EXHIBIT 2
Asset Purchase Agreement dated June 23, 1995 and executed August 23, 1995 by and
between Xxxxx X. Xxxxx, M.D. and UCI Medical Affiliates of South Carolina, Inc.
23
ASSET PURCHASE AGREEMENT
This Asset Purchase Agreement ("Agreement") is made to be effective as
of the 23rd day of June 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 Xxxxx X. Xxxxx, M.D. (Seller), d/b/a Summit Medical.
INTRODUCTION. Seller owned and operated a medical practice located at
000-X Xxxxxx Xxxx, Xxxxxxxxxx, Xxxxx Xxxxxxxx, 00000 . 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) transfer its patient records to Doctor's Care,
(ii) become an employee of Doctor's Care pursuant to an employment agreement
between the parties dated as of June 23, 1995 and (iii) transfer to UCI of SC as
of 12:01 a.m. on 23 June 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 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 used or useful in the Business.
24
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 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 One Hundred Thousand
(100,000) shares of common stock of UCI, $0.05 par value (the "Shares"), at
Closing. The Shares, when issued, will be duly authorized, validly issued, fully
paid and nonassessable. 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
25
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 Deferred Payment. UCI of SC shall pay to Seller as follows:
(1) Three Hundred Fifty Thousand ($350,000.00) in
installments, with interest at 9.0 percent calculated
monthly as follows:
(a) The sum of Twenty-five Thousand Dollars
($25,000.00) on or before July 15, 1995.
(b) The sum of Twenty-five Thousand Dollars
($25,000.00) on or before August 15, 1995.
(c) The sum of Twenty-five Thousand Dollars
($25,000.00) on or before September 15, 1995.
(d) The remaining balance due in twenty-four (24)
equal monthly installments, and the first
payment of the series of payments due on October
15, 1995, as indicated on the Amortization
Schedule attached to Exhibit C.
(2) Payment of the Purchase Price. Payment for the
Assets shall be made by Purchaser at closing by execution and delivery of a
Promissory Note in favor of Seller (in substantially the same form as the
Promissory Note attached as Exhibit C, the Note).
4. CLOSING.
4.1 Closing Date. The closing of the sale and purchase of the Assets
and related transactions ("Closing") shall take place on August 25, 1995,
commencing at 1:00 p.m. (local time), at the Xxxxxxxx Law Firm, 000 X. Xxxxx
Xxxxxx, Xxxxxxxxxx, XX 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 D attached hereto duly executed by Seller, UCI shall issue to Seller a
certificate evidencing the Shares pursuant to Section 3.1. If such certificate
is not available at Closing, UCI will provide
26
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 E to UCI of SC.
4.3.2 The Employment Agreement dated June 23, 1998
substantially in the form attached hereto as Exhibit F to UCI.
4.3.3 An Investment Letter substantially in the form attached
hereto as Exhibit D to UCI.
4.3.4 A xxxx of sale for the Patient Records to Doctor's
Care.
4.3.5 Seller will deliver to UCI of SC copies of such duly
filed UCC termination statements, mortgages or lien satisfactions and other
documents, as are reasonably required by UCI of SC to evidence Seller's clear
and marketable title to the Assets.
27
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 for the
Cash Payment to the seller, attached hereto as Exhibit C.
4.4.4 Doctor's Care will deliver written verification of
Insurance as specified and required in the Employment Agreement at Exhibit F.
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 Valero 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.
4.6.2 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).
4.6.3 Taxes. Seller shall file such tax returns and reports
and pay such taxes as are required for periods ending as of 12:01 PM, June 23,
1995.
4.6.4 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.
28
4.6.5 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.
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
29
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
valorem 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.
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 contemplate
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
30
(without limitation) the Ad Valero, 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 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.
5.13 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.
5.14 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.
5.15 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.
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
31
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 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 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 .
32
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 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.
9.1 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, 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.
