Exhibit 8.4.1
Form of Conditional Delivery Agreement
[See Attached]
69
CONDITIONAL DELIVERY AGREEMENT
This Conditional Delivery Agreement ("Agreement") is made as of this
_____ day of April, 1998, by, between and among UCI Medical Affiliates, Inc., a
Delaware corporation ("UCI"); UCI Medical Affiliates of Georgia, Inc., a South
Carolina corporation ("UCI of GA"); and MainStreet Healthcare Corporation, a
Delaware corporation ("MainStreet").
INTRODUCTION.
In connection with the closing on the date hereof of the transfer of
substantially all of the assets of MainStreet to UCI of GA (the "Closing") as
contemplated by that certain Acquisition Agreement and Plan of Reorganization
dated February 9, 1998, by and among UCI; UCI of GA; MainStreet; MainStreet
Healthcare Medical Group, P.C., a Georgia professional corporation; MainStreet
Healthcare Medical Group, PC, a Tennessee professional corporation; Prompt Care
Medical Center, Inc., a Georgia corporation; Xxxxxxx X. Xxxx; A. Xxxxx Xxxxxxx;
XXXXXX Private Equity and Mezzanine Fund, L.P., a Delaware limited partnership;
and Xxxxxx X. Xxxxxxx, Xx., as amended (the "Acquisition Agreement"), the
parties hereto desire to provide for the issuance in consideration thereof of
_______________________ (_____________________) shares of the $0.05 par value
voting common stock of UCI to MainStreet (the "Shares"), pursuant to the terms
and conditions set forth in the Acquisition Agreement and herein.
The parties hereto acknowledge and agree that the prior approval of
the shareholders of UCI (in accordance with applicable Marketplace Rules of the
National Association of Securities Dealers, Inc. and as necessary to amend the
Certificate of Incorporation of UCI) is a condition for the issuance of the
Shares which represent a portion of the consideration to be delivered to
MainStreet for the assets of MainStreet, all as set forth in the Acquisition
Agreement. As a result of the review by the Securities and Exchange Commission
of the Preliminary Proxy Statement of UCI relating to the meeting of the
shareholders of UCI at which such shareholder approval is to be solicited, such
meeting cannot be held prior to the scheduled date of Closing. As a result of
the foregoing, the parties hereto desire to enter into this Agreement whereby
upon satisfaction of the conditions set forth herein UCI shall deliver the
Shares to MainStreet, all upon the terms and conditions set forth herein.
AGREEMENT.
NOW, THEREFORE, in consideration of these premises and the mutual
covenants hereinafter set forth, and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
70
1. Issuance of Shares. Upon satisfaction of the conditions set forth
in Section 2 below, UCI shall tender to MainStreet the Shares as contemplated by
Section 7.1 of the Acquisition Agreement. At such time, UCI shall deliver a copy
of the instructions to the transfer agent of UCI's common stock instructing the
transfer agent to issue certificates evidencing the Shares to MainStreet and
will do all things necessary to cause the issuance of the Shares and the prompt
delivery of the certificates representing the Shares to MainStreet by the
transfer agent. The transfer agent shall be instructed to deliver a certificate
evidencing the HoldBack Shares to Xxxxxx Xxxxx Xxxxxx & Xxxxxxx, LLP pursuant to
Section 13.6.1 of the Acquisition Agreement. The Shares, when issued, shall be
duly authorized, validly issued, fully paid and non-assessable and not subject
to preemptive rights. The parties hereto acknowledge that the Shares shall be
issued to MainStreet pursuant to an exemption from registration under the
securities laws, such as Rule 506 of SEC Regulation D, and the Shares shall be
restricted shares subject to Rule 144 of the Securities Act of 1933. The
certificates evidencing the Shares shall bear a restrictive legend in
substantially the following form:
THE SECURITIES 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
SECURITIES 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.
2. Conditions. The obligation of UCI to issue the Shares shall be
subject, to the extent not waived by UCI, to the satisfaction of each of the
following conditions:
A. Approval of Shareholders of UCI. The shareholders of UCI
approve (i) the amendment to UCI's Certificate of Incorporation to increase the
number of authorized shares of the common stock, $0.05 par value, of UCI from
10,000,000 to 30,000,000 shares (the "Charter Amendment"); and (ii) the issuance
of the Shares to MainStreet.
B. Filing of Amendment to Charter. Upon the approval of the
Charter Amendment, UCI shall cause the filing with the Delaware Secretary of
State of the Charter Amendment, which UCI agrees shall be filed no more than
three (3) business days after the
71
approval of such Charter Amendment by the shareholders of UCI as contemplated in
Section 2(A)(i) above.
