Exhibit (c)
UCI MEDICAL AFFILIATES, INC.
STOCK PURCHASE AGREEMENT
November 3, 1995
THESE SECURITIES ARE SUBJECT TO RESTRICTIONS ON TRANSFERABILITY AND RESALE AND
MAY NOT BE TRANSFERRED OR RESOLD EXCEPT AS PERMITTED UNDER THE SECURITIES ACT OF
1933, AS AMENDED, AND THE APPLICABLE STATE SECURITIES LAWS, PURSUANT TO
REGISTRATION OR EXEMPTION THEREFROM. INVESTORS SHOULD BE AWARE THAT THEY WILL BE
REQUIRED TO BEAR THE FINANCIAL RISKS OF THIS INVESTMENT FOR AN INDEFINITE PERIOD
OF TIME.
The undersigned COMPANION HEALTHCARE CORPORATION, a South Carolina
corporation ("Subscriber"), intending to be legally bound, hereby subscribes for
and agrees to purchase Two Hundred Eighteen Thousand One Hundred Eighty
(218,180) shares of common stock, par value $0.05 per share (the "Shares"), of
UCI MEDICAL AFFILIATES, INC., a Delaware corporation (the "Company"), and
tenders herewith to the Company in cash or a check made payable to the order of
the Company the purchase price of Two and 75/100 ($2.75) Dollars per share for
the Shares, for the total subscription amount of Five Hundred Ninety-Nine
Thousand Nine Hundred Ninety-Five and No/100 ($599,995) Dollars.
In consideration of the matters set forth in this Stock Purchase
Agreement, Subscriber hereby represents and warrants to the Company, and hereby
covenants and agrees with the Company, as follows:
1. Subscriber has carefully read this Stock Purchase Agreement and, to the
extent Subscriber believes necessary, has discussed the representations,
warranties, covenants and agreements which Subscriber makes by signing it, and
any applicable limitations upon Subscriber's resale of the Shares, with
Subscriber's counsel and other professional advisor(s). Subscriber acknowledges
that Subscriber has not relied upon the legal counsel or accountants for the
Company regarding the transaction contemplated by this Stock Purchase Agreement,
and Subscriber has been advised to engage separate legal counsel and accountants
to represent Subscriber's individual interest and advise Subscriber regarding
the structure of, and risks associated with, such transaction.
2. Subscriber has been advised and acknowledges that the issuance of the
Shares will not be registered under the Securities Act of 1933, as amended (the
"1933 Act"), in reliance upon the exemption(s) from registration promulgated
thereunder. Subscriber also acknowledges that the issuance of the Shares will
not be registered under the securities laws of any state. Consequently,
Subscriber agrees that the Shares cannot be resold unless they are registered
under the 1933 Act and applicable state securities laws, or unless an exemption
from such registration requirements is available. Subscriber has been advised
and acknowledges that the Company is under no obligation to register the Shares
for public sale or to comply with the conditions of Rule 144 promulgated by the
Securities and Exchange Commission (the "SEC") under the 1933 Act or take any
other action necessary in order to make available any exemption for the sale of
the Shares without registration.
3. Subscriber is purchasing the Shares solely for Subscriber's own account
and not as nominee for, representative of, or otherwise on behalf of any other
person or entity other than an affiliate of the parent corporation of
Subscriber. Subscriber is purchasing the Shares with the intention of holding
the Shares for investment, with no present intention of participating, directly
or indirectly, in a subsequent public distribution of the Shares. Subscriber
shall not make any sale, transfer or other disposition of the Shares in
violation of state or federal law.
4. Prior to the execution of this Stock Purchase Agreement, Subscriber has
carefully reviewed and fully understands the periodic reports of the Company
filed with the SEC (including proxy statements, Forms 10-K, 10-Q and 8-K) under
the Securities Exchange Act of 1934 (the "Exchange Act"), and such of the books
and records of the Company and such other documents as Subscriber (and
Subscriber's attorney, accountant and/or other advisors) deemed pertinent in
order for Subscriber to make an informed investment decision. Subscriber further
acknowledges that Subscriber has had the opportunity to ask questions of and
receive answers from, or obtain additional information from, the executive
officers of the Company concerning the financial and other affairs of the
Company, and to the extent deemed necessary in light of Subscriber's personal
knowledge of the Company's affairs, Subscriber has asked such questions and
received satisfactory answers and desires to invest in the Company. Subscriber
has been advised and acknowledges that no federal or state agency has made any
finding or determinations as to the fairness or merits of an investment in the
Company, and that no such agency has made any recommendation or endorsement
whatsoever with respect to such an investment.
5. Subscriber has been advised and acknowledges that there is currently no
active public market for the Shares and that no active public market for the
Shares may develop. Subscriber is aware that Subscriber's 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 Subscriber's own evaluation of the risks associated with
this investment, Subscriber is aware and Subscriber has been advised that
Subscriber must bear the economic risks of a purchase of the Shares
indefinitely.
