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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 1, 1996
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UCI Medical Affiliates, Inc.
(Exact name of registrant as specified in its charter)
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Delaware 0-13265 59-2225346
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(State or other jurisdiction of incorporation) (Commission File Number) (IRS Employer Identification No.)
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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
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No Change (Former name or former address, if changed since last report.)
This document contains a total of 64 pages and the Exhibit Index is set forth on
sequentially numbered page 4 .
PAGE 1 of 64
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ITEM 2. ACQUISITION OR DISPOSITION OF ASSETS
Pursuant to the terms of an Asset Purchase Agreement dated and executed on
September 30, 1996, to be effective as of October 1, 1996 by and between H.A.
Langston, Jr., M.D., P.A., a South Carolina professional corporation ("Seller")
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 Aiken, South Carolina for a purchase price of $80,000,
paid $10,000 at closing and the remainder in twenty-four (24) equal 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 - Aiken".
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
September 30, 1996, to be effective as of October 1, 1996 by and
between H.A. Langston, Jr., M.D., P.A. and UCI Medical Affiliates
of South Carolina, Inc.
PAGE 2 of 64
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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 11, 1996
PAGE 3 of 64
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UCI MEDICAL AFFILIATES, INC.
EXHIBIT INDEX
TO
FORM 8-K
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EXHIBIT PAGE
NUMBER DESCRIPTION NUMBER
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2.1 Asset Purchase Agreement dated and executed September 30, 6
1996, to be effective as of October 1, 1996 by and between
H.A. Langston, Jr., M.D., P.A. and UCI Medical Affiliates
of South Carolina, Inc.
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PAGE 4 of 64
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EXHIBIT NO. 2.1
ASSET PURCHASE AGREEMENT
PAGE 5 of 64
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ASSET PURCHASE AGREEMENT
This Asset Purchase Agreement ("Agreement") is made as of the 30th day of
September, 1996, to be effective as of the 1st day of October, 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"); H. A. Langston, Jr.. M.D.,
P.A, a South Carolina professional corporation ("Seller"); and Henry A.
Langston, Jr., M.D. ("Shareholder").
INTRODUCTION. Seller owns and operates a medical practice located at 209
Abbeville Avenue, N.W., Aiken, South Carolina 29801 ("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 1, 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.
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 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.
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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.
3.1 Purchase Price. The purchase price ("Purchase Price") for the Assets to
be acquired by UCI of SC shall be Eighty Thousand and No/100 ($80,000.00)
Dollars payable to Seller as follows:
(1) The sum of Ten Thousand and No/100 ($10,000.00) Dollars
shall be paid to Seller at Closing (as defined below).
(2) The sum of Seventy Thousand and No/100 ($70,000.00) Dollars
shall be due and payable in twenty-four (24) equal monthly
installments, with the first payment due on or before November 1,
1996, 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 to be effective as of October 1, 1996 (the "Closing") shall
take place on September 30, 1996, commencing at 2:30 p.m. (local time), at the
offices of Henderson & Salley, 111 Park Avenue, S.W., Aiken, 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 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.
4.2.2 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..
PAGE 7 of 64
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4.2.3 Seller and UCI of SC shall each execute and deliver to the
other a Lease for the Premises substantially in the form of Exhibit E
attached hereto (the "Lease").
4.2.4 Shareholder and Doctor's Care shall each execute and deliver
to the other the employment agreement substantially in the form of Exhibit
F attached hereto (the "Employment Agreement").
4.2.5 Shareholder shall execute and deliver to UCI of SC a
non-competition covenant substantially in the form of Exhibit G attached
hereto (the "Non-Compete").
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 H 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
I to UCI of SC.
4.3.3 [Intentionally Left Blank.]
4.3.4 The Lease substantially in the form attached hereto as
Exhibit E to UCI of SC.
4.3.5 The Employment Agreement substantially in the form attached
hereto as Exhibit F to Doctor's Care.
4.3.6 A Non-Compete executed by Shareholder in the form attached
hereto as Exhibit G to UCI of SC.
4.3.7 Seller shall deliver to UCI of SC a Certificate of Existence
issued by the South Carolina Secretary of State.
4.3.8 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.
4.3.9 Copy of all current data, contracts and information for the
Business.
4.3.10 Certified Resolutions of the directors and shareholders of
Seller authorizing the transaction contemplated herein.
PAGE 8 of 64
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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 will deliver a certificate evidencing the Shares, or if
such certificate is not available, a copy of the instructions which UCI
will forward to its transfer agent instructing such agent to issue a
certificate evidencing the Shares to Seller.
4.4.2 Doctor's Care will deliver the Employment Agreement
substantially in the form attached hereto as Exhibit F.
4.4.3 UCI of SC will deliver the Note substantially in the form
attached hereto as Exhibit C.
4.4.4 UCI of SC will deliver a security agreement in the form
attached hereto as Exhibit D (the "Security Agreement").
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 prorated as provided in this Agreement).
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 Restrictions Against Competition. For a period of three (3)
years after Closing, Seller shall not own, operate, or establish, in
competition with UCI of SC or Doctor's Care, an urgent care, family care,
or industrial and occupational medical business within a fifteen (15) mile
radius of the Premises, the location of the Business conducted with the
Assets acquired by UCI of SC hereunder. Seller acknowledges and agrees that
this restriction is reasonably related to the value of the Assets sold to
UCI of SC and Doctor's Care hereunder and that the scope of this
restriction is reasonable in time and territory.
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.
PAGE 9 of 64
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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 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.
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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 January 1995, 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.
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.
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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.
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,
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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. 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.
PAGE 13 of 64
<PAGE>
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.
