<PAGE>
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(D) OF THE SECURITIES EXCHANGE ACT OF 1934
Date of earliest event reported: October 14, 1996
------------------------------------------
UCI Medical Affiliates, Inc.
(Exact name of registrant as specified in its charter)
<TABLE>
<CAPTION>
Delaware 0-13265 59-2225346
<S> <C> <C>
(State or other jurisdiction of incorporation) (Commission File Number) (IRS Employer Identification No.)
</TABLE>
1901 Main Street, Suite 1200, Mail Code 1105 Columbia, South Carolina 29201
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (803) 252-3661
-----------------------
No Change
(Former name or former address, if changed since last report.)
This document contains a total of 55 pages and the Exhibit Index is set forth on
sequentially numbered page 4 . ------- -----
PAGE 1 of 55
<PAGE>
ITEM 2. ACQUISITION OR DISPOSITION OF ASSETS
Pursuant to the terms of an Asset Purchase Agreement dated and executed on
October 10, 1996, to be effective as of October 14, 1996 by and between William
J. Bannen, Jr., M.D., F.A.A.F.P., A.M.E., P.A. a South Carolina professional
corporation ("Seller") and William J. Bannen, Jr., M.D. ("Shareholder") and UCI
Medical Affiliates of South Carolina, Inc., a South Carolina corporation (the
"Company") and the wholly-owned subsidiary of UCI Medical Affiliates, Inc., a
Delaware corporation ("UCI"), the Company has acquired certain assets (including
patient list and goodwill) associated with the medical practice owned and
operated by Seller in Simpsonville, South Carolina for a purchase price of
$25,000, paid $4,166.67 at closing and the balance of $20,833.33 in five (5)
monthly installments. The consideration paid by the Company in connection with
this acquisition was determined by arms-length negotiations between the Company
and the Seller.
The practice operated by the Seller was one at which medical conditions not
involving an immediate threat to life were treated on an outpatient basis. The
Company will operate this new location as "Doctor's Care - Simpsonville".
All descriptions of the Asset Purchase Agreement noted herein are qualified in
their entirety by reference to such documents as Exhibits to this Current Report
on Form 8-K.
ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS
a) Financial Statements of Business Acquired
It is impracticable to provide the required financial statements
for the businesses acquired at the time this Report on Form 8-K is
filed. UCI will file the required financial statements for the
Seller under cover of Form 8 as soon as practicable, but not later
than 60 days after this Report on Form 8-K is due to be filed.
b) Pro Forma Financial Information
It is impracticable to provide the required pro forma financial
information at the time this Report on Form 8-K is filed. UCI will
file the required pro forma financial information under cover of
Form 8 as soon as practicable, but not later than 60 days after
this Report on Form 8-K is due to be filed.
c) Exhibits
Exhibit 2.1 - Asset Purchase Agreement dated and executed on
October 10, 1996, to be effective as of October 14, 1996 by and
between William J. Bannen, Jr., M.D., F.A.A.F.P., A.M.E., P.A. and
UCI Medical Affiliates of South Carolina, Inc.
PAGE 2 of 55
<PAGE>
SIGNATURES
Pursuant to the requirements of The Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
UCI Medical Affiliates, Inc.
(Registrant)
/s/ Marion F. McFarland, III, M.D. /s/ Jerry F. Wells, Jr.
Marion F. McFarland, III, M.D. Jerry F. Wells, Jr.
President, Chief Executive Officer and Vice President of Finance and
Chairman of the Board Chief Financial Officer
Date: October 18, 1996
PAGE 3 of 55
<PAGE>
UCI MEDICAL AFFILIATES, INC.
EXHIBIT INDEX
TO
FORM 8-K
<TABLE>
<CAPTION>
EXHIBIT PAGE
NUMBER DESCRIPTION NUMBER
<S> <C> <C>
2.1 Asset Purchase Agreement dated and executed October 10, 6
1996, to be effective as of October 14, 1996 by and between
William J. Bannen, Jr., M.D., F.A.A.F.P., A.M.E., P.A. and
UCI Medical Affiliates of South Carolina, Inc.
</TABLE>
PAGE 4 of 55
<PAGE>
EXHIBIT NO. 2.1
ASSET PURCHASE AGREEMENT
PAGE 5 of 55
<PAGE>
ASSET PURCHASE AGREEMENT
This Asset Purchase Agreement ("Agreement") is made as of the 10th day of
October, 1996, to be effective as of October 14, 1996, 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"); William J. Bannen, Jr., M.D.,
F.A.A.F.P., A.M.E., P.A., a South Carolina professional corporation ("Seller");
and William J. Bannen, Jr., M.D. ("Shareholder").
INTRODUCTION. Seller owns and operates a medical practice located at 304
South Main Street, Simpsonville, South Carolina 29681 ("Premises"). Shareholder
is the sole shareholder, officer, and director of Seller. 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 Seller's patient records to Doctor's
Care, (ii) enter into an Employment Agreement between Doctor's Care and
Shareholder, and (iii) transfer to UCI of SC as of 12:01 a.m. on October 14,
1996 (the "Effective Date") certain assets of the Seller, 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:
1. SALE OF ASSETS TO UCI OF SC.
1.1 Transfer of Assets. At the Closing (as defined below), 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 accounts receivable, machinery, equipment,
computer and telephone systems (including hardware and software),
inventory, furniture, furnishings, office equipment, and related tangible
personal property respecting Seller's business conducted in the Premises
(the "Business"), including (without limitation) the items described in
Exhibit A attached hereto.
1.1.2 All of the goodwill, permits, licenses, computer software
and related intangible personal property of the Business. Seller shall be
responsible for obtaining the necessary consents, if any, to assignment of
such intangible assets. The parties hereto acknowledge and agree that UCI
of SC shall not assume any equipment leases, personal property leases, real
property leases, or any other liabilities of Seller or any Shareholder,
other than that certain computer lease by and between Eaton Financial
Corporation and Shareholder dated on or about July 6, 1992 which shall be
assigned by Shareholder and assumed by UCI of SC as of the Effective Date.
Shareholder and Seller shall be responsible for obtaining the necessary
consents, if any, to assign any intangible assets, including but not
limited to such computer lease.
1.1.3 All of the inventory of the Business, wherever located.
1.1.4 All of Seller's repair and service contracts and warranties
(which are acceptable to UCI of SC in its sole discretion) used or useful
in the Business.
1.2 Method of Transfer. The transfer and sale of the Assets will be
evidenced by appropriate Bills of Sale, assignments and other instruments
executed and delivered by Seller and/or the Shareholder to UCI of SC and/or
Doctor's Care at Closing (as defined below), 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
PAGE 6 of 55
<PAGE>
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 (as defined below) to be effective as of
the Effective Date (as defined below).
2. TRANSFER OF SELLER'S PATIENT RECORDS TO DOCTOR'S CARE.
2.1 Transfer of Patient Records. At Closing (as defined below), for and in
consideration of Ten ($10.00) Dollars and no other consideration, Seller and the
Shareholder shall transfer and deliver to Doctor's Care all of the Seller's and
each Shareholder's right, title and interest in and to any medical records in
their possession that were made in treating patients and all records transferred
to Seller concerning prior treatment of any patient (the "Patient Records").
2.2 Method of Transfer. The transfer of the Patient Records will be
evidenced by an appropriate bill of sale substantially in the form attached
hereto as Exhibit B, executed and delivered by Seller and the Shareholder to
Doctor's Care at the Closing (as defined below), 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 (as defined below), to
be effective as of the Effective Date.
3. CONSIDERATION FOR ACQUISITIONS. The purchase price ("Purchase Price") for the
Assets to be acquired by UCI of SC shall be Twenty-Five Thousand and No/100
($25,000.00) Dollars with the sum of Four Thousand One Hundred Sixty-Six and
67/100 ($4,166.67) Dollars payable in cash or company check at Closing (as
defined below), and the balance of Twenty Thousand Eight Hundred Thirty-Three
and 33/100 ($20,833.33) Dollars due and payable to Seller in five (5) monthly
installments, with the first payment due on or about one month after the
Effective Date, pursuant to a promissory note substantially in the form attached
hereto as Exhibit C (the "Note").
4. CLOSING.
4.1 Closing Date. The closing of the sale and purchase of the Assets and
related transactions (the "Closing") shall take place on Thursday, October 10,
1996, commencing at 1:00 p.m. (local time), at the offices of Seller at 304 S.
Main Street, Simpsonville, South Carolina or such other time and place as may be
mutually agreed upon in writing by the parties (alternatively "Closing"), all to
be effective as of the Effective Date. 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.
4.2. Transactions at Closing. At the Closing:
4.2.1 UCI of SC shall execute and deliver to Seller the Note.
4.2.2 Seller and Shareholder shall execute and 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.
PAGE 7 of 55
<PAGE>
4.2.3 UCI of SC and Doctor's Care shall execute and deliver to
Seller and the Shareholder the documents, agreements and instruments in
form and substance required by this Agreement, as described in Section
4.4..
4.2.4 Seller and UCI of SC shall each execute and deliver to the
other a Lease for the Premises substantially in the form of Exhibit D
attached hereto (the "Lease").
4.2.5 Shareholder and Doctor's Care shall each execute and deliver
to the other the employment agreement substantially in the form of Exhibit
E attached hereto (the "Employment Agreement").
4.2.6 All employees of Seller directly and primarily associated
with the Business will cease to be employees of Seller, and Doctor's Care
and/or UCI of SC may, subject to the exercise of Doctor's Care's and/or UCI
of SC'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 Effective Date.
4.2.7 The parties hereto will take such other actions contemplated
at Closing by this Agreement.
4.3 Seller and Shareholder's Documents. At Closing, Seller and Shareholder
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 bill of sale for tangible personal property and fixtures
composing portions of the Assets substantially in the form attached hereto
as Exhibit F to UCI of SC.
4.3.2 An assignment of intangible personal property composing
portions of the Assets substantially in the form attached hereto as Exhibit
G to UCI of SC.
4.3.3 The Lease substantially in the form attached hereto as
Exhibit D to UCI of SC.
4.3.4 The Employment Agreement substantially in the form attached
hereto as Exhibit E 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 UCI of SC's
clear, marketable and insurable title to the Assets.
4.3.6 Copy of all current data, contracts and information for the
Business.
4.3.7 Certified Resolutions of the directors and shareholders of
Seller authorizing the transaction contemplated herein.
4.4 Documents of UCI, UCI of SC or Doctor's Care. At Closing, UCI, Doctor's
Care and/or UCI of SC, at their expense, shall deliver or cause to be delivered
to Seller or the Shareholder (as the case may be) the following duly executed,
lawful, and effective documents and instruments:
4.4.1 UCI of SC will execute and deliver to Seller the Note
substantially inn the form attached hereto as Exhibit C.
PAGE 8 of 55
<PAGE>
4.4.2 Doctor's Care will deliver the Employment Agreement
substantially in the form attached hereto as Exhibit E.
4.5 Conditions of Title. 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 valorem taxes
for the year of Closing (which shall be prorated as provided in this Agreement).
At Closing, UCI of SC shall hold a leasehold interest in the Premises free and
clear of all claims, security interests, liens and encumbrances except real
property taxes for the year of Closing which are not yet due and payable (which
shall be paid by Seller).
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 Effective Date.
4.6.2 Intentionally blank.
4.6.3 Confidentiality. Seller and Shareholder shall hold in
confidence all documents and information concerning the Business and the
Assets (except that Seller may, after reasonable notice to UCI of SC
disclose such documents and information, or copies or summaries thereof, to
any governmental authority reviewing the transactions contemplated hereby
or as required in Seller's reasonable judgment pursuant to federal or state
laws or court order).
4.6.4 Publicity. Upon UCI of SC's request (if any), at a date
reasonably agreed upon by UCI of SC and Seller, but no later than thirty
(30) business days after to Closing, Seller, at UCI of SC's expense, shall
mail to all those patients of the Business designated by UCI of SC, a
letter substantially on the form provided by UCI of SC, subject to Seller's
approval (which shall not be unreasonably withheld) advising of the sale
hereunder and containing a request of Seller that to the extent requested
by UCI of SC, such patient shall continue its relationships with UCI of SC
and Doctor's Care.
4.6.5 Taxes. Seller shall file such tax returns and reports and
pay such taxes as are required for periods ending with the Effective Date.
4.6.6 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.