6. In connection with the purchase of the Shares by Subscriber, Subscriber
has not and will not pay, and has no knowledge of the payment of, any commission
or other direct or indirect remuneration to any person or entity for soliciting
or otherwise coordinating the purchase of the Shares.
7. Subscriber has been advised and agrees that there will be placed on the
certificate(s) representing the Shares, or any substitution(s) therefore, a
legend stating in substance the following (and including any restrictions or
conditions that may be required by any applicable state law), and Subscriber has
been advised and further agrees that the Company will refuse to permit the
transfer of the Shares out of Subscriber's name in the absence of compliance
with the terms of such legend:
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED, OR UNDER ANY STATE SECURITIES LAWS
AND MAY NOT BE SOLD, PLEDGED, TRANSFERRED, ASSIGNED 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 TRANSFER SUCH SHARES ONLY 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 OR THAT
SUCH REGISTRATION IS NOT REQUIRED AND THAT SUCH TRANSFER WILL NOT VIOLATE
ANY APPLICABLE STATE SECURITIES LAWS.
8. In consideration of the matters set forth in this Stock Purchase
Agreement, the Company hereby represents and warrants to Subscriber, and hereby
covenants and agrees with Subscriber, as follows:
(a) There has been no material adverse change in the financial
condition, business or prospects of the Company since May 24, 1995.
(b) The reports of the Company filed with the SEC since December 31,
1992, comply in all material respects with the requirements of the Exchange Act.
(c) The transactions contemplated by this Stock Purchase Agreement
have been duly authorized by the Company and the Shares, when paid for as
contemplated herein, will be duly authorized, fully paid and nonassessable.
(d) The Company agrees that it will use the proceeds of the sale of
the Shares to acquire, expand, improve and/or operate its primary medical care
facilities in South Carolina.
(e) The acquisition of the Shares has been approved by the board of
directors of the Company in a way that would permit the Subscriber to engage in
a business combination with the Company free of any restraints imposed by
Section 203 of the Delaware Corporation Law.
(f) Subject to the limitations set forth herein, the Company hereby
grants to the Subscriber the option to purchase from the Company as many shares
of the voting stock of the Company as may be necessary for the Subscriber to
maintain ownership of forty-seven (47%) percent of the outstanding voting stock
of the Company; provided however, for purposes hereof the number of shares of
voting stock deemed owned by Subscriber at any time shall be the sum of the
number of voting shares of the Company beneficially owned by Subscriber and any
voting shares of the Company beneficially owned by Subscriber's subsidiaries or
affiliates, including but not limited to any corporation or entity controlled by
or under common control with Subscriber. This option is irrevocable and may be
exercised by the Subscriber from time to time as provided herein. Upon any
proposed sale by the Company (including any sale pursuant to an underwritten
offering) of any voting stock of the Company (the "Proposed Sale"), the
Subscriber may exercise its option by delivering written notice to the Company
of the Subscriber's intent to exercise its option hereunder and specifying the
number of shares as to which Subscriber intends to purchase (which number cannot
exceed the number of shares of voting stock of the Company as may be necessary
to maintain the Subscriber's ownership percentage following the closing of the
Proposed Sale at the percentage amount set forth above) within forty-five (45)
days after being notified by the Company of the Proposed Sale. Once made, any
election by the Subscriber to exercise this option shall be irrevocable unless
there is a material change in the terms of the Proposed Sale. The purchase price
per share under this option shall be the average price per share to be paid by
the other purchasers in the Proposed Sale (except in the case of an underwritten
offering, the purchase price shall be the price to the public) and shall be paid
by the Subscriber not later than the date on which payment from the other
purchasers in the Proposed Sale shall be due. Notwithstanding the foregoing, at
anytime which is not during the period between the date any notice of a Proposed
Sale has been given to the Subscriber and the date of the consummation of such
Proposed Sale, the Subscriber may give written notice to the Company that it
will purchase additional shares of voting stock of the Company in exercise of
rights under this option. In such case the Subscriber shall pay for such stock a
price per share equal to the average closing bid price for the stock on the ten
(10) trading days immediately preceding such notice on which not less than one
hundred (100) shares of such class of stock were reported as being traded or, if
no such price can be set, a price agreed upon by the Company and the Subscriber
as the fair market value of such shares. The Subscriber shall purchase such
shares within forty-five (45) days after giving such notice. Shares issued as
compensation, or issued to satisfy conversion or option rights created to
provide compensation, to directors, officers, agents, or employees of the
Company, its subsidiaries or affiliates shall not be considered to be shares
issued pursuant to a Proposed Sale and shall not be considered in determining
the price to be paid by the Subscriber.