9.2 Buyer shall indemnify and hold Xx. Xxxxx X. Xxxxx and Summit
Medical and its respective officers, directors and agents harmless from any and
all losses, damages, liabilities, claims, suits, demands, penalties,
assessments, obligations, causes of action, or costs (including reasonable
litigation expenses and legal fees) asserted against or incurred by Xx. Xxxxx X.
Xxxxx or Summit Medical as the result of a proven breach by Buyer of any
covenant, warranty, representation or agreement made by Buyer 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.
33
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 of all of the Assets immediately before such damage or
destruction, then UCI of SC must, with including value of the stock more fully
described in Section 3.11 five (5) days of receipt of such notice either:
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.
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, M.D.
Seller: Xxxxx X. Xxxxx, M.D.
00 Xxxx Xxxx
Xxxxxxxxxx, XX 00000
34
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 U.S.
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 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
35
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.
36
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., (SEAL)
By: (Signature of X.X. XxXxxxxxx, III)
Its: President & CEO
UCI MEDICAL AFFILIATES OF SOUTH
CAROLINA, INC. (SEAL)
By: (Signature of X.X. XxXxxxxxx, III)
Its: President
DOCTOR'S CARE, P.A.
By: (Signature of X.X. XxXxxxxxx, III)
Its: President
SELLER:
(Signature of Xxxxx X. Xxxxx, M.D.)(SEAL)
Xxxxx X. Xxxxx, M.D.
37
EXHIBITS
Exhibit A..............................................................Machinery, equipment, supplies and other
tangible personal property
Exhibit B..............................................................Leases, contracts, goodwill and related
intangible personal property
Exhibit C .............................................................The Promissory Note
Exhibit D..............................................................Investment Letter
Exhibit E..............................................................Xxxx of Sale and Assignment
Exhibit F..............................................................Employment Agreement
Exhibit G..............................................................Patient Data
38
EXHIBIT A
Date Purchased Description Original Cost
-------------- ----------- -------------
10/92 Vertifile & Base (X-ray) $ 368.37
01/93 Dictaphone 346.00
04/93 Computer 2,000.00
07/93 Computer Accessory 89.00
01/94 Dictaphone 306.00
02/94 Fax 364.00
02/94 Shelves 71.00
06/94 Vertifile & Base (X-ray) 389.00
08/94 Dictaphone Foot Pedal 67.00
11/94 Chair (Office) 42.00
11/94 Word Processor 353.00
11/94 Refrigerator 500.00
03/95 Vacuum Cleaner 134.00
----------- ------
Total $ 6,213.37
39
EXHIBIT B
LEASED EQUIPMENT
COMPANY EQUIP AMOUNT ORIGIN MONTHLY/LENGTH PD TO DATE TOTAL
TOSHIBA EASY LEASE COPIER 12,225.05 8-92 258.00/6OMOS 8,772 15,480
BCL LEASING OFFICE 7,233.94 12-92 280.33/48MOS 8,410 13,456
MEDSTAR LEASING MEDICAL 19,794.59 12-92 1027.87/48MOS 30,836 49,338
COPELCO LEASING LAB 32,000.00 9-92 731.00/60MOS 24,123 43,860
COPELCO LEASING LAB 6,376.45 9-92 138.16/60MOS 4,559 8,290
AT & T LEASING X-RAY 23,800.00 10-92 507.29/60MOS 16,233 30,438
--------- ------ - ------
101,430.00 92,333 160,862
NOTES:
1. Balance due on all lease obligations is approximately $67,929.00.
2. Required to purchase property at the end of the leases:
BCL.................$1.00
MEDSTAR......$1.00
TOSHIBA........Fair Market Value
AT&T..............10% of Fair Market Value...paid in advance
($2,380.00 on
9-4-92)
COPELCO......10% of Purchase Price
(1). $3,200.00 [Purchase Price = $32,000.00]
(2). $637.65 [Purchase Price = $ 6,376.45]
Total value of leased property is $160,862.00
$160,862.00 Total value of leased
-92,933.00 Paid to date on leases
$ 67,929.00 Outstanding balance on
lease accounts
40
EXHIBIT C
PROMISSORY NOTE
Effective Date: July 1, 1995
For valuable consideration received, UCI Medical Affiliates of South Carolina,
Inc. (the MAKER) promises to pay to Xxxxx X. Xxxxx, MD, (HOLDER) $350,000 in
installments, with interest at 9.0 percent calculated monthly, as follows:
(1) Twenty Five Thousand ($25,000) due on July 15, 1995;
(2) Twenty Five Thousand ($25,000) due on August 15, 1995;
(3) Twenty Five Thousand ($25,000) due on September 15, 1995;
(4) The remaining balance due in Twenty Four (24) equal monthly
installments and the first payment of the series of payments due on October 15,
1995, as indicated on the amortization schedule attached.