4.6.7 Miscellaneous Required Acts. The parties hereto 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 AND SHAREHOLDER. Seller and
Shareholder hereby jointly and severally warrant, represent, and covenant as
follows:
5.1 Authority. Seller is a corporation duly organized, validly existing and
in good standing under the laws of the State of South Carolina. The Shareholder
is the sole shareholder of Seller. The Shareholder
PAGE 9 of 55
<PAGE>
is the sole director of Seller. 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 and the Shareholder enforceable in accordance with its
terms and conditions except as enforcement may be limited by applicable
bankrupt, insolvency or similar laws effecting creditors rights generally and
by principles of equity. Neither the execution nor the delivery of this
Agreement nor the consummation of the transactions contemplated hereby, nor
the compliance with any of the terms and conditions hereof, will result in the
breach by Seller or Shareholder of any of the terms, conditions, or judgment,
law or other contract, agreement or instrument to which Seller or Shareholder
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 and the Premises, the violation of which would have an adverse
effect on the Assets, the Premises or the Business. All of the Assets sold
hereunder, and the Premises leased 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 and/or Premises
for which any such person or entity could claim a lien against the Assets or the
Premises.
5.4 Consents. No consent of any third party is required in connection with
Seller's transfer and assignment of the Assets hereunder.
5.5 Litigation. There are no judicial or administrative actions or
proceedings pending, or to the best of Seller's and/or Shareholder's knowledge,
threatened that question the validity of this Agreement or any transaction
contemplated hereby or that relate to the Assets or the Premises, 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 and/or Shareholder's ability to enter into this Agreement or perform
its obligations hereunder or upon the use, enjoyment, or value of the Assets
and/or the Premises for UCI of SC and/or Doctor's Care.
5.6 Insurance Coverage. Seller maintains policies of insurance covering the
Assets and Premises in amounts and against such losses and risks as are
customary for facilities such as the Business in their present usage, as well as
general public liability "occurrence" coverage in the amount of $1,000,000 per
occurrence and $1,000,000 in the aggregate, and same will be outstanding and
duly in force through Closing. For a period of one (1) year after Closing,
Seller shall maintain a comprehensive general liability "occurrence" policy for
discontinued operations in the amount of $200,000 per occurrence, and UCI of SC
shall be listed as an additional insured under such policy.
5.7 Normal Course. Seller shall have operated the Assets in the normal and
ordinary course of business since at least March 21, 1989, 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 and/or Premises 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 and each Shareholder shall
not hinder, delay, defraud, or avoid any obligation to any past, present or
future creditor in the transactions contemplated by this Agreement. Seller is
currently solvent and will not be rendered insolvent as a result of the
transactions contemplated hereby. Seller has not initiated, nor does it intend
to initiate with respect to itself as debtor, has had initiated or expects to
have initiated against it as debtor, any proceeding under federal or any state's
bankruptcy, insolvency or similar laws.
PAGE 10 of 55
<PAGE>
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 and/or Premises incurring prior
to the Effective Date within 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 prior to the Effective Date and which affect the
Assets and/or Premises.
5.11 Workers' Compensation. There are no worker compensation or similar
claims or actions pending or threatened, and Seller and/or each Shareholder does
not know of facts which would make such claims timely, by past or present
employees of Seller.
5.12 Status of Assets. The Assets sold hereunder constitute all of the
assets of the Business and include all property, rights, and intangibles
necessary for UCI of SC and/or Doctor's Care to operate after Closing a business
similar to the Business as presently conducted. All material inventory systems,
machinery, equipment, and other tangible property which are portions of the
Assets are generally sound, in good repair, may be safely operated within all
applicable standards or regulations in their present conditions, and are in
merchantable condition. All material contracts, commitments, and similar rights
which are portions of the Assets are valid, binding, enforceable, and without
known default in violation of law. The information related to accounts
receivable provided to UCI of SC is materially accurate and reflect valid,
binding, and enforceable rights of the Business which shall be lawfully
transferred to UCI of SC hereunder.
5.13 No Adverse Conditions. Except as previously disclosed in writing to
UCI of SC, there are no adverse conditions or circumstances that may interfere
with the use and enjoyment of, or opportunity to resell or encumber, any of the
Assets, or might otherwise impede UCI of SC's ability to operate a business
similar to the Business utilizing the Assets and the Premises.
5.14 Brokerage. Neither Seller nor Shareholder has dealt with any 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.
5.15 Zoning. To the best of Seller's and Shareholder's knowledge, the
Premises is currently zoned for commercial operations and are in compliance with
applicable zoning laws and ordinances; and Seller and Shareholder do not know
that the status of such zoning is in question or subject to change by the
appropriate governmental authorities.
5.16 Environmental. To the best of Seller's and Shareholder's knowledge,
the Premises is not now used and have never been used, as a gasoline station or
other site for the storage of petroleum products, or as a garbage or refuse dump
site, a landfill, a waste disposal facility for the storage, processing,
treatment or temporary or permanent disposal of regulated waste materials,
including without limitation solid, industrial, toxic, hazardous, radioactive,
nuclear or putrescible waste or sewage, and, to the best of Seller's and
Shareholder's knowledge, is in substantial compliance with applicable
environmental laws.
PAGE 11 of 55
<PAGE>
5.17 Disclosures. To the best of Seller's and Shareholder's knowledge, all
information and data furnished by Seller and/or the Shareholder to UCI, UCI of
SC or Doctor's Care with respect to the Assets, the Premises, and the Business
is materially true, correct, and complete, and not materially misleading.
5.18 Representations and Warranties at Closing. Except as expressly
otherwise permitted in this Agreement, the representations and warranties of
Seller and/or Shareholder set forth in this Agreement shall be true as of the
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 jointly and severally 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. UCI, Doctor's Care and UCI of SC each have taken all
corporate action necessary to approve and authorized the execution of this
Agreement, and to consummate the transactions contemplated hereby. Each of their
respective representatives signing this Agreement has full power and authority
to execute this Agreement in the indicated capacity and to consummate the
transactions contemplated hereby. When executed and delivered, this Agreement
shall constitute valid and binding obligations of UCI, Doctor's Care and UCI of
SC, enforceable in accordance with its terms and conditions except as
enforcement may be limited by applicable bankrupt, insolvency or similar laws
effecting creditors rights generally and by principles of equity. Neither the
execution nor the delivery of this Agreement nor the consummation of the
transactions contemplated hereby, nor compliance with all of the terms and
conditions hereof, will result in the breach by UCI, Doctor's Care or UCI of SC
of any of the terms, conditions or provisions of any of their respective of
trust, order, judgment, law, or other contract, agreement or instrument to which
either of them is a party, or by which either is bound, or constitute a default
of such indenture, mortgage, deed of trust, order, judgment, law, or other
contract, agreement or instrument.
6.3 Brokerage. Neither UCI, Doctor's Care, nor UCI of SC has dealt with any
broker in connection with this transaction, and no brokerage commission nor
claim therefor shall accrue or become payable to any person or entity respecting
this transaction.
6.4 Consents. No consent of any third party is required in connection with
the purchase and acceptance of the Assets from Seller hereunder.
6.5 Litigation. There are no judicial or administrative actions or
proceedings pending, or to the best knowledge of UCI, Doctor's Care or UCI of
SC, threatened that question the validity of this Agreement or any transaction
contemplated hereby, which if adversely determined would have a material adverse
effect upon their ability to enter into this Agreement or perform their
respective obligations hereunder.
6.6 Creditors, Solvency and Bankruptcy. UCI, Doctor's Care or UCI of SC
shall not hinder, delay, defraud or avoid any obligations to any past, present
or future creditor of UCI, Doctor's Care or UCI of SC respectively in the
transactions contemplated by this Agreement. The above-mentioned parties are
currently solvent and will not be rendered insolvent as a result of the
transactions contemplated hereby.
PAGE 12 of 55
<PAGE>
UCI, Doctor's Care or UCI of SC does not intend to initiate with respect to
themselves as debtors, nor do they expect to have initiated against themselves
as debtors, any proceeding under federal or any state's bankruptcy, insolvency
or similar laws.
6.7 Representations and Warranties at Closing. Except as expressly
otherwise permitted in this Agreement, the representations and warranties of
UCI, Doctor's Care and UCI of SC set forth in this Agreement shall be true as of
the Effective Date as though such representations and warranties were made on
such date, unless they reference a specific earlier date whereupon, as of
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 and Shareholder 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 and
Shareholder is obligated to make under Section 4 shall have been made.
7.2 Conditions of Seller and Shareholder. The obligations of Seller and the
Shareholder hereunder shall be subject, to the extent not waived, to the
satisfaction of each of the following conditions at the Closing:
7.2.1 Representation and Warranties. The representations and
warranties of UCI, UCI of SC, and Doctor's Care 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.
7.2.2 Deliveries. The release of documents which UCI, UCI of SC,
and Doctor's Care is obligated to make under Section 4 shall have been
made.
8. COST AND EXPENSES .
8.1 Transactional Cost. The parties hereto shall be responsible for their
respective attorney's fees, accountants' fees, experts' fees, and other expenses
incurred by them in connection with the negotiations and Closing of this
transaction; provided however, in the event litigation is commenced to enforce
any rights under this Agreement or to pursue any other remedy available to any
party, all legal expense or other direct costs of litigation of the prevailing
party shall be paid by the other party.
8.2 Proration of Taxes and Charges. All personal property taxes, public
utility charges and like charges (which are not terminated and paid as of
Closing by Seller), if any, relating to the personal (tangible and intangible)
property comprising the Assets shall be prorated as of the Effective Date, in
accordance with regular accounting procedure. Settlement at Closing will be made
on proration of estimates of such taxes and charges. If, as the result of such
proration at Closing, a net balance is owed by Seller to UCI of SC, or visa
versa, the amount thereof shall be paid to such party at or within thirty (30)
days after receipt of the next succeeding payment notice.
8.3 Sales Taxes. Seller shall be responsible for, and shall pay, all sales
taxes, if any, applicable to the sale of the Assets as called for herein.
PAGE 13 of 55
<PAGE>
9. INDEMNITY RIGHTS.
9.1 General Indemnity. Seller and Shareholder shall jointly and severally
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 of SC as a result of
any breach by Seller and/or Shareholder of any covenant, warranty
representation, or agreement, made by Seller and/or any Shareholder 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 Special Indemnities. Seller and Shareholder shall jointly and severally
indemnify and hold UCI, UCI of SC and Doctor's Care and their 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 UCI, Doctor's Care, or UCI of SC as a result of:
9.2.1 Award or Settlement. Any lawsuit or similar claim against
Seller and/or Shareholder arising from events or conditions prior to the
Effective Date.
9.2.2 Title to Assets. Any challenge to: (a) Seller's title to the
Assets, or (b) the transfer of such title and interest to the Assets to UCI
of SC or Doctor's Care pursuant to the Agreement.
9.2.3 Accounts Payable. Any accounts payable, taxes, assessments,
or charges of Seller and/or Shareholder.
9.2.4 Environmental. Any existing environmental contamination or
the remediation thereof at the Premises.
9.3 Set Off and Recoupment. In addition to any other available remedies,
UCI of SC, UCI, and Doctor's Care shall have the right of set off and recoupment
against amounts coming due to Seller or Shareholder under this Agreement,
Lease, Employment Agreement, Note, or any other instruments ancillary hereto in
the event Seller and/or Shareholder breaches this Agreement or any document
related thereto or any right of indemnification arises in favor of UCI, UCI of
SC, or Doctor's Care under this Agreement. Seller and the Shareholder retain
the right to lawfully contest any such set off or recoupment in an action to
collect any amounts due Seller and/or the Shareholder under this Agreement,
Lease, Employment Agreement, Note, or such other ancillary instruments. The
inclusion of this special set off or recoupment provision shall not effect the
availability, if any, of rights of set off or recoupment arising at law or in
equity.
10. EXISTING LIABILITIES. Except as set forth in Section 1.1.2 hereof, 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 UCI of SC hereunder, if any.
All property taxes assessed against the Assets sold, and Premises leased
hereunder, hereby shall be prorated as of the Effective Date, and Seller shall
promptly pay when due, or reimburse UCI of SC for, all such taxes which remain
the Seller's responsibility.