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, Note,
Lease, Employment Agreement, or any other instruments ancillary hereto in the
event Seller and/or Shareholder breaches this Agreement or any document related
thereto or
PAGE 14 of 64
<PAGE>
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, Note, Lease, Employment
Agreement, 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 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.
PAGE 15 of 64
<PAGE>
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.
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: H.A. Langston, Jr., M.D., P.A.
355 West Road
Box 10
Montmorenci, SC 29839
Attn: Henry A. Langston, Jr., MD
Shareholder: Henry A. Langston, Jr., MD
355 West Road
Box 10
Montmorenci, SC 29839
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
PAGE 16 of 64
<PAGE>
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 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.
12.14 Representation of Counsel. The parties hereto acknowledge that the
firm of Nexsen Pruet Jacobs & Pollard, LLP, in connection with the transaction
described herein, has served as legal counsel to UCI, UCI of SC, and Doctor's
Care and no other party to this Agreement. The parties hereto acknowledge that
the firm of Henderson & Salley, in connection with the transaction described
herein, has served as legal counsel to Seller and Shareholder and no other party
to this Agreement.
[SIGNATURE PAGE ATTACHED]
PAGE 17 of 64
<PAGE>
IN WITNESS WHEREOF, the parties have executed this Asset Purchase Agreement
under seal on September 30, 1996, to be effective as of October 1, 1996, with
the corporate parties acting by and through their duly authorized officers,
effective as of the date first above written.
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: Chief Operating Officer and Counsel Its: Chief Operating Officer and
Counsel
DOCTOR'S CARE: SELLER:
DOCTOR'S CARE, P.A. H. A. LANGSTON, JR., M.D., P.A.
By: /s/ Stephen S. Seeling By: /s/ H.A. Langston, Jr.
Its: Secretary Its: President
SHAREHOLDER:
/s/ H.A. Langston, Jr.
Henry A. Langston, Jr., M.D.
PAGE 18 of 64
<PAGE>
EXHIBIT A
LIST OF ASSETS
<TABLE>
<CAPTION>
ROOM 1 TOTAL VALUE
------------------------------------------------------------------------- -----------------
<S> <C>
1 Metal Exam Table w/stirrups $150.00
1 Desk 50.00
2 Chairs 40.00
1 Stool 25.00
1 Small Metal Table 30.00
1 Gooseneck Floor Lamp 15.00
1 Hyfrecator 75.00
1 Electrimatic Otoscope 30.00
1 6 Place Outlet 5.00
1 Garbage Can 10.00
2 Glass Jars w/lids 10.00
1 Utility Forcep 9-1/2" str 5.00
1 Enamel Forcep Holder 5.00
1 Emesis Basin 3.00
1 Small Glass Jar w/lid 3.00
1 Stainless Instrument Tray 8.00
1 Bandage Scissors, Lrg 3.00
4 Adson Forceps w/teeth 16.00
1 Stitch Scissors Med. 5.00
1 Str. Sharp Utility Scissors 4.00
1 Str. Blunt Ear Currette, Size 5 4.00
1 Angle Blunt Ear Currette, Size 00 4.00
1 Mertiolate Canister 2.00
ROOM 1 TOTAL $502.00
PAGE 19 of 64
<PAGE>
SURGERY ROOM TOTAL VALUE
------------------------------------------------------------------------- -----------------
1 Wa Floor Exam Lamp, Halogen $100.00
1 Wooden Treatment Table w/pillow and shelf 150.00
1 Chair 20.00
1 Gooseneck Lamp 15.00
1 Fluorescent Magnifier Lamp 75.00
1 Enamel Forcep Jar 5.00
1 Utility Forcep 5.00
2 Labeled Appl. Jars w/lid 10.00
1 Metal Utility Cabinet 175.00
7 Stainless Instrument Trays 56.00
1 Small Appl. Jar w/lid 3.00
1 Med. Bandage Scissors 3.00
2 Dressing Forceps Serrated 4.00
1 Adson Serrated Forcep 2.00
4 Dressing Forceps, 1x2 teeth 12.00
4 Dressing Forceps, 2x3 teeth 12.00
5 Small or scissors 20.00
2 Deaver Scissors, 5-1/2" 10.00
2 Curved or Scissors 10.00
2 Scalpel Handles 5.00
2 Mosquito Forceps 8.00
3 Medicine Cups, Glass 1 oz. 3.00
6 Curved Kelly-Murphy Forceps 30.00
9 Needle Holders 63.00
5 Str. Medium Tonsil Forceps 35.00
1 Chalazion Forceps 12.00
1 Retractor, 3 prong sharp 10.00
-----------------
SURGERY ROOM TOTAL $853.00
LAB
1 Spencer Microscope $300.00
1 Castle Autoclave 350.00
1 Pelton Crane Autoclave 500.00
1 Dextrometer 25.00
1 Empire Syringe, 2 oz. 10.00
1 Small Enamel Basin 5.00
1 Wall Mirror w/soap and towel dispenser 15.00
1 Wizard Citation Refrigerator 75.00
1 Hemoglobinometer 50.00
3 Autolet II 30.00
2 Applicator Jars 10.00
1 Physicians Office Scale 50.00
-----------------
LAB ROOM TOTAL $1,420.00
PAGE 20 of 64
<PAGE>
ROOM 2 TOTAL VALUE
------------------------------------------------------------------------- -----------------
1 Metal Exam table w/stirrups $150.00
1 Desk 50.00
2 Chairs 50.00
1 Metal Folding Table 30.00
1 Gooseneck Lamp 15.00
1 6 Place Outlet 5.00