The amounts due shall be payable in lawful money of the United States of America
to the Holder at his respective home address or at such other place as the
Holder may designate in writing.
If at any time (i) any payment under the Purchase Agreement shall be past due
and unpaid or the Maker is otherwise in default (Maker having ten (10) days as a
grace period for any payment); or (ii) Maker violates any covenant made in this
Promissory Note or the Purchase Agreement, then the whole amount evidenced by
this Note shall, at the option of the Holder, become immediately due and
payable, and Holder shall have the right to institute any proceedings upon this
Note collecting all unpaid principal and accrued, but unpaid interest, with all
cost and expenses, including, but not limited to, costs incurred protecting the
value of any collateral and reasonable attorney fees, should an attorney be
engaged to assist in collection of any past due amounts. Beginning on the date
of a default, all unpaid amounts shall accrue interest at a penalty rate equal
to an additional twelve percent (12%) per annum, compounded monthly, in addition
to any other interest charged during the period when Maker is past due or
otherwise in default until the payment demanded or other required performance
has been received in full or the Holder has waived the default.
The Maker expressly waives: (a) notice of acceptance; (b) presentment and demand
for payments due and payable; (c) protest and notice of dishonor; and (d) any
right to assert against the holder, as a defense, counterclaim, set-off, or
cross-claim any
41
defense (legal or equitable) set-off, counterclaim or claim which the Maker may
now or hereafter have against the Holder with respect to payments under this
Note (except adjustments referred to above) asserted against the Holder in a
separate action, any claim, action, cause of action, or demand that the Maker
may have.
No extension of time for payment of this Note made by agreement with any person
now or hereafter liable for the payment of this Note shall operate to otherwise
release, discharge, modify, change or affect the original liability of the Maker
under this Note, either in whole or in part. Any failure of the Maker to
exercise any rights hereunder shall not constitute a waiver of the rights to the
later exercise thereof.
This instrument was executed and delivered in the State of South Carolina and
shall be governed by and construed in accordance with the laws of the State of
South Carolina, without giving effect to the principles of conflicts of laws.
Whenever used, the word, "Maker" shall be deemed to include the respective
successors and assigns of the Maker and the singular number shall include the
plural, the plural the singular and the use of any gender shall be applicable to
all genders. All determinations as to events of default or choice of remedies
shall be made by Holder, in his sole discretion, and the other Holder shall be
bound by this determination.
This Note may not be changed orally, but only by an agreement in writing and
signed by the party against whom enforcement of any waiver, change, modification
or discharge is sought.
MAKER:
UCI MEDICAL AFFILIATES, INC.
By: (Signature of X.X. XxXxxxxxx, III, M.D.)
X.X. XxXxxxxxx, III, M.D.
Its: President
President
IN PRESENCE OF:
STATE OF SOUTH CAROLINA, COUNTY OF RICHLAND
On the 25 day of August, 1995, before me personally came X.X. XxXxxxxxx, III,
M.D. to me known to be the individual described in and who executed the
foregoing instrument, and acknowledged that X.X. XxXxxxxxx, III, M.D. executed
the same.
42
SWORN to before me this
25th day of August, 1995.
