued:
Xxxxxx X. Xxxx, M.D., P.A.
(Please print name here)
60,000 Shares
0000 Xxxxx Xxxx Xxxx, Xxxxx 00
Date: 12/1/95 (Street Address)
Xxxxxxxxxx, XX 00000
(City, State, Zip)
36
EXHIBIT D
XXXX OF SALE
KNOW ALL MEN BY THESE PRESENTS, that Xxxxxx X. Xxxx, M.D., P.A. ("Seller"), for
good and sufficient consideration the value of which is hereby acknowledged,
does hereby sell, assign and transfer unto UCI Medical Affiliates, Inc., a South
Carolina corporation with offices at 0000 Xx. Xxxxxxx Xxxx, Xxxxxxxx, Xxxxx
Xxxxxxxx 00000 ("Buyer") all of Seller's right, title and interest in and to,
all the equipment, fixtures and other tangible personal property composing
portions of the Assets described in the Asset Purchase Agreement dated as of
December 1, 1995, by, between and among Seller, Buyer, UCI Medical Affiliates,
Inc. and Doctor's Care, P.A.
("Agreement"), all as provided in the Agreement.
TO HAVE AND TO HOLD the same unto Buyer, its successors and assigns, forever.
AND Seller does for himself and his heirs, successors and assigns, covenants and
agrees to and with Buyer, its successors and assigns, to warrant and defend the
sale and conveyance of the aforesaid assets hereby sold unto Buyer.
This Xxxx of Sale is made, executed and delivered pursuant to the Agreement, and
is subject to all of the terms, provisions, and conditions thereof, including
(without limitation) the indemnification provisions set forth therein. To the
extent of any conflict between the terms hereof and thereof, the terms of the
Agreement shall be controlling.
All capitalized terms not otherwise defined herein shall have the meanings
ascribed to them in the Agreement unless the context clearly requires otherwise.
IN WITNESS WHEREOF, Seller has duly executed this Xxxx of Sale as of this
1st day of December, 1995, to be effective as of December 1, 1995.
Seller: Xxxxxx X. Xxxx, M.D., P.A.
By: /s/ Xxxxxx X. Xxxx, M.D., P.A.
Its: President
37
EXHIBIT E
ASSIGNMENT AND ASSUMPTION AGREEMENT
KNOW ALL MEN, that Xxxxxx X. Xxxx, M.D., P.A., ("Assignor"), for good and
sufficient consideration the value of which is hereby acknowledged, does hereby
assign to UCI Medical Affiliates of South Carolina, Inc., a South Carolina
corporation ("Assignee") all of Assignor's right, title and interest in and to
the intangible assets and rights composing portions of the Assets as described
in the Asset Purchase Agreement dated as of December 1, 1995 by, between and
among Assignor, Assignee, UCI Medical Affiliates, Inc. and Doctor's Care, P.A.
(the "Agreement"), all as provided in the Agreement.
Assignee hereby covenants with Assignor to assume and faithfully perform and
discharge all of the terms, covenants, liabilities and obligations (subject to
the Agreement) maturing and to be performed or discharged by Assignor under the
above assigned contracts and warranties beginning on December 1, 1995 and
henceforth.
This Assignment is made, executed, and delivered pursuant to the Agreement, and
is subject to all the terms, provisions and conditions thereof, including
(without limitation) the indemnification provisions therein. To the extent of
any conflict between the terms hereof and thereof, the terms of the Agreement
shall be controlling.
All capitalized terms not otherwise defined herein shall have the meanings
ascribed to them in the Agreement unless the context clearly requires otherwise.
IN WITNESS WHEREOF, the parties have duly executed this Assignment and
Assumption Agreement as of this 1st day of December, 1995, to be effective as of
December 1, 1995.
ASSIGNOR:
Xxxxxx X. Xxxx, M.D., P.A.
By: /s/ Xxxxxx X. Xxxx, M.D., P.A.