1 Hyfrecator 75.00
1 Percussion Hammer 2.00
1 Tycos BP Unit 40.00
3 Large Glass Labeled Appl. Jars 15.00
1 Stainless Instrument Tray 8.00
1 Enamel Emesis Basin 3.00
1 Glass Thermometer Holder 2.00
1 Single Head Stethoscope 5.00
1 Towel Clamp 10.00
1 Straight Probe 5.00
1 Str. Utility Forcep 9-1/2" 5.00
1 Enamel Forcep Jar 5.00
1 Small Glass Applicator Jar 3.00
1 Medium Stitch Scissors 5.00
1 Str. Or Scissors 5.00
6 Adson Forceps w/teeth 24.00
1 Plastic Garbage Can 3.00
1 Exam Stool 25.00
-----------------
ROOM 2 TOTAL $540.00
BATH BETWEEN ROOMS 1 AND 2
1 Plastic Garbage Can $3.00
1 Small Table 15.00
1 Wall Mirror 10.00
-----------------
BATH TOTAL $28.00
PAGE 21 of 64
<PAGE>
ROOM 3 TOTAL VALUE
------------------------------------------------------------------------- -----------------
1 HME Magnatherm Machine $500.00
1 Desk 50.00
3 Chairs 65.00
1 Small Foot Stool 10.00
1 Wooden Exam Table 100.00
1 Wall Mirror 10.00
1 Glass Applicator Jar w/lid 5.00
1 Glass Thermometer Jar 2.00
1 Plastic Applicator Jar 2.00
1 Laryngeal Mirror w/handle 5.00
1 Wall Mirror w/soap and towel dispenser 15.00
1 Tyco BP Unit 40.00
1 Single Head Stethoscope 5.00
1 Burdick EK5A EKG Unit 400.00
1 Enamel Instrument Tray 20.00
1 Manual Resuscitator w/02 Tubing & Connector 50.00
1 Box Large Acupuncture Needles 50.00
1 Box Small Acupuncture Needles 50.00
1 Small Percussion Hammer 2.00
-----------------
ROOM 3 TOTAL $1,381.00
ROOM 4
1 Desk $50.00
2 Chairs 45.00
1 Wooden Exam Table 100.00
1 Small Garbage Can 10.00
1 Detecto Baby Scales 50.00
1 Small Wooden Table 30.00
1 Ped. Tycos BP Unit 40.00
1 Dual Head Ped. Stethoscope 5.00
1 Wall Mirror w/soap and towel dispenser 15.00
1 Wooden Toy/Book Shelf 25.00
-----------------
ROOM 4 TOTAL $370.00
TOTAL VALUATION $5,094.00
=================
</TABLE>
PAGE 22 of 64
<PAGE>
EXHIBIT B
BILL OF SALE
(Medical Records)
KNOW ALL MEN BY THESE PRESENTS, that H.A. LANGSTON, JR., M.D., P.A, a
South Carolina professional corporation with offices at 209 Abbeville Avenue,
N.W., Aiken, South Carolina 29801 (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 209 Abbeville
Avenue, N.W., Aiken, South Carolina 29801.
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
September 30, 1996 to be effective as of the 1st day of October, 1996.
WITNESSES: H. A. LANGSTON, JR., M.D., P.A. (SEAL)
/s/ Julian B. Salley, Jr. By: /s/ H.A. Langston, Jr.
Its: President
/s/ Mary Ann Langston
PAGE 23 of 64
<PAGE>
EXHIBIT C
PROMISSORY NOTE
$70,000.00 Columbia, S.C.
Subject to Set Off October 1, 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 H. A. Langston, Jr.,
M.D., P.A., a South Carolina professional association (the "Lender"), the
principal sum of Seventy Thousand and No/100 ($70,000.00) 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 eight and one-quarter (8.25%) 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 Three Thousand One Hundred Seventy-Three
and 90/100 ($3,173.90) Dollars shall be due and payable commencing on November
1, 1996, and continuing thereafter on the first (1st) day of each month for the
succeeding twenty-three (23) consecutive months. Payments hereunder shall be
made to the Lender at 355 West Road, Box 10, Montmorenci, South Carolina 29839,
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 Henry A. Langston, Jr., M.D. ("Langston")
breaches that certain Asset Purchase Agreement dated effective as of October 1,
1996, by and among Borrower, Lender, UCI Medical Affiliates, Inc., and Langston
or any document ancillary thereto (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 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 and 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 twenty (20) 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.
In the event this Note is placed in the hands of an attorney for
collection (but not for resolution of any disputes on a set off or recoupment of
the amount due hereunder), all expenses of the Lender, including reasonable
attorneys' fees, shall be added to the principal amount of this Note and
collected as a part hereof. This Note shall be governed by and construed in
accordance with the laws of the State of South Carolina.
PAGE 24 of 64
<PAGE>
Jurisdiction and venue for the enforcement of this Note shall be exclusively in
the courts for the State of South Carolina.
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.
The Borrower reserves the right to prepay this Note in whole or in part
at any time without fee or penalty; provided, however, that any partial payment
shall be applied first to accrued interest and then to the reduction of the
principal.