9. Each of the Subscriber and the Company hereby represents and warrants
to the other that such party has full corporate power and authority to execute,
deliver and perform this Stock Purchase Agreement and such party has obtained
the requisite corporate, governmental, and third party approvals and consents
necessary to enter into and perform this Stock Purchase Agreement.
10. Each of the Subscribers and the Company understands and agrees that:
(a) This Stock Purchase Agreement is binding upon and will
inure to the benefit of the parties hereto and their successors and permitted
assigns;
(b) This Stock Purchase Agreement may be assigned or
transferred by Subscriber only to an affiliate or the parent corporation of
Subscriber upon written notice thereof to the Company; and
(c) This Stock Purchase Agreement will be governed and
construed in accordance with the laws of the State of South Carolina.
11. The Company agrees to provide Subscriber with the following
registration rights. For purposes of this Section 11, "Shares" shall mean all
shares of the common stock, par value $0.05 per share, of the Company owned by
Subscriber.
(a) (i) The Company shall prepare and file a Registration
Statement, under the 1933 Act with respect to the Shares or any portion thereof,
with a minimum requirement of 10,000 shares per request as and when the filing
is requested in writing by Subscriber; provided, however, that the Registration
Statement shall be filed not more than 60 days after receipt by the Company of
the written request for the filing, subject to delays resulting from
circumstances not within the reasonable control of the Company.
(ii) In connection with the Registration Statement, the
Company shall (x) prepare and file with the SEC all supplemental or revised
prospectuses that may be required of the Company by the 1933 Act and the rules
and regulations of the SEC in connection with the public offering and sale of
the Shares then being registered; (y) prepare and file supplemental or revised
prospectuses as post-effective amendments to the Registration Statement to the
extent required of the Company by the SEC; and (z) furnish whatever reasonable
number of preliminary, final, supplemented, and revised prospectuses as are
necessary under the 1933 Act and the rules and regulations of the SEC.
(iii) If for any reason less than all of the Shares are
included in the Registration Statement when it becomes effective, or if Shares
included in the Registration Statement are subsequently de-registered as
required by the SEC, the Company, upon written request as set forth in
subdivision (a)(i) of this section, shall file whatever additional Registration
Statements and comply with all ancillary duties and obligations described in
subdivisions (a)(i) and (a)(ii) of this section, that may be necessary for the
public offering of such other or additional Shares, from time to time.
(iv) It is the intention of the parties that all of the
Shares at the time outstanding and held by persons who would be deemed
"underwriters" for the purposes of the 1933 Act in connection with any public
offering of the Shares shall be covered by an effective Registration Statement,
and there shall be available for delivery whatever supplemented or amended
prospectuses may be necessary to meet the requirements of Sections 10(a)(3) and
17(a) of the 1933 Act, and any SEC regulations in connection with the public
offering of any of the Shares in ordinary brokerage transactions. If any person
whose sale of any of the Shares then covered by an effective Registration
Statement is subject to the prospectus requirements of Section 5(b) of the 1933
Act and such person desires to make a public offering of the Shares in any
manner, the Company shall, upon written request, make any necessary filings
under the 1933 Act and Rule 144, as amended, as promptly as practicable.
(v) If, under the applicable rules, regulations or
policies of the SEC, it is not possible for the Company to take all steps
provided for in the preceding subdivision of this section, the Company shall
take
such steps to the extent reasonably practicable. In addition, the Company shall,
after receipt of written request pursuant to subdivision (a)(i) of this section,
use its best efforts to make, as promptly as practicable, whatever amendatory
filings under the 1933 Act (including any necessary post-effective amendments,
supplemented or amended prospectuses, but not including any new Registration
Statements unless requested with respect to not less than the number of the
Shares specified in paragraph (i) of this Section) that may be required to
permit the public offerings with a minimum of delay under then applicable
provisions of the 1933 Act and the rules, regulations and policies of the SEC.
(vi) Notwithstanding anything contained in the foregoing
subdivisions of this section, the Company shall not be required to make any
Substantial Filing under this or any similar agreements bearing even date with a
frequency that yields an interval of less than six months between the effective
dates of successive Substantial Filings. For the purposes of this paragraph, a
Substantial Filing consists of (x) any registration statement filed by the
Company, whether filed under this or any similar agreement, or otherwise, and
(y) any supplemented or amended prospectus or any post-effective amendment that
involves a greater burden on the Company than preparing, printing and filing a
one page sticker to any current prospectus.
(vii) All out of pocket expenses of every kind relating
to the preparation and filing of all Registration Statements, amendments,
supplements, prospectuses, and other documents under this subsection (a) of
section 11 shall be paid by Subscriber, including all costs and expenses
ordinarily incurred in connection with the public offering of securities,
including, without limitation, Blue Sky expenses, printing costs, underwriting
discounts, commissions or expenses, and fees and expenses of counsel and
accountants for the Company. However, the expenses payable by Subscriber shall
not include any allocation of Company overhead or other indirect costs of the
Company.