Its: President
ASSIGNEE:
UCI MEDICAL AFFILIATES
OF SOUTH CAROLINA, INC. (SEAL)
By: /s/ X.X. XxXxxxxxx, III, M.D.
Its: President & Chief Executive Officer
00
XXXXXXX X
XXXXX XX XXXXX XXXXXXXX )
EMPLOYMENT AGREEMENT
COUNTY OF GREENVILLE )
THIS AGREEMENT made and entered into this 1st day of December,
1995 between Doctor's Care, P. A. (hereinafter "Employer"), a South
Carolina Professional Association with its principal office in
Columbia, South Carolina, and Xxxxxx X. Xxxx, M.D. (hereinafter
"Employee)
WHEREAS, Employer is a South Carolina Professional Association and
wishes to employ the Employee to render services for it; and,
WHEREAS, Employee is a licensed physician in South Carolina and desires
and is willing to become a professional employee of Employer, in accordance with
the following terms, conditions, and provisions:
NOW, THEREFORE, for and in consideration of the promises herein and
other valuable consideration, it is agreed that:
(1) Employment Term. Subject to the provisions for termination as
hereinafter provided, the term of this Agreement shall be five (5) years
beginning December 1, 1995. After the initial five (5) year term, this Agreement
shall be renewable upon the mutual agreement of both parties.
(2) Duties.
(A) Employee shall devote his full-time and
professional skill and attention to the
performance of services in the practice for
the benefit of Employer at 0000 Xxxxx
Xxxx Xxxx, Xxxxxxxxxx, XX 00000 or such
other location within the Berea area as shall
be reasonably assigned by Employer.
Employee's duty schedule shall be determined
by Employer, and Employee shall provide such
emergency evening and weekend coverage as
shall be needed and be reasonably assigned
to Employee by Employer. From December 1,
1995 through December 31, 1997 Employer
shall work for Employer an average of not
less than forty (40) hours per week but in no
case more than fifty (50) hours per week.
Beginning January 1, 1998 through December
31, 1998, Employee has the option, at his
discretion, of reducing by up to fifty
percent the number of hours he shall work
for Employer, with a proportionate, pro-rata
reduction in Employee's compensation.
Beginning January, 1999, Employee has the
option, at his discretion of reducing by
up to 67 percent of his pre January 1, 1998
working hours the number of hours he shall
work for Employer, with a proportionate,
pro-rata reduction in compensation.
(B) Employee shall not engage in any
outside professional activities involving the
personal services of Employee and yielding a
financial return without Employer's prior
written consent. However, nothing stated
herein shall restrict or prevent employee
from personally and on Employee's own
account, investing in stocks, bond
securities, commodities, real estate, or
other forms of investments.
(C) Employee will actively and
industriously pursue his profession in
Employer's interest, will faithfully adhere
to the principles and ethics of the
profession, and will carefully avoid any and
all personal acts, habits and usages which
might injure in any way, directly or
indirectly, Employer's professional
39
reputation or that of any other employee of
Employer, or which might otherwise be
detrimental to any interest of Employer.
(D) Employee hereby agrees that all fees
received or collected as a result of professional
services rendered by Employee, together with all
other emoluments, e.g., witness fees, report fees,
speaker fees, etc., shall be the property of
Employer. Accordingly, Employee acknowledges that
Employee's employment renders him an agent and
servant of Employer and does not confer upon Employee
any ownership interest in or professional claim upon
any fees charged by Employer for Employee's services,
whether said fees are collected during Employee's
employment or after termination thereof.
(3) Compensation.
(A) Regular Compensation. For services
rendered under this Agreement, Employer shall pay the
Employee an initial salary of One Hundred-Sixty
Thousand Dollars & 00/100 Dollars ($160,000.00) per
year payable biweekly unless otherwise requested by
Employee and approved by Employer, provided however,
that any election by Employer pursuant to Section
2(a) of the Agreement to reduce his working hours
shall result in a proportionate, pro-rata reduction
in Employee's level of compensation.