EXECUTED as of this 1st 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 25 of 64
<PAGE>
EXHIBIT D
STATE OF SOUTH CAROLINA )
) SECURITY AGREEMENT
COUNTY OF AIKEN )
THIS SECURITY AGREEMENT is made and given effective as of the 1st day
of October, 1996, by UCI MEDICAL AFFILIATES OF SOUTH CAROLINA, INC., a South
Carolina corporation, and DOCTOR'S CARE, P.A., a South Carolina professional
corporation (hereinafter called "Owners"), to H. A. LANGSTON, JR., M.D., P.A., a
South Carolina professional corporation (hereinafter called the "Secured
Party"), pursuant to that certain Asset Purchase Agreement dated as of the date
hereof, by and among others UCI MEDICAL AFFILIATES OF SOUTH CAROLINA, INC.; UCI
MEDICAL AFFILIATES, INC.; DOCTOR'S CARE, P.A.; and the Secured Party (the
"Agreement"). Pursuant to the Agreement, and for value received, the Owners
hereby grant to Secured Party a security interest, in accordance with the terms
and conditions hereinafter set forth, in the following described property
(hereinafter called "Collateral"):
(1) The Assets set forth in Section 1 of the Agreement,
more fully defined in Schedule 1 attached hereto; and
(2) The medical records set forth in Section 2 of the
Agreement, more fully described in Schedule 2
attached hereto
to secure the payment of the indebtedness evidenced by that certain secured
Promissory Note (the "Note") in the original principal amount of Seventy
Thousand No/100 ($70,000.00) Dollars executed by UCI Medical Affiliates of South
Carolina, Inc. simultaneously herewith and payable to the Secured Party, and any
extensions or renewals thereof.
OWNERS REPRESENT, WARRANT AND AGREE THAT:
1. The Collateral is used by Owners for a medical facility.
2. The Owners shall do all acts that may be necessary to maintain, preserve
and protect the Collateral.
3. Owners will maintain the Collateral in the condition received from Secured
Party, will not waste or destroy the Collateral or any part thereof, will
not use the Collateral in violation of any applicable law or policy of
insurance and will promptly pay when due all taxes and assessments upon
the Collateral or its operation or use.
4. Owners will keep the Collateral insured until this Security Agreement is
terminated with hazard coverage against all reasonable expected risk to
which it is exposed including fire, theft, accident and physical damage in
such amounts and with an insurance company as shall be reasonably
acceptable to Secured Party. Secured Party shall be provided with
continuing evidence of such insurance.
Notwithstanding anything contained herein to the contrary, nothing contained
herein shall be interpreted in any way to hinder, restrict or in any way
preclude the Owners' relocating, leasing, selling or renting, in whole or in
part, the Collateral in the regular course of Owners' business. Furthermore such
relocation, sale, lease, or rental shall not be deemed, in any way, to
constitute a Default hereunder.
THE PARTIES FURTHER AGREE THAT:
1. At its option, and without any obligation to do so, Secured Party may
discharge taxes, liens, or other encumbrances at any time levied or place
on the Collateral, pay for insurance on the Collateral, and pay for the
maintenance and preservation of the Collateral should Owners fail to do so.
Owners agree to
PAGE 26 of 64
<PAGE>
reimburse Secured Party on demand for any payments so made and until such
reimbursement the amount so paid by Secured Party shall be added to the
principal amount of the indebtedness secured by this Security Agreement.
2. At the request of Secured Party, Owners will join with Secured Party in
executing one or more financing statements or other documents in form
satisfactory to Secured Party in order to perfect and protect any security
interest granted hereby for filing the same in all public offices wherever
filing or recording is deemed by Secured Party to be necessary or
desirable.
EVENT OF DEFAULT:
Owners shall be in default under this Security Agreement upon breach by
Owners of any obligation imposed by this Security Agreement or the Note and the
failure of the Owners to correct such breach within thirty (30) days of receipt
of written notice of the breach from the Secured Party.
REMEDIES OF SECURED PARTY UPON DEFAULT:
Upon default, Secured Party shall have all of the rights and remedies
of a Secured Party under the Uniform Commercial Code in force in this state at
the date hereof and, in addition, the following rights and remedies:
1. Secured Party may peaceably, by its own means or with judicial assistance,
enter Owners' premises and take possession of the Collateral, or render it
unusable, or dispose of the Collateral on Owners' premises, and Owners will
not resist or interfere with such action.
2. Secured Party may require Owners to assemble all or any part of the
Collateral and make it available to Secured Party at any place reasonably
convenient and designated in a notice sent to Owners.
ADDITIONAL PROVISIONS:
1. No failure on the part of Secured Party to exercise and no delay in
exercising any right or remedy hereunder shall operate as a waiver hereof
nor shall any single or partial exercise by Secured Party of any right or
remedy hereunder preclude any other or future exercise hereof or the
exercise of any other right or remedy.
2. All rights of Secured Party hereunder shall inure to the benefit of its
successors and assigns and all obligations of Owners shall bind their
successors, executors or administrators, or his or its successors or
assigns.
3. Any notice required to be given may be given by mailing such notice,
postage prepaid, to the following addresses:
OWNERS 1901 Main Street, Suite 1200
Mail Code 1105
Columbia, SC 29201
Attn: Stephen S. Seeling, Esquire
SECURED PARTY H. A. Langston, Jr., M.D., P.A.
355 West Road
Box 10
Montmorenci, SC 29839
Attn: Henry A. Langston, Jr., M.D.
PAGE 27 of 64
<PAGE>
4. This Security Agreement may not be changed orally but only by an agreement
in writing and signed by the party against whom enforcement of any waiver,
change, modification, or discharge is sought.
5. This Security Agreement and the rights and obligations to the parties
hereunder shall be construed and interpreted in accordance with the laws of
the State of South Carolina in force at the date of this Agreement. In the
event of any inconsistency between the terms hereof and the terms of the
Agreement, the terms of the Agreement shall be controlling.
[SIGNATURE PAGE ATTACHED]
PAGE 28 of 64
<PAGE>
IN WITNESS THEREOF, the parties hereto have caused these presents to be
executed effective as of the day and year first above written.