Xxxxxx X. Xxxxx (SEAL)
Notary Public for South Carolina
My Commission Expires: January 4, 2003
IN PRESENCE OF:
STATE of SOUTH CAROLINA, COUNTY OF RICHLAND
On the 25th day of August, 1995, before me personally came X.X. XxXxxxxxx,
III, M.D. as President of UCI Medical Affiliates, Inc. to me known to be
the individual described in and who executed the foregoing instrument,
and acknowledged that X.X. XxXxxxxxx, III, M.D. as President of UCI Medical
Affiliates, Inc. executed the same.
SWORN to before me this
25th day of August, 1995.
Xxxxxx X. Xxxxx (SEAL)
Notary Public for South Carolina
My Commission Expires: January 4, 2003
43
AMORTIZATION SCHEDULE
Per Promissory Note & Asset Purchase Agreement
------------------- -------------------- -----------------------
PAYMENT # DUE DATE PAYMENT
------------------- -------------------- -----------------------
1. 07/15/95 $ 25,000.00
------------------- -------------------- -----------------------
------------------- -------------------- -----------------------
2. 08/15/95 25,000.00
------------------- -------------------- -----------------------
------------------- -------------------- -----------------------
3. 09/15/95 25,000.00
------------------- -------------------- -----------------------
------------------- -------------------- -----------------------
4. 10/15/95 12,842.48
------------------- -------------------- -----------------------
------------------- -------------------- -----------------------
5. 11/15/95 12,842.48
------------------- -------------------- -----------------------
------------------- -------------------- -----------------------
6. 12/15/95 12,842.48
------------------- -------------------- -----------------------
------------------- -------------------- -----------------------
7. 01/15/96 12,842.48
------------------- -------------------- -----------------------
------------------- -------------------- -----------------------
8. 02/15/96 12,842.48
------------------- -------------------- -----------------------
------------------- -------------------- -----------------------
9. 03/15/96 12,842.48
------------------- -------------------- -----------------------
------------------- -------------------- -----------------------
10. 04/15/96 12,842.48
------------------- -------------------- -----------------------
------------------- -------------------- -----------------------
11. 05/15/96 12,842.48
------------------- -------------------- -----------------------
------------------- -------------------- -----------------------
12. 06/15/96 12,842.48
------------------- -------------------- -----------------------
------------------- -------------------- -----------------------
13. 07/15/96 12,842.48
------------------- -------------------- -----------------------
------------------- -------------------- -----------------------
14. 08/15/96 12,842.48
------------------- -------------------- -----------------------
------------------- -------------------- -----------------------
15. 09/15/96 12,842.48
------------------- -------------------- -----------------------
------------------- -------------------- -----------------------
16. 10/15/96 12,842.48
------------------- -------------------- -----------------------
------------------- -------------------- -----------------------
17. 11/15/96 12,842.48
------------------- -------------------- -----------------------
------------------- -------------------- -----------------------
18. 12/15/96 12,842.48
------------------- -------------------- -----------------------
------------------- -------------------- -----------------------
19. 01/15/97 12,842.48
------------------- -------------------- -----------------------
------------------- -------------------- -----------------------
20. 02/15/97 12,842.48
------------------- -------------------- -----------------------
------------------- -------------------- -----------------------
21. 03/15/97 12,842.48
------------------- -------------------- -----------------------
------------------- -------------------- -----------------------
22. 04/15/97 12,842.48
------------------- -------------------- -----------------------
------------------- -------------------- -----------------------
23. 05/15/97 12,842.48
------------------- -------------------- -----------------------
------------------- -------------------- -----------------------
24. 06/15/97 12,842.48
------------------- -------------------- -----------------------
------------------- -------------------- -----------------------
25. 07/15/97 12,842.48
------------------- -------------------- -----------------------
------------------- -------------------- -----------------------
26. 08/15/97 12,842.48
------------------- -------------------- -----------------------
------------------- -------------------- -----------------------
27. 09/15/97 12,842.48
------------------- -------------------- -----------------------
44
EXHIBIT D
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
45
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 having 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 the 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 the
two most recent years and reasonably expects an income of the same or higher for
the current year.
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.
46
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 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 the 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.
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.