(B) Changes in Compensation. From time to
time, increases in the Employee's salary may be made,
said increases to be reflected on the "Schedule of
Compensation" attached hereto and made apart hereof.
(C) Bonuses. Employer may, from time to time
review Employee's compensation arrangement with
respect to the payment of a bonus for superior
performance and contributions to Employer. Factors to
be considered in making a bonus payment, if any,
shall include but not be limited to Employee's
demonstrated commitment to quality care, the results
of patient satisfaction surveys and patient audits,
employee's ability to build and enhance a patient
base, and Employee's contributions to the Employer's
accomplishment of company goals; provided however
that the decision to make bonus payments, if any,
shall be at the sole discretion of Employer.
(4) Fringe Benefits. As further consideration for the
performance by Employee of the services set forth herein,
Employee shall be eligible on a non-discriminatory basis for
participation in any tax qualified deferred compensation plan
maintained by Employer. However, Employee understands that the
decision to maintain any such plans shall be in sole
discretion of Employer.
(A) Health Insurance Coverage.
Employer shall provide health insurance for
Employee at its expense. Family coverage is
available at Employee's sole cost and
expense.
(B) Group Term Life Insurance
& Group Disability Insurance. Employer,
at its cost, shall furnish life and
disability insurance for Employee.
(5) Vacation and Professional Meetings. Beginning with the
first year of employment during this Agreement, Employee shall
be entitled to three weeks of paid vacation and an additional
one week of paid leave to attend conventions, professional
meetings, and continuing medical education. All above leave
shall be taken on reasonable prior notice and at such time or
times as shall be agreed to by Employer and that does not
interfere with
40
proper operation of the Practice. Unused
vacation time may be carried over from year to year .
(6) Inability to Perform Essential Services. If Employee is
unable to perform the essential professional services
contemplated by this Agreement as a result of illness or
incapacity, Employee shall continue to receive for a period of
one month those employee benefits, if any, provided for
Employee by Employer. Anything to the contrary contained
herein notwithstanding, if Employee is not able to resume the
performance of such essential professional duties within one
(1) month and one day (1) of the date Employee was first
unable to perform such duties, Employee may be deemed, at the
sole discretion of the Employer, to have terminated this
Agreement and Employer shall have the right to pursue all
remedies set forth herein related to such a termination.
(7) Equipment and Expenses.
(A) Facilities. Employer shall provide and
pay for suitable office space and facilities,
furniture, fixtures, equipment, supplies, employees
and assistants necessary and appropriate for the
proper performance of the duties of Employee.
(B) Professional Liability Insurance.
Employer shall either pay or, upon proof of payment
by the Employee, reimburse the Employee for the cost
of Professional Liability (malpractice) Insurance
covering the Employee for services provided
hereinunder for claims as follows: the first One
Hundred Thousand Dollars ($100,000) in coverage shall
be through the South Carolina Medical Malpractice
Joint Underwriters Association ("JUA"); the excess
coverage shall be provided through the South Carolina
Patients' Compensation Fund ("PCF"). Employee
understands that the amount of coverage provided by
JUA and PCF may not be adequate to protect Employee
against all claims and that the responsibility of
securing additional insurance coverage, if any, is
solely that of Employee.
(8) Employee Death. If Employee dies while this Agreement is
in full force and effect, Employer shall pay to Employee's
named beneficiary, or in default of the named beneficiary to
Employee's estate, all salary accrued but unpaid through the
pay period which includes the date of Employee's death.
(9) Patients and Records. Employer and Employee agree that all
patient lists, records, and charts are the property of
Employer, and that upon termination of this Agreement,
Employee shall not be entitled to receive any patient lists,
records, or charts whether or not the Employee shall have seen
or attended any patient; provided however, if Employer becomes
insolvent or bankrupt, Employee shall be entitled to copies of
the medical records for those patients he has personally
treated. Record keeping for patients treated by Employee shall
be the sole responsibility of Employee, and Employee shall
complete all such charts and records for such patients in
accordance with professional standards.