WITNESSES: OWNERS:
UCI MEDICAL AFFILIATES OF
SOUTH CAROLINA, INC., a South
Carolina corporation
/s/ Julian B. Salley, Jr. By: /s/ Stephen S. Seeling
Its: Chief Operating Officer and Counsel
/s/ Mary Ann Langston
DOCTOR'S CARE, P.A., a South Carolina
professional corporation
/s/ Julian B. Salley, Jr. By: /s/ Stephen S. Seeling
Its: Secretary
/s/ Mary Ann Langston
SECURED PARTY:
H. A. LANGSTON, JR., M.D., P.A., a South
Carolina professional corporation
/s/ Julian B. Salley, Jr. By: /s/ H.A. Langston, Jr.
Its: President
/s/ Mary Ann Langston
PAGE 29 of 64
<PAGE>
SCHEDULE 1
LIST OF ASSETS
<TABLE>
<CAPTION>
ROOM 1 TOTAL VALUE
------------------------------------------------------------------------- -----------------
<S> <C>
1 Metal Exam Table w/stirrups $150.00
1 Desk 50.00
2 Chairs 40.00
1 Stool 25.00
1 Small Metal Table 30.00
1 Gooseneck Floor Lamp 15.00
1 Hyfrecator 75.00
1 Electrimatic Otoscope 30.00
1 6 Place Outlet 5.00
1 Garbage Can 10.00
2 Glass Jars w/lids 10.00
1 Utility Forcep 9-1/2" str 5.00
1 Enamel Forcep Holder 5.00
1 Emesis Basin 3.00
1 Small Glass Jar w/lid 3.00
1 Stainless Instrument Tray 8.00
1 Bandage Scissors, Lrg 3.00
4 Adson Forceps w/teeth 16.00
1 Stitch Scissors Med. 5.00
1 Str. Sharp Utility Scissors 4.00
1 Str. Blunt Ear Currette, Size 5 4.00
1 Angle Blunt Ear Currette, Size 00 4.00
1 Mertiolate Canister 2.00
ROOM 1 TOTAL $502.00
PAGE 30 of 64
<PAGE>
SURGERY ROOM TOTAL VALUE
------------------------------------------------------------------------- -----------------
1 Wa Floor Exam Lamp, Halogen $100.00
1 Wooden Treatment Table w/pillow and shelf 150.00
1 Chair 20.00
1 Gooseneck Lamp 15.00
1 Fluorescent Magnifier Lamp 75.00
1 Enamel Forcep Jar 5.00
1 Utility Forcep 5.00
2 Labeled Appl. Jars w/lid 10.00
1 Metal Utility Cabinet 175.00
7 Stainless Instrument Trays 56.00
1 Small Appl. Jar w/lid 3.00
1 Med. Bandage Scissors 3.00
2 Dressing Forceps Serrated 4.00
1 Adson Serrated Forcep 2.00
4 Dressing Forceps, 1x2 teeth 12.00
4 Dressing Forceps, 2x3 teeth 12.00
5 Small or scissors 20.00
2 Deaver Scissors, 5-1/2" 10.00
2 Curved or Scissors 10.00
2 Scalpel Handles 5.00
2 Mosquito Forceps 8.00
3 Medicine Cups, Glass 1 oz. 3.00
6 Curved Kelly-Murphy Forceps 30.00
9 Needle Holders 63.00
5 Str. Medium Tonsil Forceps 35.00
1 Chalazion Forceps 12.00
1 Retractor, 3 prong sharp 10.00
-----------------
SURGERY ROOM TOTAL $853.00
LAB
1 Spencer Microscope $300.00
1 Castle Autoclave 350.00
1 Pelton Crane Autoclave 500.00
1 Dextrometer 25.00
1 Empire Syringe, 2 oz. 10.00
1 Small Enamel Basin 5.00
1 Wall Mirror w/soap and towel dispenser 15.00
1 Wizard Citation Refrigerator 75.00
1 Hemoglobinometer 50.00
3 Autolet II 30.00
2 Applicator Jars 10.00
1 Physicians Office Scale 50.00
-----------------
LAB ROOM TOTAL $1,420.00
PAGE 31 of 64
<PAGE>
ROOM 2 TOTAL VALUE
------------------------------------------------------------------------- -----------------
1 Metal Exam table w/stirrups $150.00
1 Desk 50.00
2 Chairs 50.00
1 Metal Folding Table 30.00
1 Gooseneck Lamp 15.00
1 6 Place Outlet 5.00
1 Hyfrecator 75.00
1 Percussion Hammer 2.00
1 Tycos BP Unit 40.00
3 Large Glass Labeled Appl. Jars 15.00
1 Stainless Instrument Tray 8.00
1 Enamel Emesis Basin 3.00
1 Glass Thermometer Holder 2.00
1 Single Head Stethoscope 5.00
1 Towel Clamp 10.00
1 Straight Probe 5.00
1 Str. Utility Forcep 9-1/2" 5.00
1 Enamel Forcep Jar 5.00
1 Small Glass Applicator Jar 3.00
1 Medium Stitch Scissors 5.00
1 Str. Or Scissors 5.00
6 Adson Forceps w/teeth 24.00
1 Plastic Garbage Can 3.00
1 Exam Stool 25.00
-----------------
ROOM 2 TOTAL $540.00
BATH BETWEEN ROOMS 1 AND 2
1 Plastic Garbage Can $3.00
1 Small Table 15.00
1 Wall Mirror 10.00
-----------------
BATH TOTAL $28.00
PAGE 32 of 64
<PAGE>
ROOM 3 TOTAL VALUE
------------------------------------------------------------------------- -----------------
1 HME Magnatherm Machine $500.00
1 Desk 50.00
3 Chairs 65.00
1 Small Foot Stool 10.00
1 Wooden Exam Table 100.00
1 Wall Mirror 10.00
1 Glass Applicator Jar w/lid 5.00
1 Glass Thermometer Jar 2.00
1 Plastic Applicator Jar 2.00
1 Laryngeal Mirror w/handle 5.00
1 Wall Mirror w/soap and towel dispenser 15.00
1 Tyco BP Unit 40.00
1 Single Head Stethoscope 5.00
1 Burdick EK5A EKG Unit 400.00
1 Enamel Instrument Tray 20.00
1 Manual Resuscitator w/02 Tubing & Connector 50.00
1 Box Large Acupuncture Needles 50.00
1 Box Small Acupuncture Needles 50.00
1 Small Percussion Hammer 2.00
-----------------
ROOM 3 TOTAL $1,381.00
ROOM 4
1 Desk $50.00
2 Chairs 45.00
1 Wooden Exam Table 100.00
1 Small Garbage Can 10.00
1 Detecto Baby Scales 50.00
1 Small Wooden Table 30.00
1 Ped. Tycos BP Unit 40.00
1 Dual Head Ped. Stethoscope 5.00
1 Wall Mirror w/soap and towel dispenser 15.00
1 Wooden Toy/Book Shelf 25.00
-----------------
ROOM 4 TOTAL $370.00
TOTAL VALUATION $5,094.00
=================
</TABLE>
PAGE 33 of 64
<PAGE>
SCHEDULE 2
LIST OF PATIENT RECORDS
The listing of patient records can be found in the corporate office of UCI
Medical Affiliates, Inc.