11. RISK OF LOSS. In the event the Assets and/or Premises 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 and/or Premises or
any substantial part thereof, Seller shall promptly notify UCI of SC that such
damage, destruction, or
PAGE 14 of 55
<PAGE>
action has occurred and the estimated extent thereof. In case the amount of
such damage, destruction, condemnation or eminent domain is in excess of 10%
of the Purchase Price, including but not limited to the value of the Shares
more fully described in Section 3.1, of all of the Assets immediately before
such damage or destruction, then UCI of SC must within five (5) days of
receipt of such notice either:
11.1 Termination. Terminate this Agreement by giving Seller written notice
of such termination and thereupon all parties shall be released of all further
liability to the others; or
11.2 Adjustment. Alternatively, and subject to the fulfillment of the
conditions set forth herein, require the consummation of the transactions
provided for in this Agreement and, in such case (or in case of any damage by
fire or other casualty, or condemnation or eminent domain action not entitling
UCI of SC to terminate this Agreement), all proceeds of insurance covering the
Assets and all of the claims arising as a result of such damage or destruction
to such Assets or all proceeds of such condemnation or eminent domain action for
such Assets shall become the property of UCI of SC. In the event UCI of SC
elects to require the consummation of the transactions contemplated herein,
Seller shall not compromise or settle any such claim or action at any time
without the written consent of UCI of SC which shall not be unreasonably
withheld. Seller shall cooperate with the collection of such amounts. Further,
in such event, the representations and warranties of Seller and the Shareholder,
as set forth in Section 5 shall be modified equitably to account for such claim
or action.
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:
UCI of SC: UCI Medical Affiliates of South Carolina, Inc.
1901 Main Street, Suite 1200
Columbia, SC 29201
Attn.: Stephen S. Seeling, Esq.
PAGE 15 of 55
<PAGE>
UCI: UCI Medical Affiliates, Inc.
1901 Main Street, Suite 1200
Columbia, SC 29201
Attn.: Stephen S. Seeling, Esq.
Doctor's Care: Doctor's Care, P.A.
1901 Main Street, Suite 1200
Columbia, SC 29201
Attn.: M.F. McFarland, III, MD
Seller: William J. Bannen, Jr., M.D., F.A.A.F.P., A.M.E, P.A.
3106 Bethel Road #1
Simpsonville, SC 29681
Attn: William J. Bannen, Jr., M.D.
Shareholder: William J. Bannen, Jr., M.D.
3106 Bethel Road #1
Simpsonville, SC 29681
A party hereto may change its respective address by notice in writing given
to the other parties to this Agreement. Any notice, request, approval, consent,
demand or other communication shall be effective upon the first to occur of the
following; (i) when delivered to the party to whom such notice, request,
approval, consent, demand or the communication is being given, or (ii) five (5)
business days after being duly deposited in the US mail, certified, return
receipt requested.
12.6 Severability of Provisions. In case any one or more of the provisions
contained in this Agreement should be invalid, illegal or unenforceable in any
respect, the validity, legality and enforceability of the remaining provisions
contained herein shall not in any way be affected or impaired thereby.
12.7 Successors and Assigns. This Agreement shall be binding upon the
parties, and their respective successors, heirs, and assigns, and shall inure to
the benefit of the parties and their respective successors, heirs, 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 exclusive 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
PAGE 16 of 55
<PAGE>
hereunder, and, if necessary, will assist the requesting party in the
collection or reduction to possession of such property. In addition, each
party agrees to provide reasonable access to records respecting the Business
as are requested by the other party(ies) for proper purpose with good cause
shown (subject to appropriate confidentiality agreements to be negotiated as
such time) and agree to reasonably cooperate in resolving any matters
resulting from the transactions contemplated hereby.
12.13 Assignment. This Agreement is not assignable by any party without the
prior written consent of the other parties hereto.
[Signature Page Attached]
PAGE 17 of 55
<PAGE>
IN WITNESS WHEREOF, the parties have executed this Asset Purchase Agreement
under seal, with the corporate parties acting by and through their duly
authorized officers, this 10th day of October, 1996, to be effective as of
October 14, 1996.
UCI: UCI OF SC:
UCI MEDICAL AFFILIATES, INC. UCI MEDICAL AFFILIATES OF
SOUTH CAROLINA, INC.
By: /s/ Stephen S. Seeling By: /s/ Stephen S. Seeling
Its: LEFT BLANK Its: Chief Operating Officer and Counsel
DOCTOR'S CARE: SELLER:
DOCTOR'S CARE, P.A. WILLIAM J. BANNEN, JR., M.D.,
F.A.A.F.P., A.M.E, P.A.
By: /s/ Stephen S. Seeling By: /s/ William J. Bannen, Jr., M.D., P.A.
Its: Secretary Its: President
SHAREHOLDER:
/s/ William J. Bannen, Jr., M.D., P.A.
WILLIAM J. BANNEN, JR., M.D.
PAGE 18 of 55
<PAGE>
Exhibit A
List of Assets
MEDICAL SUPPLY CLOSET
Rib splints- universal x 4
Clavical straps
Arm slings x 7
Ankle boot/braces
Finger splints - 2 sizes
Kling
4 x 4 sponges
2 x 2 sponges
Wrist splints assort x 7
Forearm/wrist splints assort x 8
Wrist splints elastic x assort x 1
Roll gauze 2" - 3" - 4"
Stretch net 5 box
Sterile cotton swabs
Unsterile cotton swabs
Large tip cotton swabs unsterile
Band-Aids - assort sizes
Telfa - small and large
Micropore tape 1/2" and 1"
Porous tape 1/2", 1", 2", 3"
Tongue blades
Knife blades #10, #11, #15, #313
Surgical masks
Plastic aprons
Plastic eye shields
Linens: cloth office towels, sheets, pillow cases supplied by National Linen
Disposable thermometer covers
Syringes and needles 21 x 1-1/2 and 25 x 5/8
Syringes 20cc luer-lock tip
Disposable drapes
Eye patches 2 box
Alcohol - isopropyl x 6 bottles
Sutures - 5-0 plain; 3-0 ethanol; 3-0 chromic; 3-0 silk
Casting materials: Delta Lite Fiberglass 3" - 4"; plaster casting 4"; tubular
stockinet 2" and 4"; Suf-rol cast padding 3"; mole skin; and gelfoam power and
sponges
Elastic bandages (ace) 2", 3", 4"
Xeroform petrolatum gauge
Staple removers x 5
Silver Nitrate applicators
Betadine ointment 1 lb jars x 2
Germicidal spray 7 cans
K-y jelly
Table paper
Distilled water
Betadine solution - 2 gallon
Betadine scrub - 2 gallon
Green soap - gallon
Instrument soak - 1 gallon
PAGE 19 of 55
<PAGE>
Disposable sigmoid scopes
Rechargeable otoscope batteries 72100 and 72200
X-RAY DEPARTMENT:
Paper jacket/folders
Lead shield apron
Lead blockers
R/L marker
Metal file boxer x 2
Assort - labels, stamp, 3 x 5 file cards
Film hanger - small, medium, large
Address-a-graft stamper
Chair
View box
Timer
Cassettes 2 large - 1 small - 1 medium
Film
Chest board mount for film
X-ray table
X-ray machine
Lead door
One stool on casters
Step stool x 2
Safe light
Manual developing tank
Thermometer
Lead gloves
Calipers
LOBBY CONTENTS:
13 metal chairs with padded seats and backs
1 torchie lamp
1 decorative straw wreath large
1 picture
Scales (balance-upright)
LAB CONTENTS:
Microscope - early 1900's will not change from low to high without difficulty
Hemoglobin meter
Medisense glucose machine
Titmus vision tester
Baby scales
Stool x 1 on casters
Chair x 1
Built-in table x 1
BP cuff and stethoscope
EKG machine
2 metal carts - 2 shelves
Chair
Wooden table for EKG's
Stainless steel trash cans with pedal
Centrifuge Van Guard V6000
PAGE 20 of 55
<PAGE>
Usual tubes, vacutainer needles, specimen
Cups, jars, testing kits, etc. as used in labs
1 aluminum cabinet - 2 tiers with doors
Wooden work bench/table
FILE ROOM:
Step stool
File folder cabinets - 4
Telephones - 1
Answering machine - 1
Air phones (shared with both Doctor's offices)
Intercom and stereo (shared with both Doctor's offices)
Speaker - 1 (shared with both Doctor's offices)
Typewriter - 1
Typewriter table
Stool
Fireproof safe - contains backup tapes
Trash can
File holders
Computer modem - 1
Computer monitor - 1
OFFICE SUPPLIES:
Folders
Forms
Staples
Staple gun
Tape
Ink pads
Rx pads
Bulletin boards x 2
FRONT OFFICE/RECEPTION WINDOW:
Adding machines - 2
Copy machine - 1
Fax machine - 1
Credit card machine
Stamps and stamp pads
Pen holders
Computer monitor
Computer printers - 2
File holders
Magazine racks
Secretary chairs - 2
Trash can
Rolling mat
Clock
Pencil sharpener
Regular phone
Intercom phone
PAGE 21 of 55
<PAGE>
COPY ROOM:
Paper cutter
Toner, ribbons, copy paper, superbills, HCFAS forms
Refrigerators - 2
Microwave
File cabinets - 4 drawer
Coffeemaker
Aluminum table
Storage cabinet with one drawer/one door
WILLIAM J. BANNEN, JR., M.D.'S OFFICE:
1 Desk
1 Chair with arms
1 2-drawer file cabinet
1 straight chair
Numerous pictures, diplomas, medical certificates
1 telephone
1 intercom phone
1 waste basket
Heater and air clean both loaner from patients
Several models medical and charts
Book ends - gift from patient
Bookcase and cabinets
Cabinet for tapes
In-out tray
1 tape
1 lamp (desk)
1 calendar
1 microscope from late 1880's
FOUR RX ROOMS:
4 wheeled stools
3 lamps
4 Rx tables
4 chairs
1 surgical tray holder
4 waste baskets
1 old pressure suction machine
3 regular otoscope
1 Carteret machine
1 homemade table
4 thermometers
4 alcohol dispensers
7 sharps containers
1 head mirror
1 earcurrette
1 golf stick eye
4 table cabinets
1 waste for hazard material
1 timeclock
Page 22 of 55
<PAGE>
LINDA'S OFFICE:
1 adding machine
2 wall lamps
1 in-out tray
1 4-drawer file cabinet
1 moveable desk
1 built-in desk with 2 drawers and cabinet
1 small file cabinet
1 built-in cupboard with shelves
miscellaneous literature
1 tape dispenser
1 stapler
1 intercom phone
1 safe bolted to floor
1 waste basket
injectible meds and syringes
1-1/2 boxes of strep kits
1 hemoglobin meter
1 glucose tubes
COMMON HALL:
1 sterilizer
1 eye tray
1 pressure syringe
1 ear wash equipment
1 suture set
1 sterilizer pan
1 crash tray
1 ambu bag
6 IV bags with saline
cleaning equipment
1 fire extinguisher
1 wheelchair
1 towel dispenser
1 phone
1 interphone
1 waste basket
1 burglar alarm
Page 23 of 55
<PAGE>
Exhibit B
BILL OF SALE
(Medical Records)
KNOW ALL MEN BY THESE PRESENTS, that WILLIAM J. BANNEN, M.D.,
F.A.A.F.P., A.M.E., P.A., a South Carolina professional corporation with offices
at 304 South Main Street, Simpsonville, South Carolina 29681 (the "Grantor"),
for and in consideration of the sum of Ten Dollars ($10.00), and other good and
valuable consideration to it in hand, paid at or before the ensealing and
delivery of these presents, by DOCTOR'S CARE, P.A., a South Carolina
professional association ("Grantee"), the receipt, sufficiency and adequacy of
which is hereby acknowledged and subject to the terms hereof, has bargained and
sold and by these presents does sell, assign, transfer, remise, release and
quitclaim unto the said Grantee, its successors and assigns, all of the
Grantor's right, title and interest in and to the following goods and chattels:
All patient medical records and files owned by Grantor with
respect to Grantor's medical practice located at 304 South
Main Street, Simpsonville, South Carolina 29681.
TO HAVE AND TO HOLD the same unto said Grantee, its successors and
assigns forever.
IN WITNESS WHEREOF, this Bill of Sale has been executed by Grantor on
October 10, 1996, to be effective as of 12:01 a.m. on the 14th day of October,
1996.
WITNESSES: WILLIAM J. BANNEN, M.D., F.A.A.F.P., A.M.E., P.A (SEAL)
/s/ Peter A. Leventis By: /s/ William J. Bannen, M.D., P.A.
Its: President
/s/ Marian Owens
Page 24 of 55
<PAGE>
Exhibit C
PROMISSORY NOTE
$20,833.33 Columbia, S.C.
Subject to Set Off October 14, 1996
FOR VALUE RECEIVED, UCI Medical Affiliates of South Carolina, Inc., a
South Carolina corporation (the "Borrower"), hereby promises to pay, in lawful
money of the United States of America, to the order of William J. Bannen, Jr.,
M.D., F.A.A.F.P., A.M.E, P.A., a South Carolina professional association (the
"Lender"), the principal sum of Twenty Thousand Eight Hundred Thirty-Three and
33/100 ($20,833.33) Dollars, subject to set off as provided hereunder.