47
TRANSFEREE:
(Signature of Xxxxx X. Xxxxx MD)
Number of shares of UCI Medical
Affiliates, Inc. to be issued:
(Printed name of Xxxxx X. Xxxxx MD)
(Please print name here)
100,000 Shares
00 Xxxx Xxxx
(Xxxxxx Address)
Date: 8-25-95
Xxxxxxxxxx, Xxxxx Xxxxxxxx 00000
(City, State, Zip)
48
EXHIBIT E
XXXX OF SALE AND ASSIGNMENT
KNOW ALL MEN BY THESE PRESENTS, that Xxxxx X. Xxxxx, M.D. ("Seller")
for good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, and intending to be legally bound hereby, has granted,
bargained, sold and released and does hereby grant, bargain, sell and release
unto UCI Medical Affiliates of South Carolina, a South Carolina corporation with
offices at 0000 Xx. Xxxxxxx Xxxx, Xxxxxxxx, Xxxxx Xxxxxxxx 00000 ( "Buyer") all
of Seller's rights, title, interest in and to, the equipment, fixtures and other
tangible personal property and to the intangible personal property composing the
Assets described in the Asset Purchase Agreement dated June 23, 1995 by and
between Seller, Buyer, UCI Medical Affiliates, Inc. and Doctor's Care, P.A.
("Agreement")
Seller does for himself and his heirs, successors and assigns, covenant
and agree to and with Buyer, its successors and assigns, to warrant and defend
the sale and conveyance of the aforementioned Assets hereby sold to Buyer.
This Xxxx of Sale and Assignment 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 thereof ,the
terms of the Agreement shall be controlling.
IN WITNESS WHEREOF Seller has duly executed This Xxxx of Sale and
Assignment as of this 25th day of August, 1995, to be effective as of
June 23, 1995.
(Signature of Xxxxx X. Xxxxx, M.D.)
Xxxxx X. Xxxxx, M.D.
00
XXXXXXX X
XXXXX XX XXXXX XXXXXXXX )
) EMPLOYMENT AGREEMENT
COUNTY OF LEXINGTON )
THIS AGREEMENT made and entered into this 23rd day of June, 1995,
between Doctor's Care, P. A. (hereinafter "Employer"), a South Carolina
Professional Association with its principal office in Columbia, South Carolina,
and Xxxxx X. Xxxxx, M.D., (hereinafter "Employee"), residing in Mauldin, South
Carolina.
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 ten
(10) year(s) beginning on or about June 26, 19 95 . After the
initial ten (10) year term, this Agreement shall continue from
year to year unless modified, amended or terminated as
specified herein.
(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 the Pelham Road
Clinic (the "Clinic") within the Greenville,
South Carolina area as shall be reasonably
assigned by Employer. Employee's duty
schedule shall be determined by Employer
and Employee shall provide such coverage as
shall be needed, excluding evenings and
weekends, and be reasonably assigned to
Employee by Employer. Additionally, the
Employee will have the "right of first
refusal" to relocate to a Clinic owned and/or
operated by the Employer as new clinics are
opened in Greenville County.
(B) Employee shall not engage in any outside
professional activities involving the
personal services of Employee and yielding a
financial return without prior coordination
with Employer. 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,
and will faithfully adhere to the principles
and ethics of the profession.
(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, (other than in
Employee's capacity as a shareholder),
whether said fees are collected during
Employee's employment
50
or after termination thereof.
Notwithstanding the foregoing, Employee shall
be entitled to all compensation derived from
his work as a consultant during times
Employee is not providing services scheduled
by the Employer in evaluation of disabilities
and/or injuries and related work as an expert
witness regarding such matters; except that
the Employer will be paid 20% of revenues
collected for use of Employer's facilities or
staff.
(3) Compensation.
(A) Regular Compensation. For all services
rendered under this Agreement, Employer shall
pay the Employee an initial salary of Two
Hundred Thousand Dollars & 00/100
($200,000.00 ) per year payable in equal
biweekly installments. Regular compensation
requires the Employee to work a minimum of
sixty-four (64) hours and a maximum of
eighty-eight (88) hours per pay period.