PAGE 34 of 64
<PAGE>
EXHIBIT E
STATE OF SOUTH CAROLINA ) LEASE AND OPTION
) AGREEMENT AND
COUNTY OF AIKEN ) RIGHT OF FIRST REFUSAL
THIS LEASE AND OPTION AGREEMENT AND RIGHT OF FIRST REFUSAL (the
"Lease") is made on September 30, 1996 to be effective as of this 1st day of
October, 1996, by and between HENRY A. LANGSTON, JR., M.D., a South Carolina
resident (the "Landlord"), and UCI MEDICAL AFFILIATES OF SOUTH CAROLINA, INC., a
South Carolina corporation (the "Tenant").
This Lease is executed and delivered in connection with that certain
Asset Purchase Agreement by and among Landlord, Tenant, UCI Medical Affiliates,
Inc., Doctor's Care, P.A., and H. A. Langston, Jr., M.D., P.A. dated effective
as of October 1, 1996 (the "Purchase Agreement") related to the purchase of
certain assets of Landlord by Tenant.
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 hereby leases, demises, and lets, to Tenant, and
Tenant hereby leases from Landlord, that certain premises and all
improvements thereon located at 209 Abbeville Avenue, N.W., Aiken, South
Carolina 29801, all as more fully described on Schedule 1 attached hereto
(collectively the "Premises"), upon the terms, covenants, and conditions
hereinafter contained.
2. Term. The term of this Lease shall be five (5) years commencing on
October 1, 1996, and terminating on September 30, 2001.
3. Rent. Subject to Section 20 herein, the Tenant shall pay to the Landlord an
annual rental of Eighteen Thousand and No/100 ($18,000.00) Dollars, in
monthly installments of One Thousand Five Hundred and No/100 ($1,500.00)
Dollars, on the first (1st) day of each month, payable in advance during
the term of this Lease in lawful money of the United States, addressed to
Landlord at Landlord's address set forth in Section 43 herein.
4. Utilities. Tenant shall pay throughout the term of this Lease, 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 term of
this Lease. Such items shall be prorated for periods outstanding at the
commencement or the termination of this Lease. Tenant shall make such
payments directly to the intended recipient thereof. Upon receipt of the
actual bill for such period, the party receiving such bill shall promptly
forward same to the other party and Landlord and Tenant shall then make
such adjustment and payment as shall be required to make such proration
accurate.
5. Real Estate Taxes. Landlord shall promptly pay all taxes and assessments of
every kind or nature which are now or may hereafter be imposed or assessed
upon the Premises by federal, state, or local government authority. Tenant
shall be entitled, but shall have no obligation, to pay any taxes or
assessments not promptly paid by Landlord as required above, in which case
Tenant may elect that the amount of such payment be either (i) deducted by
Tenant from the rent hereunder after notice of such payment is given by
Tenant to Landlord, or (ii) reimbursed to Tenant by Landlord within ten
(10) days after notice of such payment is given by Tenant to Landlord.
PAGE 35 of 64
<PAGE>
6. Insurance on Building. Landlord shall at all times during the term of this
Lease maintain and shall pay all premiums for the fire and hazard insurance
on the building constituting a portion of the Premises for not less than
the replacement cost thereof.
7. Other Insurance Coverage. Tenant shall at all times maintain the following
insurance coverage respecting the Premises and its business operations
thereon: 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. Landlord shall, at his own expense, keep the
Premises in good repair and shall make all necessary repairs and
replacements to the Premises. Such repairs and replacements shall be made
within a reasonable time after written notice from Tenant. On default of
Landlord in making such repairs or replacements, or in the even such
repairs have not been commenced within thirty (30) days after written
notice to Landlord from Tenant, Tenant may, but shall not be required to,
make such repairs and replacements for Tenant's account, in which case
Tenant may elect that the amount of such repair be either (i) deducted by
Tenant from the rent hereunder after notice of such repair is given by
Tenant to Landlord, or (ii) reimbursed to Tenant by Landlord within ten
(10) days after notice of such repair is given by Tenant to Landlord.