Interest shall accrue from the date hereof on the principal balance
outstanding hereunder from time to time until paid in full at the fixed simple
rate per annum equal to nine (9.0%) percent calculated based upon a 360-day year
and the actual number of days elapsed. Equal payments of principal and interest
in the amount of Four Thousand Two Hundred Sixty and 88/100 ($4,260.88) Dollars
shall be due and payable commencing on November 14, 1996, and continuing
thereafter on the fourteenth (14th) day of each month for the succeeding four
(4) consecutive months. Payments hereunder shall be made to the Lender at 3106
Bethel Road #1, Simpsonville, South Carolina 29681, or at such other place as
the Lender may designate from time to time in writing.
Anything contained in this Note to the contrary notwithstanding, Buyer
shall have the right of set off and recoupment against amounts coming due
hereunder in the event that Lender or William J. Bannen, Jr., M.D. ("Bannen")
breaches that certain Asset Purchase Agreement dated effective as of October 14,
1996, by and among Borrower, Lender, UCI Medical Affiliates, Inc., and Bannen or
any document executed in connection therewith including but not limited to the
Employment Agreement (collectively the "Agreement"). In the event Borrower
elects to exercise the right of set off and recoupment set forth herein, upon
notice to the Lender the principal amount hereof shall be deemed reduced by the
amount of any set off or recoupment to which the Borrower is entitled, and all
interest and payments accruing thereafter shall be calculated based upon such
reduced principal amount. The Lender's right to lawfully contest such set off or
recoupment in any action to collect this Note shall not be impaired by
Borrower's exercise of such set off or recoupment rights. The inclusion of this
special set off or recoupment provision shall not affect the availability, if
any, of rights of set off or recoupment arising at law or in equity.
The occurrence of the following shall constitute an "Event of Default"
under the Note: Borrower, after the expiration of the applicable grace period
hereinafter set forth, fails to pay when due any principal or interest payment
hereunder (except for any amount then subject to an unresolved but duly asserted
set off or recoupment dispute). Upon the occurrence of an Event of Default as
hereinabove defined, then at any time thereafter the Lender may declare the
entire remaining principal balance due hereunder, together with all accrued
interest thereon, immediately due and payable. The applicable grace period
hereunder shall be fifteen (15) days and shall begin to run upon receipt by
Borrower of written notice from Lender of a potential default hereunder.
The invalidity of any provision of this Note shall not affect the
validity of any other provision hereof. The acceptance after maturity of any
payment with respect to this Note shall not constitute a waiver of the right of
Lender to demand the payment in full of any unpaid balance. No delay or failure
on the part of the Lender in the exercise of any right or remedy shall operate
as a waiver thereof, and no single exercise of any right or remedy shall
preclude Lender from the exercise of any other or further rights or remedies.
This Note shall be governed by and construed in accordance with the
laws of the State of South Carolina. Jurisdiction and venue for the enforcement
of this Note shall be exclusively in the courts for the State of South Carolina.
Paeg 25 of 55
<PAGE>
Borrower expressly waives demand, presentment, protest and notice of
non-payment or dishonor and all other notices or demands whatsoever (except for
notices expressly set forth herein), and such parties agree to remain bound
hereby until all amounts due hereunder are paid in full, notwithstanding any
extension of time for payment which may be granted, even though the period of
extension be indefinite.
EXECUTED this 10th day of October, 1996, to be effective as of the 14th
day of October, 1996.
UCI MEDICAL AFFILIATES OF
SOUTH CAROLINA, INC. (SEAL)
By: /s/ Stephen S. Seeling
Its: Chief Operating Officer and Counsel
Notice Address for Borrower:
1901 Main Street, Suite 1200
Columbia, South Carolina 29201
Attn: Stephen Seeling, Esquire
Page 26 of 55
<PAGE>
Exhibit D
STATE OF SOUTH CAROLINA )
) LEASE AGREEMENT
COUNTY OF GREENVILLE )
THIS LEASE AGREEMENT (the "Lease") is made as of October 10, 1996 to be
effective as of the 14th day of October, 1996, by and between WILLIAM J. BANNEN,
JR., M.D., F.A.A.F.P., A.M.E., P.A., a South Carolina professional corporation
("Bannen P.A."); JAMES F. RICHARDSON, M.D., P.A., a South Carolina professional
corporation ("Richardson P.A."); and UCI MEDICAL AFFILIATES OF SOUTH CAROLINA,
INC., a South Carolina corporation (the "Tenant"). Bannen P.A. and Richardson
P.A. are hereafter collectively referred to as the "Landlord".
This Lease is executed and delivered in connection with that certain
Asset Purchase Agreement by and between among others Bannen P.A., Tenant, UCI
Medical Affiliates, Inc., Doctor's Care, P.A., and William J. Bannen, Jr., M.D.
("Bannen") dated effective as of October 14, 1996 (the "Purchase Agreement")
related to the purchase of certain assets of Landlord by Tenant. In connection
with the Purchase Agreement, Tenant desires to lease from Landlord a portion of
Landlord's facility located at 304 South Main Street, Simpsonville, South
Carolina 29681, upon the terms and conditions set forth herein.
In consideration of these premises and the mutual promises below, and
for other good and valuable consideration, the receipt and legal sufficiency of
which is hereby acknowledged by the parties hereto, Landlord and Tenant agree as
follows:
1. Leased Premises. Landlord, upon the terms, covenants, and conditions
hereinafter contained, hereby leases, demises, and lets, to Tenant, and
Tenant hereby leases from Landlord, that certain medical office space
hereinafter described (the "Premises") located in a medical office building
at 304 South Main Street, Simpsonville, South Carolina 29681 (the
"Building"), situate on certain land (the "Land" and more particularly
described in Schedule 1 attached hereto) owned by Landlord in Greenville
County, South Carolina. The Premises consists of approximately three
thousand five hundred (3,500) rentable square feet of the approximately
seven thousand five hundred (7,500) square foot Building, all of said space
being leased hereunder being shown on Schedule 2 attached hereto. The
Premises includes 9 patient exam rooms, 3 restrooms, 1 X-ray room, 3
offices, 1 conference room, 1 area for vital signs, 1 receptionist/business
office, 1 lab area, 1 record storage room, and 2 closets. The Premises
shall also include an undivided interest in the large patient waiting
room/reception area, handicap restroom, and adjacent parking areas to the
Building, the use and occupancy of which shall be equally shared with the
other tenant of the Building (the "Common Areas"). Notwithstanding the
foregoing, it is the intent of the parties hereto that the Premises shall
include all the medical office space utilized as of the date hereof by
Bannen P.A. for Bannen, P.A.'s medical practice sold to Tenant pursuant to
the Purchase Agreement.
2. Initial Term. The initial term of this Lease shall commence on October 14,
1996, and terminate on October 31, 1998 (the "Initial Term").
3. Renewal Options. So long as Tenant is not in default under this Lease,
Tenant shall have three (3) consecutive options each to extend the term of
this Lease for an additional one (1) year period (collectively the "Renewal
Terms"). Tenant may exercise any such renewal option by giving written
notice to Landlord at least five (5) days prior to the expiration of the
then current term of the Lease.
4. Rent. Subject to Section 21 herein, during the Initial Term the Tenant
shall pay to the Landlord a monthly rental of One Thousand and No/100
($1,000.00) Dollars per month payable on the first (1st) day of each month,
payable in advance during the Initial Term of this Lease in lawful money of
the United States, addressed to Landlord at Landlord's address set forth in
Section 41 herein; provided however, the rental hereunder shall be
prorated in the amount of Five Hundred Eighty and 65/100
Page 27 of 55
<PAGE>
($580.65) Dollars for the number of days remaining in the month of October
1996 at the commencement of this Lease. Subject to Section 21 herein,
during each Renewal Term the Tenant shall pay to the Landlord a monthly
rental of One Thousand Five Hundred and No/100 ($1,500.00) Dollars per
month payable on the first (1st) day of each month, payable in advance
during each Renewal Term of this Lease in lawful money of the United
States, addressed to Landlord at Landlord's address set forth in Section
41 herein.
5. Real Estate Taxes. All taxes and assessments of every kind or nature which
are now or may hereafter be imposed or assessed upon the Premises being
leased hereunder by federal, state, or local government authority shall be
paid by Landlord.
6. Utilities. Tenant shall pay all charges for air conditioning, heat, water,
sewer, garbage collection, security, gas, electricity, light, telephone, or
any other communication or utility service used in or rendered or supplied
to the Premises through the Initial Term and any Renewal Term of this
Lease. Notwithstanding the foregoing, in the event any such utility used in
or rendered or supplied to the Premises are not separately metered or not
otherwise readily determinable which portion of such utility is supplied to
the Premises as opposed to the entire Building, Tenant and Landlord shall
equally share all charges related to such utility. Notwithstanding the
foregoing, the expense of all utilities supplied to the Common Areas shall
be equally borne by Landlord and Tenant. All such items shall be prorated
for periods outstanding at the commencement or the termination of this
Lease.
7. Insurance. Landlord shall pay all premiums for the insurance coverage on
the Premises including but not limited to fire and hazard insurance on the
entire Building containing the Premises for not less than the full
replacement cost thereof, and Tenant shall be listed as an additional
insured on such policy. Tenant shall at all times maintain the following
insurance coverage respecting the business operations of Tenant at the
Premises: public liability insurance for personal injury and property
damage; workers' compensation insurance required by South Carolina law;
hazard insurance on all contents and property of Tenant at the Premises and
all property of other persons temporarily stored at the Premises; and such
other insurance coverages required by this Lease or as are customarily
carried on businesses such as that to be conducted by Tenant at the
Premises.
8. Condition of Premises. Subject to Sections 9 and 10 hereof, Tenant
acknowledges that it has inspected the Premises, that this Lease is for
space previously occupied. Except as set forth in this Section and Sections
9 and 10 hereof, Landlord shall not be required to make any repairs or
improvements to the Premises being leased hereunder except repairs, if any,
to the roof and walls of the Premises to the extent necessary for repair of
leaks and/or structural integrity and safety. Subject to this Section and
Sections 9 and 10 hereof, all other repairs to the Premises (excluding
repairs to the Common Area), to bring the Premises to the condition of the
Premises at the commencement of this Lease, shall be the responsibility of
Tenant. Subject to this Section and Sections 9 and 10 hereof, in the event
repairs are made to the Common Area, the costs of such repairs shall be
equally borne by Landlord and Tenant; provided however, no repair to the
Common Area shall be authorized without the Landlord and Tenant's mutual
consent with shall not be unreasonably withheld. Such repairs and
replacements shall be made promptly, as and when necessary.
Notwithstanding anything contained herein to the contrary, upon the destruction
of the Premises by fire or other cause, or such material injury thereto as to
render said Premises or portion thereof untenantable for sixty (60) days, shall
at the option of Tenant, exercised by notice to Landlord, within one hundred
twenty (120) days after the date of such damage, destruction or unavailability,
produce and work a termination of this Lease. Upon destruction of the Premises
in whole or in part, by fire or any other cause, if Tenant shall not exercise
its option to terminate this Lease within such one hundred twenty (120) days,
all fire and hazard insurance proceeds set forth in Section 7 above shall be
paid to Tenant as an additional insured, and Tenant to the extent of the amount
of such insurance proceeds delivered to Tenant shall at its expense promptly
restore the Premises to the condition they were in immediately prior to such
damage; PROVIDED HOWEVER, that the insurance coverage maintained by Landlord
provides all of the funds necessary to restore the Premises; AND FURTHER
PROVIDED HOWEVER, in the event Tenant exercises its option to
Page 28 of 55
<PAGE>
terminate this Lease within such one hundred twenty (120) days, all such
insurance proceeds shall be paid to Landlord as an additional insured. Any
excess insurance proceeds shall belong to Landlord. In the event there is
insufficient insurance coverage and proceeds, as aforesaid, the obligation
of the Tenant to restore the Premises shall be null and void and the
Landlord must restore the Premises to its original condition provided such
insurance proceeds are made available to Landlord for such restoration.
9. Hazardous Substance Remediation. Notwithstanding anything contained herein
to the contrary, Tenant shall not be required to remediate, purge or
remove, or bear the cost of such remediation, purge or removal of, any
hazardous substance which contaminated the Premises, Land, Common Area
and/or Building prior to the commencement of the term of this Lease or
which existed at the commencement of the term of this Lease and worsened
through no fault of Tenant thereafter. In addition, Tenant shall not be
obligated to take actions to prevent such worsening of contamination which
existed at the commencement of this Lease. Landlord shall indemnify Tenant
and hold Tenant harmless from any and all liability, claim, injury, damage,
penalty, or cost, (including reasonable attorney's fees) arising out of
third party claims or assertions resulting from any hazardous substances
existing on the Premises, Land, Common Area and/or Building as of the
effective date of this Lease.