Should Employee provide additional coverage
at the request of the Employer at any Clinic
outside of the Greenville area, Employer will
compensate the Employee at an additional rate
of sixty-five dollars ($65.00) per hour.
(B) Increases 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 a part hereof. In no event shall the
Employer decrease Employee's compensation
during the term of this Agreement.
(C) Bonuses. Employer may from time to time
review Employee's compensation arrangement
with respect to the payment of a bonus for
superior performance; 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 and also for inclusion in any group-term life
insurance 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, at its
costs, shall provide for Employee such health
coverage as provided to other employees of
Doctors's Care, P. A. Family coverage will
be provided. Additionally, the immediate
family members of the Employee may receive
health care at Doctor's Care Clinics at no
cost.
(B) Group Term Life Insurance & Group Disability
Insurance. Employer, at its cost, shall
furnish such life and disability insurance
for Employee as it, from time to time, may
provide to other Employees. In lieu of
purchasing group term life insurance on
Employee, at Employee's election, Employer
will contribute a comparable premium amount
to an insurance policy designated by
Employee. Moreover, at Employee's election,
Employer will assume payment of premiums on
Employee's individual disability insurance
policy in lieu of enrolling employee in
Employer's group disability plan. Employer
may elect to provide the Employee with both
individual and group
51
disability coverage.
(C) Life Insurance Policy. Employer, at its
costs, shall provide Employee with a life
insurance policy that at the time of the
Employee's death will pay Two Hundred
Thousand Dollars ($200,000.00) to his spouse
or other designated beneficiary(s). This
provision will remain in effect throughout
the term of employment of the Employee by the
Employer.
(5) Vacation and Professional Meetings. Beginning with the
first year of employment during this Agreement,
Employee shall be entitled to four weeks of paid
vacation and up to one week of additional 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 proper operation of the practice.
Unused vacation time may not be carried over from year
to year without Employer's written consent which shall
not be unreasonably withheld.
(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, injury or incapacity, Employee shall continue
to receive all benefits and compensation and payments
as if Employee were working his normal work schedule;
provided, that these benefits, compensation and
payments shall cease one (1) year following the date
on which Employee suffered his disability, and
provided further, that the determination of disability
shall be finally determined by a physician mutually
acceptable to Employer and Employee; and provided
finally that the amount of compensation paid shall be
reduced by the amount of any disability insurance
payments actually received by the Employee, if any.
If following the illness, injury or incapacity of Employee,
the Employer declines to continue to perform under this
Agreement, Employee shall be immediately released from any
obligations imposed under this Agreement, including, without
limitation, paragraph (13) Covenants Against Competition, and
paragraph (14) Remedy For Violation.
(7) Equipment and Expenses.
(A) Facilities. Employer shall provide and pay
for suitable personal 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 hereafter 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 at One Million Dollars ($1,000,000)
may be provided through the South Carolina
Patients' Compensation Fund ("PCF").
(C) License Fees, Memberships and Dues. Employer
shall either pay or, upon proof of payment by
the Employee, reimburse up to $1,000.00 to
Employee for the cost of professional license
52
fees, and the cost of reasonable professional
membership and dues during the first and all
subsequent years of employment.
(D) Documentation. Employee agrees to submit to
Employer the documentation as may be
necessary to assist in substantiating the
deductibility of the foregoing expenses for
income tax purposes.
(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 end of 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 with which such terms are covered; provided
however, that 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. As a result of the Employee's
patient following from years of private practice, the
Employer agrees that should the Employee and the
employer terminate their employment relationship for
whatever reason(s), the Employee shall be entitled to
the patient lists, records, and charts that he entered
this agreement with. For this provision to be honored,
a list (by name and address) of the Employee's patient
panel must be provided to the Employer when the
Employee reports for his first day of work. The
entitlement to these patient records is not automatic,
but must be supported by a patient request for the
record to be transferred in accordance with regulatory
and statutory provisions governing the release of
patient information and medical records management.
Employer agrees that Employee has no adequate remedy
at law for breach of employer's duties in this
paragraph (9) and agrees to provide reasonable
cooperation in facilitating the transfer of documents
described in this paragraph.