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 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 and its
officers and agents 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 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 Premise 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 Premises (both structural and
non-structural) that may be necessary from time to time to keep or bring
the 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 written notice to Tenant.
13. Signs and Parking. Tenant shall have the exclusive right to use the parking
area which is part of the Premises. Tenant, at its discretion, may erect
such signs as it deems necessary or appropriate, 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.
PAGE 36 of 64
<PAGE>
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 expiration of a period of sixty (60) days following (I) the
adjudication of Tenant as a bankrupt by any court of competent
jurisdiction, (II) the entry of an order approving a petition
filed by one other than Tenant, seeking reorganization of Tenant
under the National Bankruptcy Act or any other applicable law of
the United States or of any State, or (III) the appointment of a
trustee or receiver of all or substantially all of the business of
property of Tenant, or (IV) the levy of any attachments, execution
or garnishment upon the interest of Tenant hereunder, or upon the
leasehold estate hereby created, unless during such period such
adjudication, order or appointment of a receiver or trustee,
attachment, execution or garnishment shall be vacated or unless
within such period Tenant shall have taken proper action to vacate
such adjudication, order or appointment of a receiver or trustee,
attachment, execution or garnishment, and in such event such
occurrence shall not constitute a breach of this Lease until final
adjudication of the matter.
C. The filing by Tenant of a voluntary petition in bankruptcy or the
making of an assignment for the benefit of creditors; the
consenting by Tenant to the appointment of a receiver or trustee
of all or any part of its property, the filing by Tenant of a
petition or answer seeking reorganization under the National
Bankruptcy Act or any other applicable law, or the filing by
Tenant of a petition to take advantage of any insolvency act.
D. The failure of Tenant to correct any default hereunder, other than
those specified in subdivisions (A), (B), and (C) 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 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 Landlord shall
default in any of its obligations under this Lease and/or 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.
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 lease term.
18. Damage or Destruction. In case the Premises are so injured or damaged by
fire or other cause as to be untenantable, Landlord shall have the right,
at its option, within thirty (30) days, to repair and restore the Premises
to tenantable conditions, and the rent shall abate during the period said
Premises are
PAGE 37 of 64
<PAGE>
untenantable. Should said Premises not be restored within thirty (30) days
from the date of the fire or other cause rendering them untenantable,
either party thereto may terminate this Lease by giving the other party
written notice of its intention to do so not later than ninety (90) days
after the fire or other cause rendering the Premises untenantable.
19. 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.
20. 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.
21. 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 may be removed by Tenant, provided
Tenant shall otherwise leave the Premises in reasonable condition.
22. 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 Landlord or Langston breaches 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.
23. Subject to Purchase Agreement. This Lease is made, executed and delivered
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.
24. Representations and Warranties of Landlord. Landlord hereby warrants,
represents, and covenants as follows:
A. Organization and Good Standing. Landlord has taken all 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
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.
PAGE 38 of 64
<PAGE>
B. Title to Premises. Upon execution and delivery of this Lease,
Landlord will have good, marketable and insurable title to the
Premises, 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 for
which any such person or entity could claim a lien against the
Premises.
C. Consents. No consent of any third party is required in connection
with Landlord's lease of the Premises hereunder.
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,
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 for Tenant.
E. Zoning. To the best of Landlord's knowledge, the 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.
F. Environmental. To the best of Landlord's knowledge, the Premises
is not now used and have never been used for the underground
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.
25. 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.
PAGE 39 of 64
<PAGE>
26. Right of First Refusal. Landlord grants Tenant the right, at Tenant's
option, to purchase the Premises at the same price and upon the same terms
and conditions of any bona fide offer for the purchase thereof which
Landlord shall at any time during the term of this Lease be ready and
willing to accept. Landlord shall give Tenant written notice of all of the
terms and conditions of any such bona fide offer and Tenant shall have
twenty (20) days from and after the receipt of such notice in which to
exercise its option to purchase the Premises by giving written notice to
Landlord. Such exercise of said option to purchase the Premises shall
create a binding agreement between Landlord and Tenant for the sale and
purchase of the Premises upon the same terms and conditions contained in
the bona fide offer. The right granted to Tenant in this Section 26 shall
be continuing until the lawful termination of this Lease, and Tenant's
failure to exercise such right with respect to any bona fide offer shall
not affect its rights as to any subsequent offers received by Landlord or
Landlord's heirs, successors, assigns, or legal representatives. In the
event Tenant should fail to exercise its right to first refusal option in
any instance, Landlord shall then be free to sell the Premises in
accordance with the offer of the prospective purchaser (or to any other
purchasers upon substantially the same terms) and to convey the Premises to
such purchaser, subject to the terms and conditions of this Lease;
provided, however, that such sale must be consummated within ninety (90)
days after receipt by Tenant of written notice of the terms and conditions
of the offer. Tenant's rights under this Section may be assigned to any
person or entity controlling, controlled by, or under common control with,
Tenant. Tenant's failure to exercise its rights under this Section shall
not terminate this Lease nor extinguish Tenant's rights or obligations
under this Lease.
27. Option. During the term of this Lease, Landlord hereby grants to Tenant the
exclusive and irrevocable option (the "Option") to purchase the Premises
from Landlord subject to the following terms:
A. Price. On the exercise of the Option hereby granted, Tenant agrees
to pay to Landlord the purchase price in the amount equal to the
fair market value of the Premises as determined by a MAI certified
real estate appraiser selected by Tenant and approved by Landlord,
which approval shall not be unreasonably withheld.
B. Exercise of Option. During the term of this Lease, the Option
hereby granted may be exercised by notice delivered to Landlord as
required by this Lease. Tenant shall have the right, without
liability to Landlord, to withdraw any prior exercise of this
Option upon written notice to Landlord at any time before the
closing as set forth in Section 27(E) below.