10. Americans With Disabilities Act. Notwithstanding any term or provision to
the contrary contained herein, the Landlord, at Landlord's sole cost and
expense, shall ensure that the Building, Common Area, and Premises and
improvements thereon shall be in material compliance with the Americans
With Disabilities Act, as the same is amended from time to time (the
"Act"). Tenant shall not be required to make any alterations or additions
to the Building, Common Area, or Premises (both structural and
non-structural) that may be necessary from time to time to keep or bring
the Building, Common Area, and Premises in material compliance with the
Act.
11. Alterations. Tenant shall not make, or suffer to be made, any alterations
of the Premises, or any part thereof, without the written consent of
Landlord, which consent shall not be unreasonably withheld.
12. Entry by Landlord. Landlord shall have the right to enter the Premises at
reasonable times, for the purpose of inspection, posting notices or
supervising any necessary repairs and maintenance required hereto to be
performed by Landlord, upon reasonable notice to Tenant.
13. Signs and Parking. Tenant shall have the nonexclusive right to use the
parking area which is part of the Common Area. Tenant, at its discretion,
may erect such signs as it deems necessary or appropriate, with the written
consent of Landlord, which consent shall not be unreasonably withheld, and
so long as the same comply with applicable laws and zoning restrictions.
14. Assignment and Subletting. Tenant shall have the right to make subleases of
all or any portion of the Premises and any permitted sublessee may use the
same for any lawful purpose permitted by this Lease, so long as Tenant
shall agree in writing to remain liable hereunder as though no subleases
had been made, unless Landlord acknowledges in writing that Tenant shall
not remain liable hereunder. Landlord may assign this Lease and all rights
hereunder provided Tenant's use and enjoyment of the Premises during the
term of this Lease is not disturbed.
15. Default of Tenant. The occurrence of any of the following events shall
constitute a breach of this Lease:
A. The failure of Tenant to pay rent or to make any other payment of money as
herein required when due for a period of ten (10) days after delivery by
Landlord of a written notice to Tenant of any such failure.
B. The failure of Tenant to correct any default hereunder, other than those
specified in subdivisions (A) of this Section 15 within thirty (30) days
after delivery by Landlord to Tenant of a written notice of such default,
or if the default is of such a nature that it cannot be corrected within
thirty (30) days, then the
Page 29 of 55
<PAGE>
failure of Tenant within such period to commence and thereafter proceed
diligently to cure such default.
If any of the above-mentioned events of default shall occur, the Landlord at its
option may re-enter and take possession of the Premises, and at its option
terminate this Lease and accelerate all payments due or coming due hereunder.
16. Default of Landlord. If at any time during the term hereof Bannen P.A.
and/or Richardson P.A. shall default in any of its obligations under this
Lease and/or Bannen or Bannen P.A. shall default in any of its obligations
under the Purchase Agreement, Tenant may give written notice to Landlord of
its intention to terminate the Lease together with a statement of the
nature of such default, and such termination shall become effective on the
thirtieth (30th) day after the date of such notice unless (a) such default
shall be cured within thirty (30) days after such notice, or (b) if the
default is of such a nature that it cannot be cured within such period, the
necessary steps to cure such default are duly commenced within such period
and are thereafter diligently pursued. Upon the termination of this Lease
as herein provided, Tenant shall be entitled to a refund of all rents paid
in advance from the date of termination to the date through which the rent
shall have been paid; provided however, nothing contained herein shall be
construed to limit Tenant's available remedies at law or equity.
17. Holding Over. In case Tenant holds over after the end of any term herein
provided, such tenancy shall be from month to month only, and not a renewal
hereof; subject, however, to every other term, covenant and condition of
this Lease, and the rent shall be at the monthly rate of the last year of
the last Renewal Term.
18. Condemnation. If any portion of the Premises shall be taken or condemned by
any competent authority for any public or quasi-public use or purpose so as
to render the remaining portion of the Premises unsuited for Tenant's
reasonable uses, even though the entire Premises be not so taken or
condemned, then Tenant, at any time thereafter, shall have the right to
terminate this Lease. Upon the termination of this Lease as herein
provided, Tenant shall be entitled to a refund of all rents paid in advance
from the date of termination to the date through which the rent shall have
been paid. Tenant hereby waives any and all rights to participate in the
proceeds of any award made in any condemnation proceedings for the taking
of the Premises, or any portion thereof, except the right to participate in
Tenant's equitable portion of any proceeds for the loss of Tenant's
business at such location, if any.
19. Quiet Enjoyment. Landlord agrees and warrants that Tenant, keeping and
performing the covenants herein contained on the part of Tenant to be kept
and performed, shall at all times during the term of this Lease peaceably
and quietly have, hold and enjoy the Premises.
20. Removal of Trade Fixtures / Related Leases. Upon the termination of the
Lease, all trade fixtures, furniture, equipment and other personal property
which Tenant placed upon the Premises or Common Area may be removed by
Tenant, provided Tenant shall otherwise leave the Premises and Common Area
in reasonable condition.
21. Set Off. Anything contained in this Lease to the contrary notwithstanding,
Tenant shall have the right of set off and recoupment against amounts
coming due hereunder in the event that Bannen P.A., Richardson, P.A.,
and/or Bannen breaches this Lease, or that certain Purchase Agreement or
any document ancillary thereto. In the event Tenant elects to exercise the
right of set off and recoupment set forth herein, upon notice to Landlord
the rental hereunder shall be deemed reduced by the amount of any set off
or recoupment to which the Tenant is entitled. Landlord's right to lawfully
contest such set off or recoupment in any action to collect rental
hereunder shall not be impaired by Tenant's exercise of such set off
or recoupment rights. The inclusion of this special set off or
recoupment provision shall not affect the availability, if any, of rights
of set off or recoupment arising at law or in equity.
Page 30 of 55
<PAGE>
22. Subject to Purchase Agreement. This Lease is made, executed and deliver
pursuant to the Purchase Agreement, and is subject to all the terms,
provisions, and conditions thereof, including (without limitation) the
indemnification therein. To the extent of any conflict between the terms
hereof and thereof, the terms of the Purchase Agreement shall be
controlling.
23. Representations and Warranties of Landlord. Landlord hereby jointly and
severally warrants, represents, and covenants as follows:
A. Organization and Good Standing. Both Bannen P.A. and Richardson P.A. are
corporations duly organized, validly existing, and in good standing under
the laws of the State of South Carolina and have full corporate power to
carry on their respective businesses and to own and operate their
respective properties and assets as presently owned and operated. Each
Landlord has taken all corporate action necessary to approve and authorized
the execution of this Lease, and to consummate the transactions
contemplated hereby. When executed and delivered, this Lease shall
constitute valid and binding obligations of Landlord, enforceable in
accordance with its terms and conditions except as enforcement may be
limited by applicable bankrupt, insolvency or similar laws effecting
creditors rights generally and by principles of equity. Neither the
execution nor the delivery of this Lease nor the consummation of the
transactions contemplated hereby, nor compliance with all of the terms and
conditions hereof, will result in the breach by either Landlord of any of
the terms, conditions or provisions of any trust, order, judgment, law, or
other contract, agreement or instrument to which it is a party, or by which
it is bound, or constitute a default of such indenture, mortgage, deed of
trust, order, judgment, law, or other contract, agreement or instrument.
B. Title to Premises. Upon execution and delivery of this Lease, Landlord will
have good, marketable and insurable title to the Building, Premises and
Common Area, and 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 Premises, Common Area, or Building for
which any such person or entity could claim a lien against the Premises or
Common Area.
C. Consents. No consent of any third party is required in connection with
Landlord's lease of the Premises and Common Area hereunder, including but
not limited to the consent of any other tenant of the Building.
D. Litigation. There are no judicial or administrative actions or proceedings
pending, or to the best of Landlord's knowledge threatened, that question
the validity of this Lease or any transaction contemplated hereby or that
relate to the Premises or Common Area, including but not limited to
condemnation or bankruptcy proceedings, which if adversely determined would
have an adverse effect upon Landlord's ability to enter into this Lease or
perform its obligations hereunder or upon the use, enjoyment, or value of
the Premises and Common Area for Tenant.
E. Payables and Taxes. Landlord will pay all payables and taxes, assessments,
and charges respecting the Premises and Common Area incurring prior to the
commencement of the term of this Lease within a reasonable amount of time
following the execution and delivery of this Lease.
F. Zoning. To the best of Landlord's knowledge, the Building and Premises is
currently zoned for commercial operations and is in compliance with
applicable zoning laws and ordinances; and Landlord does not know that the
status of such zoning is in question or subject to change by the
appropriate governmental authorities.
G. Environmental. To the best of Landlord's knowledge, neither the Land,
Building nor Premises is now used and have ever been used, as a gasoline
station or other site for the storage of petroleum products, or as a
garbage or refuse dump site, a landfill, a waste disposal facility for the
storage, processing, treatment or temporary or permanent disposal of
regulated waste materials, including without limitation solid, industrial,
toxic, hazardous, radioactive, nuclear or putrescible waste or sewage, and,
to the best of Landlord's knowledge, is in substantial compliance with
applicable environmental laws.
Page 31 of 55
<PAGE>
24. Representations and Warranties of Tenant. Tenant hereby represents,
warrants, and covenants as follows:
A. Organization and Good Standing. Tenant 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.
Tenant has taken all corporate action necessary to approve and authorized
the execution of this Lease, and to consummate the transactions
contemplated hereby. When executed and delivered, this Lease shall
constitute valid and binding obligations of Tenant, enforceable in
accordance with its terms and conditions except as enforcement may be
limited by applicable bankrupt, insolvency or similar laws effecting
creditors rights generally and by principles of equity. Neither the
execution nor the delivery of this Lease nor the consummation of the
transactions contemplated hereby, nor compliance with all of the terms and
conditions hereof, will result in the breach by Tenant of any of the terms,
conditions or provisions of any trust, order, judgment, law, or other
contract, agreement or instrument to which it is a party, or by which it is
bound, or constitute a default of such indenture, mortgage, deed of trust,
order, judgment, law, or other contract, agreement or instrument.
B. Consents. No consent of any third party is required in connection with the
lease of the Premises hereunder.
C. Litigation. There are no judicial or administrative actions or proceedings
pending, or to the best of Tenant's knowledge threatened, that question the
validity of this Lease or any transaction contemplated hereby.
25. Binding Effect. This Lease shall inure to the benefit of the heirs,
successors, representatives, and permitted assigns of the parties hereto,
and shall bind the heirs, successors, representatives, and assigns of the
parties hereto.
26. References to Gender and Number Terms. Whenever the context requires, the
singular number shall include the plural, the plural the singular, and the
use of any gender shall include all genders.
27. Days Defined. Any reference in this Lease to a number of days shall mean
calendar days unless otherwise expressly provided.
28. Attorney's Fees. If any action at law or in equity shall be brought to
recover any rent under this Lease, or for or on account of any breach of or
to enforce or interpret any of the covenants, terms or conditions of this
Lease, or for the recovery of the possession of the Premises, the
prevailing party shall be entitled to recover from the other party as part
of the prevailing party's cost a reasonable attorney's fee, the amount of
which shall be fixed by the court and shall be made a part of any judgment
rendered.
29. Headings. The headings of the paragraphs of this Lease are for convenience
or reference only and are not a part of this Lease.
30. Modifications. This Lease can only be modified by a written agreement duly
signed by authorized representatives of each party hereto. Moreover, in
order to avoid uncertainty, ambiguity and misunderstandings in their
relationships, the parties hereto covenant and agree not to enter into any
oral agreement or understanding inconsistent or in conflict with this
Lease; and the parties hereto further covenant and agree that any oral
communication allegedly or purportedly constituting such an agreement or
understanding shall be absolutely null, void and without effect.
31. Waiver. Any waiver by either party of any breach or any term or condition
hereof shall be effective only if in writing and such writing shall not be
deemed to be a waiver of any subsequent or other breach, term or condition
of this Lease.
Page 32 of 55
<PAGE>
32. Relationship of the Parties. Nothing herein shall be deemed to create any
partnership, joint venture, or agency relationship between the parties.
Neither party shall make any representation or statement (whether oral or
written) to any person or entity inconsistent with this paragraph.
33. Third Parties. The provisions of this Lease are not intended to be for the
benefit of any third parties, and no third party shall be deemed to have
any privity of contract with either of the parties hereto by virtue of this
Lease.
34. Time of Essence. The parties acknowledge and agree that time is of the
essence in the performance of this Lease.
35. Severability. If any provision or provisions of this Lease shall be held to
be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected
or impaired thereby.