C. Bringdown of Investment Letters. MainStreet and each of the
security holders of MainStreet (including without limitation the Class A and
Class B shareholders of MainStreet) shall execute and deliver to UCI an
affirmation, in form and substance acceptable to UCI, that each of the
representations and warranties set forth in such entity or person's Investment
Letter, executed and delivered to UCI at Closing pursuant to Section 8.3.8 of
the Acquisition Agreement, is true and accurate in all material respects as of
the date of the issuance of the Shares as set forth in Section 1 above.
3. Registration Rights Agreement. Prior to the issuance of the Shares
to MainStreet, UCI, MainStreet and each of the security holders of MainStreet
(including without limitation the Class A and Class B shareholders of
MainStreet) shall execute and deliver the registration rights agreement
substantially in the form attached as Exhibit 8.4.2 to the Acquisition
Agreement.
4. Failure of Conditions. In the event that as of July 1, 1998 for
any reason any of the conditions set forth in Section 2 (the "Conditions") are
not met, MainStreet shall have the option, exercisable by written notice to UCI
on or before July 8, 1998 to either (i) require UCI to continue to use its
reasonable best efforts to complete the Conditions no later than July 31, 1998,
or (ii) unwind the transactions as herein provided (an "Unwind Event"). In the
case of an Unwind Event or if the Conditions have not been met by July 31, 1998,
the parties to the Acquisition Agreement shall immediately take all actions in
their best efforts to restore the parties to the respective positions they held
prior to the closing of the transactions contemplated in the Acquisition
Agreement. In this connection, without limiting the generality of the foregoing,
each party to the Acquisition Agreement shall (a) undertake all such actions
necessary so that, to the greatest extent reasonably practicable, all
liabilities and assets transferred from any party in the Acquisition are
transferred back to such party, (b) shall execute and deliver any and all deeds,
bills of sale, assignments, assumptions, and other instruments of conveyance or
assumption as shall be reasonably required to return such liabilities and
assets, and (c) perform such other acts as set forth in the Acquisition
Agreement concerning the unwinding of the transactions contemplated in the
Acquisition Agreement. The Transferees will use commercially reasonable efforts
to hold separate and segregate the Assets until the conditions set forth in
Section 2 above are satisfied. In the event for any reason a party (the Maker")
is unable to return to any other party (the "Holder") any assets (including any
cash) or liabilities received by or from the Holder pursuant to the Acquisition
Agreement, the Maker shall immediately execute and delivery to the Holder a
promissory note (the "Note") in favor of the Holder in an original principal
amount equal to, with respect to any party, the excess, if any, of the amount of
the fair market value of any and all assets which are not returned by such party
as set forth above over the fair market value of any and all liabilities which
are not returned by such party in each case taking into account the terms of the
Acquisition Agreement. Such Note shall bear interest at the then "Prime Rate" as
listed in the Money Rates Section of the Wall Street Journal, and all interest
and principal thereunder shall be due and payable one month after the date of
execution of such Note.
72
5. Subject to Acquisition Agreement. This Agreement is made, executed
and delivered in connection with the Acquisition Agreement, and is subject to
all the terms, provisions, and conditions thereof. To the extent of any conflict
between the terms hereof and thereof, the terms of the Acquisition Agreement
shall be controlling.
6. Miscellaneous. In the event any provision hereof is held to be
invalid or unenforceable, such invalidity or unenforceability shall not affect
the validity or enforceability of any other provision hereof. This Agreement
contains the entire agreement of the parties hereto with respect to the subject
matter hereof, and no representations, inducements, promises or agreements, oral
or otherwise, not expressly set forth herein shall be of any force or effect. No
amendment to this Agreement shall be binding upon any of the parties hereto
unless said amendment is in writing and signed by the party against whom
enforcement of said amendment is sought. No party hereto shall assign this
Agreement or any interest or obligation herein. All titles or captions of the
paragraphs set forth in this Agreement are inserted only as a matter of
convenience and for reference and in no way define, limit, extend or describe
the scope of this Agreement, or the intent of any provision hereof. All
references to Sections and Exhibits shall mean the Sections and Exhibits of this
Agreement unless otherwise specified. Time is of the essence of this Agreement.
This Agreement shall be governed by and construed in accordance with the laws of
the State of South Carolina. No provision of this Agreement shall be interpreted
against any party because such party or its legal representative drafted such
provision. All rights and remedies of a party hereunder shall be cumulative and
in addition to such rights and remedies as may be available to a party at law or
equity. This Agreement may be executed simultaneously in several counterparts,
each of which shall be deemed an original but which together shall constitute
one and the same original.
IN WITNESS WHEREOF, the parties have executed this Conditional
Delivery Agreement under seal with the corporate parties acting by and through
their duly authorized officers, effective as of the date first above written.
UCI MEDICAL AFFILIATES, INC. MAINSTREET HEALTHCARE
CORPORATION
By:_________________________________ By:______________________________
Its:_____________________________ Its:_____________________________
UCI MEDICAL AFFILIATES OF
GEORGIA, INC.
By:_________________________________
Its:_____________________________
73