(10) Policy Decisions. It is understood that Employer shall
have the sole and exclusive right of management over the
practice, including without limitation, the determination of
the professional standards to be observed, the determination
of the fees to be charged, and the determination of the office
hours to be maintained.
41
(11) Conditions of Termination. Physicians
understands and agrees that cause for termination
of employment includes, but is not limited to the
following:
(A) At any time by mutual agreement
in writing between Employer and Employee.
(B) At the loss or the suspension of the
right to conduct the practice of medicine by
Employee, or the loss, or suspension of any right or
privilege necessary or incident thereto, or the loss,
suspension, or limitation of Employee's Controlled
Substance license, or if Employee performs any
negligent or intentional act which directly or
indirectly damages the reputation or property of
Employer.
(C) At the death of Employee, provided
however, that the provisions of this Agreement
regarding Employee's death shall be performed by the
Employer.
(D) At the option of the Employer, upon
thirty (30) days prior written notice for "good
cause", which shall mean failure of Employee to
provide the agreed duties hereunder or willful
violation by Employee of any of the terms of this
Agreement. In the event Employer exercises its rights
under this provision, Sections 13(B), 13(C) and 13(D)
of this Agreement shall be inapplicable.
(E) Upon a party hereto failing to perform
any covenant or condition hereunder within thirty
(30) days after written notice and demand, the
non-defaulting party may terminate this Agreement. In
the event Employer exercises its rights under this
provision, Sections 13(B), 13(C) and 13(D) of this
Agreement shall be inapplicable.
(F) Upon the bankruptcy, insolvency or
assignment for the benefit of the creditors of
Employer, or any other type of voluntary or
involuntary creditors proceeding involving the
property of Employer. If any of these specific events
should occur, Sections 13(B), 13(C) and 13(D) of this
Agreement shall be inapplicable.
(G) Upon Employee's failure to
satisfactorily comply with accepted standards of
medical practice and professional conduct.
(H) If Employee engages in the abuse of
drugs, intoxicants or other mood-altering substances
or if Employee treats or attempts to treat a patient
while under the influence of drugs, intoxicants or
other mood-altering substances.
(I) Upon thirty days notice, at the option
of the Employer if Employee does not satisfy the
credentialing requirements of any managed care or
other insurance or reimbursement plan in which
Employer participates.
(12) Non-Disclosure of Information. Employee shall not, at any
time after the date hereof, directly or indirectly, divulge or
disclose for any purpose whatsoever any confidential
information that has been developed or obtained by, or
disclosed to, Employee by Employer at any time or after the
date hereof (exclusive of such information as is in the public
domain). Employee acknowledges that such confidential
information is of a special and unique nature and value
relating to matters of Employer's business, including, without
limitation, Employer's patents, copyrights, proprietary
information, trade secrets, trademarks, systems, procedures,
manuals, confidential reports, records, operational expertise,
locations and lists of clients and potential clients, pricing
information and lists, marketing materials
42
and methods, the nature and type of services rendered
by Employer, the methods used and preferred by
Employer's clients, and the fees paid by them (all of
which are deemed for all purposes to be confidential,
proprietary, and trade secrets of Employer). Any
confidential information in Employee's possession
shall be returned to Employer upon any termination or
expiration of this Agreement.
(13) Covenants Against Competition.
A. Exclusivity. For the period of Employee's
retention by Employer, Employee will not, directly or
indirectly, plan, operate, organize or otherwise be
involved in any primary or urgent care facility of a
type similar to those operated by Employer other than
on behalf of Employer. Employee further agrees that
so long as this Agreement is in effect, Employee will
not undertake the planning or organizing of any
business activity competitive with the work Employee
performs for Employer.