36. Governing Law. The construction and interpretation of this Lease shall at
all times and in all respects be governed by the laws of the State of South
Carolina.
37. Venue and Jurisdiction. The parties hereto hereby (i) agrees that any
litigation, action or proceeding arising out of or relating to this Lease
may be instituted in a state or federal court in the State of South
Carolina, (ii) waives any objection which it might have now or hereafter to
any such litigation, action or proceeding based upon improper venue or
inconvenient forum, and (iii) irrevocably submits to the jurisdiction of
such courts in any such litigation, action or proceeding. For all purposes
of this Lease, the parties hereto irrevocably consents to personal
jurisdiction of such courts, and further agrees that service of process
upon such party may be effected pursuant to the United States mail.
38. No Inference Against Author. No provision of this Lease shall be
interpreted against any party because such party or its legal
representative drafted such provision.
39. Entire Lease. This Lease constitutes the entire agreement between the
parties with respect to the subject matter hereof and supersedes all prior
contemporaneous written or oral agreements and representations between the
parties with respect thereto.
40. Recordation. This Lease or a memorandum hereof may be recorded by either
party. The parties agree to execute for recording purposes any such
memorandum.
41. Notices. Any notice, request, approval, consent, demand or other
communication shall be effective upon the first to occur of the following:
(i) upon receipt by the party to whom such notice, request, approval,
consent, demand or other communication is being given; or (ii) seven (7)
business days after being duly deposited in the United States mail,
certified or registered, return receipt requested, and addressed as
follows:
Landlord: William J. Bannen, Jr., M.D., F.A.A.F.P., A.M.E., P.A.
James F. Richardson, M.D., P.A.
3106 Bethel Road #1
Simpsonville, SC 29681
Attn: William J. Bannen, Jr., M.D.,
Tenant: UCI Medical Affiliates of South Carolina, Inc.
1901 Main Street, Suite 1200
Columbia, SC 29201
Attn.: Stephen Seeling, Esquire
Page 33 of 55
<PAGE>
The parties hereto may change their respective addresses by notice in writing
given to the other party to this Lease.
42. Joint and Several Liability. Notwithstanding anything contained herein to
the contrary, Bannen P.A. and Richardson, P.A. shall be jointly and
severally liable for all warranties, representations, and obligations
(including all costs and expenses) of Landlord contained herein.
IN WITNESS WHEREOF, the parties hereto have executed this Lease
Agreement to be effective as of the day and year first above written.
IN THE PRESENCE OF: LANDLORD:
WILLIAM J. BANNEN, JR., M.D., F.A.A.F.P.,
A.M.E., P.A.
/s/ Peter A. Leventis By: /s/ William J. Bannen, Jr., M.D.
(Witness as to Landlord) Its: President
/s/ Marian Owens
(Witness as to Landlord)
JAMES F. RICHARDSON, M.D., P.A.
/s/ Peter A. Leventis By: /s/ James F. Richardson, M.D.
(Witness as to Landlord) Its: President
/s/ Marian Owens
(Witness as to Landlord)
TENANT:
UCI MEDICAL AFFILIATES OF SOUTH
CAROLINA, INC.
/s/ Peter A. Leventis By: /s/ Stephen S. Seeling
(Witness as to Tenant) Its: Chief Operating Officer and Counsel
/s/ Marian Owens
(Witness as to Tenant)
Page 34 of 55
<PAGE>
GUARANTY
The undersigned WILLIAM J. BANNEN, JR., M.D. ("Bannen"), hereby
irrevocably and unconditionally guarantee the proper and timely performance
and/or full and timely payment of each and every term, obligation, covenant,
representation and warranty of WILLIAM J. BANNEN, JR., M.D., F.A.A.F.P., A.M.E.,
P.A., a South Carolina corporation, and JAMES F. RICHARDSON, M.D., P.A., a South
Carolina corporation (collectively the "Landlord"), contained in the foregoing
Lease Agreement (the "Lease") by and between Landlord and UCI Medical Affiliates
of South Carolina, Inc., a South Carolina corporation, respecting the premises
located at 304 South Main Street, Simpsonville, South Carolina and dated
effective as of October 14, 1996, as amended from time to time. This guaranty is
a guarantee of payment and not of collection and shall survive any amendment or
termination of the Lease until all obligations of Landlord under the Lease are
satisfied in full. Bannen hereby waives presentment, demand, protest, notice of
non-payment, notice of default, notice of compromise or surrender, and any other
demand or notice whatsoever in connection with this Guaranty. In the event this
Guaranty is placed in the hands of an attorney for collection, all expenses of
the prevailing party, including reasonable attorney's fees, shall be added to
this Guaranty and collected as a part hereof. This Guaranty shall be governed by
and construed in accordance with the laws of the State of South Carolina.
IN THE PRESENCE OF:
/s/ Peter A. Leventis /s/ William J. Bannen, Jr., M.D., P.A.
(Witness) William J. Bannen, Jr., M.D., P.A.
/s/ Hope McElreath
(Witness)
Page 35 of 55
<PAGE>
STATE OF SOUTH CAROLINA )
) PROBATE
COUNTY OF GREENVILLE )
PERSONALLY appeared before me the undersigned witness and made oath
that s/he saw the within-named WILLIAM J. BANNEN, JR., M.D., F.A.A.F.P., A.M.E.,
P.A., South Carolina professional corporation, by William J. Bannen, Jr., M.D.,
its President, sign, seal, and as his/her act and deed, deliver the
within-written instrument for the uses and purposes therein mentioned, and that
s/he with the other witness whose signature appears above, witnessed the
execution thereof.
/s/ Peter A. Leventis
/s/ William J. Bannen, Jr., M.D., P.A.
WITNESS
SWORN TO before me this 10th day of October, 1996.
/s/ Hope McElreath (L.S.)
Notary Public for South Carolina
My Commission Expires: January 18, 2001
STATE OF SOUTH CAROLINA )
) PROBATE
COUNTY OF GREENVILLE )
PERSONALLY appeared before me the undersigned witness and made oath
that s/he saw the within-named JAMES F. RICHARDSON, M.D., P.A., South Carolina
professional corporation, by James F. Richardson, M.D., its President, sign,
seal, and as his/her act and deed, deliver the within-written instrument for the
uses and purposes therein mentioned, and that s/he with the other witness whose
signature appears above, witnessed the execution thereof.
/s/ Peter A. Leventis
/s/ William J. Bannen, Jr., M.D., P.A.
WITNESS
SWORN TO before me this 10th day of October, 1996.
/s/ Hope McElreath (L.S.)
Notary Public for South Carolina
My Commission Expires: January 18, 2001
Page 36 of 55
<PAGE>
STATE OF SOUTH CAROLINA )
) PROBATE
COUNTY OF GREENVILLE )
PERSONALLY appeared before me the undersigned witness and made oath
that s/he saw the within-named UCI MEDICAL AFFILIATES OF SOUTH CAROLINA, INC.,
by Stephen S. Seeling, its Chief Operating Officer and Counsel, sign, seal, and
as its act and deed, deliver the within-written instrument for the uses and
purposes therein mentioned, and that s/he with the other witness whose signature
appears above, witnessed the execution thereof.
/s/ Peter A. Leventis
/s/ Stephen S. Seeling
WITNESS
SWORN TO before me this 10th day of October, 1996.
/s/ Hope McElreath (L.S.)
Notary Public for South Carolina
My Commission Expires: January 18, 2001
STATE OF SOUTH CAROLINA )
) PROBATE
COUNTY OF GREENVILLE )
PERSONALLY appeared before me the undersigned witness and made oath
that s/he saw the within-named WILLIAM J. BANNEN, JR., M.D., sign, seal, and as
his act and deed, deliver the within-written instrument for the uses and
purposes therein mentioned, and that s/he with the other witness whose signature
appears above, witnessed the execution thereof.
/s/ Peter A. Leventis
/s/ William J. Bannen, Jr., M.D.
WITNESS
SWORN TO before me this 10th day of October, 1996.
/s/ Hope McElreath (L.S.)
Notary Public for South Carolina
My Commission Expires: January 18, 2001
Page 37 of 55
<PAGE>
SCHEDULE 1
LEGAL DESCRIPTION OF THE LAND
All that certain lot of land and improvements thereon lying in the Town
of Simpsonville, County of Greenville, State of South Carolina, on the
western side of the C. & W.C. Railroad, containing 1-1/4 acres, more or
less, and having the following metes and bounds, to-wit:
BEGINNING in the center of C. & W.C. Railroad and running thence N.
86-3/4 W., 675 ft. across main street; thence N. 34-3/4 E., 25 ft. to
an iron pin; thence N. 51 E., 106 ft. to an iron pin; thence S. 86-3/4
E. 558 ft. across main street to the center of said railroad; thence
down the center of said railroad to the beginning corner.
The property above was conveyed by the following deeds: 1) By deed
dated December 29, 1955 from Ruby Todd to L. R. Richardson, Jr. and
William J. Bannen, Jr., recorded in the R.M.C. Office for Greenville
County, South Carolina, in Deed Book 542 at Page 216; and 2) by deed
dated January 24, 1969 from L. R. Richardson, Jr. and William J.
Bannen, Jr. one-third interest to James F. Richardson, recorded in the
R.M.C. Office for Greenville County, South Carolina, in Deed Book 861
at Page 227. The property was subsequent conveyed by deed dated July 3,
1980 from L. R. Richardson, Jr., William J. Bannen, Jr., and James F.
Richardson to Golden Strip Medical Associates, Inc., recorded in the
R.M.C. Office for Greenville County, South Carolina, in Deed Book 40 at
Page 1458.
Page 38 of 55
<PAGE>
SCHEDULE 2
DESCRIPTION OF THE PREMISES
An "interior schematic" drawing is being maintained in the corporate offices of
UCI Medical Affiliates, Inc.
Page 39 of 55
<PAGE>
Exhibit E
STATE OF SOUTH CAROLINA )
) EMPLOYMENT AGREEMENT
COUNTY OF LEXINGTON )
THIS AGREEMENT made and entered into this day of LEFT BLANK 1996
between Doctor's Care, P. A. (hereinafter "Employer"), a South Carolina
Professional Association with its principal office in Columbia, South Carolina,
and, WILLIAM J. BANNEN, JR., MD (hereinafter "Employee").
WHEREAS, Employer is a South Carolina Professional Association and
wishes to employ the Employee to render medical services for it; and,
WHEREAS, Employee is a licensed physician in South Carolina and desires
and is willing to become a professional employee of Employer, in accordance with
the following terms, conditions, and provisions:
NOW, THEREFORE, for and in consideration of the promises herein and
other valuable consideration, it is agreed that:
(1) Employment Term. Subject to the provisions for termination as
hereinafter provided, the term of this Agreement shall be five
(5) years beginning October 14, 1996. After the initial five
(5) year term, this Agreement shall be renewable upon the
mutual agreement of both parties.
(2) Duties.
(A) Employee shall devote his full-time (approximately 40
hours per week) and professional skill and attention
to the performance of services in the practice for
the benefit of Employer at Doctor's Care Simpsonville
Center (the "Center") or such other Center within a
four (4) mile radius of Employer's facility at 304
South Main Street, Simpsonville, South Carolina, as
shall reasonably be assigned by Employer. Employee's
duty schedule shall be determined by Employer, and
Employer shall provide such evenings and weekend
coverage as shall be needed and assigned by Employer.
(B) Employee shall not engage in any outside professional
activities involving the personal services of
Employee and yielding a financial return without
Employer's prior written consent. However, nothing
stated herein shall restrict or prevent employee from
personally and on Employee's own account, investing
in stocks, bond securities, commodities, real estate,
or other forms of investments.
(C) Employee will actively and industriously pursue his
profession in Employer's interest, will faithfully
adhere to the principles and ethics of the
profession, and will carefully avoid any and all
personal acts, habits and usages which might injure
in any way, directly or indirectly, Employer's
professional reputation or that of any other employee
of Employer, or which might otherwise be detrimental
to any interest of Employer.
(D) Employee hereby agrees that all fees received or
collected as a result of 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 does not
confer upon Employee any ownership interest in or
professional claim upon any fees charged by
Page 40 of 55
<PAGE>
Employer
for Employee's services, whether said fees are
collected during Employee's employment or after
termination thereof.
(3) Compensation.
(A) Regular Compensation. For all services rendered under
this Agreement, Employer shall pay the Employee an
initial salary of $85,000 PER YEAR payable in
biweekly installments.
(B) Changes in Compensation. From time to time, increases
in the Employee's salary may be made, said increases
to be reflected on the "Schedule of Compensation"
attached hereto and made apart hereof; provided
however nothing contained herein shall be construed
to require Employer to increase Employee's salary.