(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; provided, that the Employer will exercise
its discretion under this paragraph (10) in a manner
consistent with its obligations under other provisions
of this Agreement.
(11) Conditions of Termination. Unless otherwise agreed in
writing by Employer and Employee, this Agreement shall
terminate on the occurrence of any of the following
events:
(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.
53
(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) Upon Employee's failure as determined by the
South Carolina Board of Medical Examiners to
satisfactorily comply with accepted standards
of medical practice and professional conduct
as specified in the South Carolina Medical
Practice Act.
(E) At the option of Employer upon thirty (30)
days 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; provided, however, that Employee
must first be provided sixty (60) days
written notice and opportunity to remedy any
alleged violation of this Agreement.
(F) Upon the Employer's failure to make payments
under, or breach of any covenants contained
in the acquisition documents executed between
Employer and Employee, titled CONTRACT OF
SALE between Summit Medical & Doctor Xxxxx X.
Xxxxx and UCI Medical Affiliates of South
Carolina, Inc.; or to make payments,or pay
compensation or provide benefits required
under any provision of this Agreement.
(G) At the election of Employee, upon a change in
ownership or effective control of the
Employer. For purposes of this paragraph,
"change in ownership or effective control"
shall be defined as specified in Section 280G
of the Internal Revenue Code of 1986 and
regulatory interpretations of that statutory
provision.
In the event of a termination of this Agreement, and
notwithstanding any other provisions of this
Agreement, Employee shall be immediately released from
any obligations imposed under this Agreement,
including, without limitation, paragraph (13)
Covenants Against Competition and paragraph (14)
Remedy for Violation.
(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 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
54
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, except as noted in paragraph
(2D).
B. Ownership. In addition to (but not in
limitation of) the restrictions of Section
13A 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.
C. Employees. In addition to (but not in
limitation of) the restrictions of Sections
13A and B, for the period of Employee's
retention by Employer, plus a period of one
year 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 Employer to
terminate such person's association or
contract of employment as the case may be,
with Employer. However, any nurse(s) and any
and all employees who were previously
employed by the Employee are not subject to
the restrictions of this provision.
(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 one year (twelve (12)
month) period immediately preceding the violation of
this covenant; provided, however, that the Employee
shall be given notice and right to cure any violations
cited by Employer.
(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
55
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. This Agreement is
executed in Greenville County, South Carolina, and the
parties agree that proper venue for any and all
proceedings relating to this Agreement shall be in the
Court of Common Pleas for Greenville County, 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 constrained as a waiver of any
subsequent breach thereof.
(21) Severability. If any provision of this Agreement, or
portion thereof, shall be declared invalid or
unforceable, 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: (Signature of X.X. XxXxxxxxx, III, M.D.)
X. X. XxXxxxxxx, III, M.D.
Its: President
EMPLOYEE: (Signature of Xxxxx X. Xxxxx, M.D.)
Xxxxx X. Xxxxx, M.D.
56
SCHEDULE OF COMPENSATION
Agreed To
Date Change Effective New Annual Salary Employer Employee
57
CURRENT BENEFITS FURNISHED TO FULL-TIME PHYSICIANS
1. Beginning with first year of employment:
A. Four weeks (160 hours) paid vacation.
B. Participation in 401-K program after 90 days of employment.
C. Membership in the South Carolina Medical Society will
be furnished.
2. First year: Up to $2,000.00 reimbursement for CME/Conference
registration, fees, lodging, and/or travel; and up to one week
of paid time off.
3. Beginning with the third year: Five weeks (200 hours) of paid
vacation.
4. Beginning with the fifth year: Six weeks (240 hours) of paid
vacation.
58
EXHIBIT G
Patient Data
Summit Medical has Approximately 4500 Patients in the following
categories:
FEE FOR SERVICE 3015 67%
MEDICARE 450 10%
COMPANION 720 16%
MAXICARE 270 6%
INDUSTRIAL 45 1%
----- -----
4500 100%
59