B. Restrictive Covenant. In
addition to (but not in limitation of) the
restrictions of Section 14 (A), for the
period of Employee's retention by Employer
plus a period of two (2) years after
termination of this Agreement, Employee shall
not, directly or indirectly engage
in, or assist another person or entity to
engage in, any sales of products and services
furnished (or similar business operated) by
Employer in competition with Employer
within a five (5) mile radius of the primary
Clinic maintained, managed or otherwise
controlled by Employer at which Employee
performed services during the term of
Employee's retention by Employer
(collectively, the "Territory").
C. Ownership. In addition to
(but not in limitation of) the restrictions
of Sections 14 A and B, for the period of
Employee's retention by Employer, Employee
shall not, directly or indirectly, own an
equity interest (other than as the holder
for investment purposes only of up to 2% of
the outstanding capital stock of any
corporation which is publicly traded on a
national stock exchange or the NASDAQ
National Market System, so long as
Employee is not a controlling person of, or
a member of a group that controls, such
corporation and Employee is not otherwise
affiliated in any capacity with such
corporation) in any entity or enterprise
conducting operations in the Territory
which is competitive with Employer's
business activities.
D. Employees. In addition to
(but not in limitation of) the restrictions
of (Sections A, B and C), for the period of
Employee's retention by Employer, plus a
period of two years after termination of this
Agreement , Employee shall not, directly or
indirectly, solicit or in any manner attempt
to solicit or induce any person employed by,
or an agent of, Employer to terminate such
person's association or contract of
employment or agency, as the case may be,
with Employer.
(14) Remedy for Violation. Employer and Employee agree that
remedies at law are inadequate and that Employer may seek
injunctive relief in the event of violation of this covenant.
In addition, it is agreed that the actual damages occasioned
by any breach of the covenants by Employee not to solicit
and/or perform services except as provided above will not be
susceptible to exact determination and Employer shall be
entitled to liquidated damages in an amount equal to three (3)
times the gross fees billed by Employer to any such patients
solicited or treated in violation of this covenant during the
two (2) year (twenty four (24) month) period immediately
preceding the violation of this covenant.
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(15) Binding Agreement. This Agreement shall
be binding on the parties, their distributees,
legal representatives, successors and assigns.
(16) Notices. All notices under this Agreement shall be in
writing and shall be served by personal service or registered
mail, return receipt requested. Notice by mail shall be
addressed to each party at such party's last known address.
(17) Cost of Enforcement. Employer and Employee each hereby
agree that should they default in any of the obligations
contained herein, the defaulting party shall pay all costs and
expenses, including a reasonable attorney's fee which may
arise or accrue from enforcing this Agreement or in pursuing
any remedy provided by the statutes of the State of South
Carolina, whether such remedy is pursued by filing a suit or
otherwise.
(18) Captions. Captions and paragraph headings used
herein are for convenience only and are not a part of this
Agreement and shall not be used in construing it.
(19) Governing Law. This Agreement shall be
governed by the Laws of the State of South Carolina.
(20) Waiver. Waiver by either party of a breach or violation
of any provision of this Agreement shall not operate as or be
construed as a waiver of any subsequent breach thereof.
(21) Severability. If any provision of this Agreement, or
portion thereof, shall be declared invalid or unenforceable,
the remainder of this Agreement shall continue in full force
and effect.
IN WITNESS WHEREOF, the parties have executed this Agreement on the date first
set forth above.
DOCTOR'S CARE, P. A.
EMPLOYER:
By: /s/ X.X. XxXxxxxxx, III, M.D.
M.F. XxXxxxxxx, III, M.D.
Its: President
EMPLOYEE:
/s/ Xxxxxx X. Xxxx
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SCHEDULE OF COMPENSATION
Agreed To
Date Change Effective New Annual Salary Employer Employee
December 1, 1995 $160,000
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BENEFITS
1. Beginning with first year of employment:
A. Three weeks (120 hours) paid vacation.
B One week of paid leave for continuing education.
C. Participation in 401-K program after 90 days of employment.
D. Membership in the South Carolina Medical Society to be
furnished.
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