Each year during the five year agreement, the
Employee's salary will increase by $5,000 per year as
noted on the attached Schedule of Compensation.
(C) Bonuses. Employer may from time to time review
Employee's compensation arrangement with respect to
the payment of a bonus for superior performance; and
contributions to Employer. Factors to be considered
in making a bonus payment, if any, shall include but
not be limited to Employee's demonstrated commitment
to quality care, the results of patient satisfaction
surveys and patient audits, Employee's ability to
build and enhance a patient base, and Employee's
contribution to the Employer's accomplishment of
company goals; provided however that the decision to
make bonus payments, if any, shall be at the sole
discretion of Employer.
(4) Fringe Benefits. As further consideration for the performance
by Employee of the services set forth herein, Employee shall
be eligible on a non-discriminatory basis for participation in
any tax qualified deferred compensation plan maintained by
Employer and also for inclusion in any group-term life
insurance plan maintained by Employer, provided the Employee
is deemed an eligible Employee under such plan. Not
withstanding the foregoing, Employee understands that the
decision to maintain any such plans shall be in sole
discretion of Employer.
(A) Health Insurance Coverage. Employer shall provide for
Employee such health coverage as provided to other
employees of Doctor's Care, P. A. Family coverage is
available at Employee's sole cost and expense.
(B) Group Term Life Insurance & Group Disability
Insurance. Employer, at its cost, shall furnish such
life and disability insurance for Employee as it,
from time to time, may provide to other Employees.
(5) Vacation and Professional Meetings. Beginning with the first
year of employment during this Agreement, Employee shall be
entitled to three weeks of paid vacation. 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
be carried over from year to year.
(6) Inability to Perform Services. If Employee is unable to
perform the services contemplated by this Agreement as a
result of illness or incapacity, Employee shall continue to
receive for a period of three (3) months those Employee
benefits, if any, provided for Employee by Employer hereunder,
but Employee shall not receive the Regular Compensation set
forth in Section 3A herein during the period of such
incapacity. Anything to the contrary contained herein
notwithstanding if Employee is not able to resume the
performance of such duties
Page 41 of 55
<PAGE>
within three (3) months and one day
(1) of the date Employee was first unable to perform such
duties, Employee may be deemed, at the sole discretion of the
Employer, to have terminated Employee's employment hereunder,
and Employer shall have the right to pursue all remedies set
forth herein related to such a termination.
(7) Equipment and Expenses.
(A) Facilities. Employer shall provide and pay for office
space and facilities, furniture, fixtures, equipment,
supplies, employees and assistants appropriate for
the proper performance of the duties of Employee.
(B) Professional Liability Insurance. Employer shall
either pay or, upon proof of payment by the Employee,
reimburse the Employee for the cost of Professional
Liability (malpractice) Insurance covering the
Employee for services provided hereinunder for claims
as follows: the first Three Hundred Thousand Dollars
($300,000) in aggregate coverage shall be through the
South Carolina Medical Malpractice Joint Underwriters
Association ("JUA"); the excess coverage shall be
provided through the South Carolina Patients'
Compensation Fund ("PCF"). Employee understands that
the amount of coverage provided by JUA and PCF may
not be adequate to protect Employee against all
claims and that the responsibility of securing
additional insurance coverage, if any, is solely that
of Employee. Employee understands and acknowledges
that upon termination of Employee's employment
hereunder, Employer has the right and authority to
cancel Employee's professional liability coverages
that had been paid by Employer, and that Employer
shall receive and retain any premiums or other monies
returned as a result of such cancellations.
(C) License Fees, Memberships and Dues. Employer shall
either pay or, upon proof of payment by the Employee,
reimburse to Employee for the actual cost of annual
licensure, and controlled substance registration
fees. In addition, membership in the South Carolina
Medical Association, American Medical Association and
American Academy of Family Practitioners shall be
paid for by Employer.
(D) Documentation. Employee agrees to submit to Employer
the documentation as may be necessary to substantiate
the deductibility of the foregoing expenses for
income tax purposes.
(8) Employee Death. If Employee dies during the term of this
Employee's employment hereunder, Employer shall pay to
Employee's named beneficiary, or in default of the named
beneficiary to Employee's estate, all salary accrued but
unpaid through the pay period which includes the date of
Employee's death.
(9) Patients and Records. Employer and Employee agree that all
patient lists, records, and charts are the property of
Employer, and that upon termination of Employee's employment
hereunder, Employee shall not be entitled to receive any
patient lists, records, or charts whether or not the Employee
shall have seen or attended any such patient; 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.
(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.
Page 42 of 55
<PAGE>
(11) Conditions of Termination. Employee understands and agrees
that cause for termination of employment includes, but is not
limited to the following:
(A) At any time by mutual agreement in writing between
Employer and Employee.
(B) Upon the occurrence of any of the following, Employer
in its sole discretion, may elect to terminate
Employee's employment hereunder:
(1) 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
(2) The loss, suspension, or limitation of
Employee's Controlled Substance license, or
(3) If Employee performs any negligent or
intentional act which directly or indirectly
damages the reputation or property of
Employer.
(C) At the death of Employee.
(D) At the option of the Employer, upon thirty (30) days
prior written notice for "good cause", which shall
mean failure of Employee to provide the agreed duties
hereunder or willful violation by Employee of any of
the terms of this Agreement.
(E) Upon a party hereto failing to perform and cure any
covenant or condition hereunder within thirty (30)
days after written notice and demand, the
non-defaulting party may terminate Employee's
employment hereunder.
(F) Upon the bankruptcy, insolvency or assignment for the
benefit of the creditors of Employer, or any other
type of voluntary or involuntary creditors proceeding
involving the property of Employer, Employee may
elect to terminate Employee's employment hereunder.
(G) Upon Employee's failure to satisfactorily comply with
accepted standards of medical practice and
professional conduct, Employer, in its sole
discretion, may elect to terminate Employee's
employment hereunder.
(H) If Employee engages in the abuse of drugs,
intoxicants or other mood-altering substances or if
Employee treats or attempts to treat a patient while
under the influence of drugs, intoxicants or other
mood-altering substances.
(I) Upon thirty days notice, Employer in its sole
discretion, may elect to terminate Employee's
employment hereunder if Employee does not satisfy the
credentialing requirements of the managed care and
other plans with which Employer participates.
(J) Upon breach of the Purchase Agreement, the
non-breaching party may terminate Employee's
employment hereunder.
(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
Page 43 of 55
<PAGE>
limitation, Employer's patents, copyrights, proprietary
information, trade secrets, trademarks, systems, procedures,
manuals, confidential reports, records, operational expertise,
locations and lists of clients, patients and potential clients
and patients, 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 Employee's employment
hereunder.
(13) Covenants Against Competition.
A. Representations.
(1) The parties hereto acknowledge that Employee
has conducted the Practice for a substantial
number of years. Thereby, Employee has made
use of, acquired, and added to confidential
and proprietary information and trade
secrets of the Practice, all of which are
portions of the Assets of Employee (which
Assets are being sold to UCI of SC pursuant
to the Purchase Agreement). Employee also
has developed unique relationships with
customers, patients, suppliers, and
employees of the Practice and unique
information and knowledge about the
competitive market, locations, potential
patients and customers, processes and
prospects of Employee's business. UCI of SC
and/or Employer intends to operate the
Assets acquired from Employee for UCI of SC
and Doctor's Care's business similar to the
Practice. The value of UCI of SC's
acquisition would be diminished in the event
that Employee were to compete with UCI of SC
and/or Employer, to assist another person or
entity to compete with UCI of SC and/or
Doctor's Care, or to wrongfully divulge any
confidential information.
(2) UCI of SC and Employer have required, as a
condition precedent to its purchase of such
Assets pursuant to the Purchase Agreement,
that Employee covenant not to divulge any
confidential information and not to compete
with UCI of SC and/or Doctor's Care as set
forth herein. Employee has agreed to provide
such covenants as set forth herein as a
material inducement to UCI of SC and
Employer to enter
into and close the Purchase Agreement and in
consideration of the payments to be made
thereunder and hereunder. Employee's
covenants contained herein are ancillary to
the Purchase Agreement. Employee
acknowledges that he will benefit from the
Purchase Agreement.
B. Existing Patients. Upon execution of this Agreement,
Employee shall provide to Employer a list (by name and
address) of Employee's existing patients ("Existing
Patients") as of such date (the "List"). Notwithstanding
anything contained herein to the contrary, in the event
Employee's employment hereunder terminates for any reason,
Employer, upon receipt of written request, shall provide
to Employee, as soon as reasonably possible, a copy of the
records and charts of any Existing Patient on the List
provided that:
(1) Employee reimburses Employer for Employer's
reasonable costs and expenses incurred in
providing copies of such records and charts; and
Page 44 of 55
<PAGE>
(2) The release of such records and charts to
Employee of an Existing Patient is directed in a
writing signed by such Existing Patient or such
Existing Patient's legal representative and
delivered to Employer; and
(3) Each party complies with all applicable laws and
the requirements of medical ethics.
C. Customers. During the term of Employee's employment
hereunder, Employee shall not, directly or through an
Affiliate (as defined below), (i) provide medical
care or services (or assist another person or entity
to provide medical care or services to) to any
Customer (as hereinafter defined), or (ii) solicit or
divert (or assist another person or entity to solicit
or divert) any Customer from purchasing or using any
of UCI of SC's and/or Employer's services. For
purposes of this Section, the term "Customer" shall
mean any patient, client or customer of the Practice
and shall include (without limitation) every such
person or employer to which the Employee has provided
medical services prior to the date hereof.
Notwithstanding the foregoing, Employee shall not be
deemed to be in violation of any covenant contained
herein as a result of Employee's providing emergency
care to any Customer in a potentially
life-threatening situation.
D. Employees. In addition to (but not in limitation of)
the restrictions of (Sections 13(C), during the term
of Employee's employment hereunder, and for a period
of two (2) years after the termination of Employee's
employment hereunder for any reason, Employee shall
not, directly or through an Affiliate (as defined
below) solicit or in any manner attempt to solicit or
induce any person employed by, or an agent of, UCI of
SC or Employer to terminate such person's association
or contract of employment or agency, as the case may
be, with UCI of SC and/or Employer. Notwithstanding
the foregoing, nothing herein shall preclude Employee
from employing or seeking to employ any individual
who had been employed by Employee prior to the
commencement of this Agreement.
E. Non-Compete. During Employee's employment hereunder,
Employee shall not within the geographic area
specified below engage in any business or perform any
services, directly or indirectly, in competition with
the business of
Employer or UCI of SC or have any interest, whether
as a proprietor, partner, employee, stockholder
(directly or beneficially), principal, agent,
consultant, director, officer, or in any other
capacity or manner whatsoever, in any enterprise that
shall so engage; except that Employee shall be
permitted to own for investment purposes only,
directly or beneficially, up to (but not more than)
two (2%) percent in the aggregate of the stock of a
competing 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. The
restrictions of this Section 13(E) shall apply
everywhere within: (i) a fifteen (15) mile radius of
Employer's facility located at 304 South Main Street,
Simpsonville, South Carolina, and (ii) a fifteen (15)
mile radius of Employer's facility at which the
majority of Employee's work is being conducted at the
termination or expiration of the term of this
Agreement.
F. Definition of Affiliate. For purposes of this
Agreement, an "Affiliate" of Employee is a Person (as
defined below) that directly, or indirectly through
one or more intermediaries, controls, or is
controlled by, or is under common control with
Employee. For purposes of this Agreement, a "Person"
includes, in addition to such person, all of the
following persons: (i) any relative or spouse of such
person,
Page 45 of 55
<PAGE>
or any relative of such spouse, any one of
whom has the same home as such person; (ii) any trust
or estate in which such person or any of the persons
specified in Section 13(F)(i) of this Agreement
collectively own ten (10%) percent or more of the
total beneficial interest, or of which any of such
persons serve as trustee, executor or in any other
capacity; and (iii) any corporation, partnership,
limited liability company or other organization in
which such person or any of the persons specified in
Section 13(F)(i) of this Agreement are the beneficial
owners collectively of ten (10%) percent of any class
of equity securities, of the equity interest, or of
the partnership interest.
14. Reasonableness, Enforceability and Remedies.
A. Employee has carefully read and considered the
provisions of Sections 12, 13 and 14 hereof, and,
having done so, agrees that the restrictions set
forth in these Sections, including, but not limited
to, the time period of restriction and geographic
limitations set forth in Section 13, are fair and
reasonable and are reasonably required for the
protection of the interests of UCI of SC and Employer
and their respective officers, directors,
shareholders, employees and affiliates.