(viii) In the event the Company is in the process of
registering for public offering any shares of its common stock prior to the date
Subscriber provides the Company with a written request to register the Shares
pursuant to section 11(a)(i), such written request shall be deemed to be a
request for a "piggy-back" registration pursuant to section 11(b).
(b) If, on or before December 31, 1999, the Company elects to
file a registration statement to register for public offering any shares of its
common stock of the same class as the Shares, the Company shall provide
Subscriber with not less than forty-five (45) days prior written notice of the
proposed date of filing of such registration statement. Within fifteen (15)
business days after receiving notice of the proposed registration, Subscriber
can elect to include the Shares, or any portion thereof, in such offering,
subject to the restrictions set forth herein, in the 1993 Act, and in the rules
and regulations promulgated by the SEC.
(c) The Company will indemnify Subscriber, each of
Subscriber's officers and directors, and each person controlling Subscriber, and
each underwriter, if any, with respect to such registration effected pursuant to
Section 11(a) or (b) hereof, against all claims, losses, damages and liabilities
(or action in respect thereto) arising out of or based on any untrue statement
(or alleged untrue statement) of a material fact contained in any prospectus,
offering circular or other document (including any related registration
statement, notification or the like) incident to any such registration or based
on any omission (or alleged omission) to state therein a material fact required
to be stated therein or necessary to make the statements therein not misleading,
or any violation by the Company of any rule or regulation promulgated under the
1933 Act applicable to the Company and relating to action or inaction required
of the Company in connection with any such registration, and will reimburse
Subscriber, each of Subscriber's officers and directors, and each person
controlling Subscriber, for any legal and any other expenses reasonably incurred
in connection with investigating or defending any such claim, loss, damage,
liability or action, provided that the Company will not be liable in any such
case to the extent that any such claim, loss, damage or liability arises out of
or is based on any untrue statement or omission based upon information furnished
to the Company by Subscriber in writing.
(d) Subscriber will, if the Shares are included in the
securities as to which such registration is being effected, indemnify the
Company, each of its directors and officers, each underwriter, if any, of the
Company's securities covered by such a registration statement, and each person
who controls the Company within the meaning of the 1933 Act against all claims,
losses, damages and liabilities (or actions in respect thereof) arising out of
or based on any untrue statement (or alleged untrue statement) of a material
fact contained in any such registration statement, prospectus, offering circular
or other document, or any omission (or alleged omission) to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, to the extent that such untrue statement (or alleged
untrue statement) or omission (or alleged omission) is made in such registration
statement, prospectus, offering circular or other document in reliance upon
information furnished to the Company by Subscriber in writing, or any violation
by Subscriber of any rule or regulation promulgated under the 1933 Act
applicable to Subscriber and relating to any action or inaction required of
Subscriber in connection with any such registration, and will reimburse the
Company, such directors, officers, persons or underwriters for any legal or any
other expenses reasonably incurred in connection with investigating or defending
any such claim loss damage, liability or action.
(e) In connection with any offering involving an underwriting
of shares being issued by the Company, the Company shall not be required under
this Section 11 to include any of the Shares in such underwriting unless
Subscriber accepts the terms of the underwriting as agreed upon between the
Company and the underwriter selected by the Company, and then only in such
quantity as will not, in the written opinion of the underwriter, jeopardize the
success of the offering by the Company; provided, however, that the underwriter
may not limit the amount of the Shares included in such registration and
underwriting to less than an amount equal to 25% of the amount of all the
Company's securities included within such registration and underwriting.
(f) All expenses (excluding any underwriter or selling agent's
discounts and commissions applicable to Shares sold by Subscriber) incurred in
connection with any registration pursuant to Section 11(b) shall be borne by the
Company; provided, however, that the Company shall not be required to pay fees
and costs of legal counsel or other advisors for Subscriber.
(g) The Company agrees that, in connection with any
Registration Statement, it shall prepare and file whatever pre-effective and
post-effective amendments and whatever supplements or revised prospectuses that
the SEC may require and that it shall furnish a reasonable number of
preliminary, final, supplemental, and revised prospectuses required under the
1933 Act and the rules and regulations of the SEC.
12. This Stock Purchase Agreement may be executed in multiple
counterparts, all of which taken together shall constitute one agreement, and
any party hereto may execute this Agreement by signing any such counterpart.
IN WITNESS WHEREOF, the parties hereto have caused this Stock Purchase
Agreement to be executed by their duly authorized representatives to be
effective the date first written above.
COMPANION HEALTHCARE CORPORATION
(SEAL)
By: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Its: C.O.O.
UCI MEDICAL AFFILIATES, INC. (SEAL)
By: ▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
Its: Chief Financial Officer