B. In the event that, notwithstanding the foregoing, any
of the provisions of Sections 12, 13 and 14 or any
parts thereof shall be held to be invalid or
unenforceable, the remaining provisions or parts
thereof shall nevertheless continue to be valid and
enforceable as though the invalid or unenforceable
portions or parts had not been included therein. In
the event that any provision of Section12 or 13
relating to the time period and/or geographic
restrictions and/or related aspects shall be declared
by a court of competent jurisdiction to exceed the
maximum restrictiveness such court deems reasonable
and enforceable, the time period and/or geographic
restrictions and/or related aspects deemed reasonable
and enforceable by the court shall become and
thereafter be the maximum restriction in such regard,
and the restriction shall remain enforceable to the
fullest extent deemed reasonable by such court.
C. Employee acknowledges that the services he is to
render are of a special and unusual character with a
unique value to Employer and UCI of SC, the loss of
which cannot adequately be compensated by damages in
an action at law. In the event of a breach or
threatened breach by Employee of any of the
provisions of Sections 12 or 13, Employer and/or UCI
of SC, in addition to and not in limitation of, any
other rights, remedies, or damages available to
Employer or UCI of SC under this Agreement, shall be
entitled to a permanent injunction in order to
prevent or restrain any such breach by Employee or by
Employee's partners, agents, representatives,
servants, employers, employees, consulting clients
and/or any and all persons directly or indirectly
acting for or with him.
D. Employee covenants and agrees that if he shall
violate any of his covenants or agreements under
Section 12 or 13, Employer and UCI of SC shall be
entitled to: (i) an accounting and repayment of all
profits, compensation, commissions, remuneration, or
other benefits that Employee directly or indirectly
has realized and/or may realize as a result of,
growing out of, or in connection with, any such
violation; (ii) recover actual damages incurred by
Employer and UCI of SC or their respective affiliates
as a result of any such violation; (iii) any
injunctive relief to which Employer or UCI of SC is
or may be entitled at law, in equity, or under this
Agreement; and (iv) exercise its other rights
respecting a breach of this Agreement as set forth
herein.
Page 46 of 55
<PAGE>
E. Employee's obligations under Sections 12, 13 and 14
shall survive any termination of employment
hereunder.
(15) Burden and Benefit. This Agreement shall be binding upon
Employer's successors and assigns and Employee's heirs,
personal and legal representative, successors and assigns, and
shall inure to the benefit of Employer's successors and
permitted assigns and Employee's heirs, personal legal
representatives, successors, and permitted assigns.
(16) Modifications. This Agreement can only be modified by a
written agreement duly signed by Employee and an authorized
representative of Employer. Moreover, in order to avoid
uncertainty, ambiguity and misunderstandings in their
relationships, the parties hereto covenant and agree not to
enter into any oral agreement or understanding inconsistent or
in conflict with this Agreement; and the parties hereto
further covenant and agree that any oral communication
allegedly or purportedly constituting such an agreement or
understanding shall be absolutely null, void and without
effect.
(17) Waiver. Any waiver by either party of any breach or any term
or condition hereof shall be effective only if in writing and
such writing shall not be deemed to be a waiver of any
subsequent or other breach, term, or condition of this
Agreement.
(18) Assignments. Neither this Agreement nor any rights hereunder
may be assigned or otherwise transferred by Employee.
(19) Cumulative Remedies. 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.
(20) Venue and Jurisdiction. The parties hereto hereby (I) agree
that any litigation, action or proceeding arising out of or
relating to this Agreement may be instituted in a state or
federal court located in South Carolina, (ii) waive any
objection which it might have
now or hereafter to any such litigation, action, or proceeding
based upon improper venue or inconvenient forum, and (iii)
irrevocably submit to the jurisdiction of such courts in any
such litigation, action or proceeding. For all purposes of
this Agreement, the parties hereto further agree that service
of process may be effected pursuant to United States mail.
(21) Entire Agreement This Agreement constitutes the entire
agreement between the parties with respect to the subject
matter hereof and supersedes all prior contemporaneous written
or oral agreements and representations between the parties
with respect thereto.
(22) Governing Law. The construction and interpretation of this
Agreement shall at all times and in all respects be governed
by the laws of the State of South Carolina.
(23) Severability. The invalidity or unenforceability or any
provision of this Agreement shall not render invalid or
unenforceable any other provision hereof.
(24) 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 "Paragraphs", "Sections", and
similar cross references shall refer to specified portions of
this Agreement, unless the context clearly requires otherwise.
(25) Enforcement. In the event litigation or other legal
proceedings are commenced to enforce any rights under this
Agreement, all reasonable legal expenses (including reasonable
attorney's fees) and other direct costs of litigation of the
prevailing party shall be paid by the non-prevailing party.
All remedies specified herein are cumulative and
non-exclusive, and
Page 47 of 55
<PAGE>
parties shall be entitled to seek or
enforce any other rights or remedies available to them at law
or in equity.
(26) Notices. Any notice, request, approval, consent, demand or
other communication shall be effective upon the first to occur
of the following: (I) upon receipt by the party to whom such
notice, request, approval, consent, demand or other
communication is being given; or (ii) seven (7) business days
after being duly deposited in the United States certified
mail, return receipt requested, and addressed as follows:
Employer: Doctor's Care, P. A.
1901 Main St., Suite 1200
Columbia, South Carolina 29201
Attn: Stephen Seeling, Esquire
Employee: William J. Bannen, Jr., MD
304 S. Main St.
Simpsonville, SC 29681
The parties hereto may change their respective addresses by notice in writing
given to the other party to this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement on the date first
set forth above.
EMPLOYER:
DOCTOR'S CARE, P. A.
By: /s/ M.F. McFarland, III, M.D.
Its: President
EMPLOYEE:
/s/ William J. Bannen, Jr., M.D.
William J. Bannen, Jr., MD
Page 48 of 55
<PAGE>
SCHEDULE OF COMPENSATION
Agreed To
Date Change Effective New Annual Salary Employer Employee
Year 1: $85,000
Year 2: $90,000
Year 3: $95,000
Year 4: $100,000
Year 5: $105,000
Page 49 of 55
<PAGE>
CURRENT BENEFITS
1. Beginning with first year of employment:
A. Three weeks (120 hours) paid vacation.
B. Memberships in the South Carolina Medical Society, AMA &
AAFP will be furnished.
C. Reimbursement of actual amounts for licensure and
membership fees.
D. One week (40 hours) paid leave for Continuing Education
activities.
E. Up to $1,000 annual reimbursement for Continuing
Education activities.
2. After three years: Four weeks (160 hours) paid vacation.
Page 50 of 55
<PAGE>
Exhibit F
BILL OF SALE
KNOW ALL MEN BY THESE PRESENTS, that WILLIAM J. BANNEN, JR., M.D.,
F.A.A.F.P., A.M.E., P.A., a South Carolina professional corporation with offices
at 304 South Main Street, Simpsonville, South Carolina 29681 (the "Seller"), for
the consideration paid by UCI MEDICAL AFFILIATES OF SOUTH CAROLINA, INC., a
South Carolina corporation with offices at 1901 Main Street, Suite 1200,
Columbia, South Carolina 29201 (the "Buyer") set forth in that certain Asset
Purchase Agreement dated effective as of October 14, 1996, by and between among
others Seller, Buyer, William J. Bannen, Jr., M.D., UCI Medical Affiliates,
Inc., and Doctor's Care, P.A. (the "Agreement"), the receipt and sufficiency
whereof is hereby acknowledge, has bargained and sold and by these presents does
sell, assign and transfer unto Buyer all of Seller's right, title and interest
in and to, all the accounts receivable, machinery, equipment, computers,
telephone systems, inventory, furniture, furnishings, office equipment, and
other tangible personal property composing portions of the Assets described in
the Agreement, all as provided in the Agreement.
TO HAVE AND TO HOLD the same unto Buyer, its successors and assigns,
forever. AND Seller does for itself and its successors and assigns, covenant and
agree to and with Buyer, its successors and assigns, to warrant and defend the
sale and conveyance of the aforesaid assets hereby sold unto Buyer.
This Bill of Sale is made, executed and delivered pursuant to the
Agreement, and is subject to all of the terms, provisions, and conditions
thereof, including (without limitation) the indemnification therein. To the
extent of any conflict between the terms hereof and thereof, the terms of the
Agreement shall be controlling.
All capitalized terms not otherwise defined herein shall have the
meanings ascribed to them in the Agreement unless the context clearly requires
otherwise.
IN WITNESS WHEREOF, Seller has duly executed this Bill of Sale this
10th day of October, 1996, to be effective as of 12:01 a.m. on the 14th day of
October, 1996.
IN THE PRESENCE OF: WILLIAM J. BANNEN, JR., M.D., F.A.A.F.P., A.M.E., P.A.
(CORPORATE SEAL)
/s/ Peter A. Leventis By: /s/ William J. Bannen, Jr., M.D., P.A.
(Witness) Its: President
/s/ Marian Owens
(Witness)
Page 51 of 55
<PAGE>
STATE OF SOUTH CAROLINA )
) PROBATE
COUNTY OF GREENVILLE )
PERSONALLY APPEARED before me the undersigned witness who, after first
being duly sworn, deposes and says that s/he saw the within named WILLIAM J.
BANNEN, JR., M.D., F.A.A.F.P., A.M.E., P.A., by William J. Bannen, Jr., M.D.,
its President, sign, seal and, as its act and deed, deliver the within written
Bill of Sale for the uses and purposes therein mentioned and that s/he with the
other witness whose signature appears above, witnessed the execution thereof.
/s/ Peter A. Leventis
Witness
SWORN to before me this 10th day of October, 1996.
/s/ Hope McElreath (L.S.)
Notary Public for South Carolina
My Commission Expires: January 18, 2001
Page 52 of 55
<PAGE>
Exhibit G
ASSIGNMENT AND ASSUMPTION AGREEMENT
KNOW ALL MEN, that WILLIAM J. BANNEN, JR., M.D., F.A.A.F.P, A.M.E.,
P.A., a South Carolina professional corporation, and WILLIAM J. BANNEN, JR.,
M.D. (collectively the "Assignor"), for and in consideration of good and
valuable consideration to it in hand paid at or before the ensealing and
delivery of these presents, by UCI MEDICAL AFFILIATES OF SOUTH CAROLINA, INC., a
South Carolina corporation ("Assignee"), the receipt and sufficiency whereof is
hereby acknowledged, hereby assigns to Assignee all of Assignor's right, title
and interest in and to the permits, licenses, computer software, and all other
intangible assets and rights composing portions of the Assets as described in
the Asset Purchase Agreement dated effective as of October 14, 1996, by and
between among others Assignor, Assignee, William J. Bannen, Jr., M.D., UCI
Medical Affiliates, Inc., and Doctor's Care, P.A. (the "Agreement"), all as
provided in the Agreement.
Assignee hereby covenants with Assignor to assume and faithfully
perform and discharge all of the terms, covenants, liabilities and obligations
set forth on Schedule 1 attached hereto (subject to the Agreement) maturing and
to be performed or discharged by Assignor, if any, under the above assigned
contracts beginning on the date hereof and henceforth.
This Assignment is made, executed, and delivered pursuant to the
Agreement, and is subject to all the terms, provisions and conditions thereof,
including (without limitation) the mutual indemnifications therein. To the
extent of any conflict between the terms hereof and thereof, the terms of the
Agreement shall be controlling. All capitalized terms not otherwise defined
herein shall have the meanings ascribed to them in the Agreement unless the
context clearly requires otherwise.
[SIGNATURE PAGE ATTACHED]
Page 53 of 55
<PAGE>
IN WITNESS WHEREOF, the parties have duly executed this Assignment and
Assumption Agreement as of this 10th day of October, 1996, to be effective as of
12:01 a.m. on the 14th day of October, 1996.
ASSIGNOR:
WILLIAM J. BANNEN, JR., M.D., F.A.A.F.P, A.M.E., P.A.
By: /s/ William J. Bannen, Jr., M.D., P.A.
Its: President
/s/ William J. Bannen, Jr., M.D.
WILLIAM J. BANNEN, JR., M.D.
ASSIGNEE:
UCI MEDICAL AFFILIATES OF SOUTH CAROLINA, INC.
By: /s/ Stephen S. Seeling
Its: Chief Operating Officer and Counsel
Page 54 of 55
<PAGE>
SCHEDULE 1
Liabilities To Be Assumed
That certain computer lease by and between William J. Bannen, Jr., M.D. and
Eaton Financial Corporation dated on or about July 6, 1992. William J. Bannen,
Jr., M.D. shall be responsible for obtaining the consents, if any, necessary to
assign such lease.
Page 55 of 55