D. Title. Upon the exercise by Tenant of this Option to purchase the
Premises, Landlord agrees to convey good, marketable, and
insurable title to the Premises free and clear of all liens and
encumbrances.
E. Closing. The sale contemplated by the Option will be consummated
at a closing to be held on the date specified by Tenant by notice
to Landlord at the offices of Nexsen Pruet Jacobs & Pollard, LLP,
Columbia, South Carolina, with the exact time of closing to be
designated by Tenant and approved by Landlord; provided however,
the date of closing shall be within forty-five (45) days after the
effective date of Tenant's notice to Landlord's of Tenant's
exercise of this Option
F. Landlord's Instruments. At closing, Landlord will deliver or cause
to be delivered to Tenant a general warranty deed covering the
Premises, and such additional documents as might be reasonably
requested by Tenant to consummate the purchase.
G. Tenant's Instruments. At closing, Tenant will deliver to Landlord
immediately available U.S. funds in the amount of the purchase
price of the Premises set forth in this Option and such additional
documents as might be reasonably requested by Landlord to
consummate the sale.
H. Closing Costs. Landlord will pay the cost of documentary stamps to
be affixed to the deed. Tenant will pay the following closing
costs: all abstracting costs and the costs of recording
PAGE 40 of 64
<PAGE>
the deed. Any state withholding taxes shall be deducted from the
closing proceeds to the extent required by law.
I. Specific Performance. The Parties shall be entitled to seek and
obtain specific performance of this Option or such other relief in
equity or at law as may be available.
J. Assignment By Tenant. The Option and the rights thereunder may be
assigned by Tenant upon notice to Landlord.
28. 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.
29. 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.
30. Days Defined. Any reference in this Lease to a number of days shall mean
calendar days unless otherwise expressly provided.
31. 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.
32. Headings. The headings of the paragraphs of this Lease are for convenience
or reference only and are not a part of this Lease.
33. 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.
34. 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.
35. 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.
36. 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.
37. Time of Essence. The parties acknowledge and agree that time is of the
essence in the performance of this Lease.
38. 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.
PAGE 41 of 64
<PAGE>
39. 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.
40. 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 County of Aiken, 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.
41. 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.
42. Recordation. This Lease or a memorandum hereof may be recorded by either
party. The parties agree to execute for recording purposes any such
memorandum.
43. 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) three (3)
business days after being duly deposited in the United States mail,
certified or registered, return receipt requested, and addressed as
follows:
Landlord: H.A. Langston, Jr., M.D.
355 West Road
Box 10
Montmorenci, SC 29839
Tenant: UCI Medical Affiliates of South Carolina, Inc.
1901 Main Street, Suite 1200
Columbia, SC 29201
Attn.: Stephen Seeling, Esquire
The parties hereto may change their respective addresses by notice in writing
given to the other party to this Lease.
PAGE 42 of 64
<PAGE>
IN WITNESS WHEREOF, the parties hereto have executed this Lease on
September 30, 1996, to be effective as of October 1, 1996.
IN THE PRESENCE OF: LANDLORD:
/s/ Julian B. Salley, Jr. /s/ H.A. Langston, Jr.
(Witness as to Landlord) HENRY A. LANGSTON, JR.
/s/ Mary Ann Langston
(Witness as to Landlord)
TENANT
UCI MEDICAL AFFILIATES OF SOUTH
CAROLINA, INC.
/s/ Julian B. Salley, Jr. By: /s/ Stephen S. Seeling
(Witness as to Tenant) Its: Chief Operating Officer and Counsel
/s/ Mary Ann Langston
(Witness as to Tenant)
PAGE 43 of 64
<PAGE>
STATE OF SOUTH CAROLINA )
) PROBATE
COUNTY OF RICHLAND )
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 LEFT BLANK , its LEFT BLANK , 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/ Mary Ann Langston
WITNESS
SWORN TO before me this
30th day of September, 1996.
/s/ Julian B. Salley, Jr. (L.S.)
Notary Public for South Carolina
My Commission Expires: November 14, 1999
STATE OF SOUTH CAROLINA )
) PROBATE
COUNTY OF RICHLAND )
PERSONALLY appeared before me the undersigned witness and made oath
that s/he saw the within-named Henry A. Langston, 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/ Mary Ann Langston
WITNESS
SWORN TO before me this 30th day of September, 1996.
/s/ Julian B. Salley, Jr. (L.S.)
Notary Public for South Carolina
My Commission Expires: November 14, 1999
PAGE 44 of 64
<PAGE>
SCHEDULE 1
Legal Description of the Premises
All that certain piece, parcel or lot of land, with improvements
thereon, situate, lying and being in the City and County of Aiken,
State of South Carolina, bounded and measuring as follows: On the NORTH
by Abbeville Avenue, and measuring thereon 140 feet; EAST by Newberry
Street, and measuring thereon, 140 feet; SOUTH by land, now or
formerly, of Ernest Burkhalter, and measuring thereon, 140 feet; and
WEST by lot, now or formerly of Estate of E. Holbrook Wyman, deceased,
and measuring thereon, 140 feet. Being the same premises conveyed unto
Neal R. Donovan and Marie L. Donovan by deed of R. D. Crawford and
Marilyn T. Crawford dated June 2, 1964, and recorded in Title Book 273,
at page 79, records of Aiken County.
PAGE 45 of 64
<PAGE>
EXHIBIT F
STATE OF SOUTH CAROLINA )
) EMPLOYMENT AGREEMENT
COUNTY OF AIKEN )
THIS AGREEMENT made and entered into effective as of this 1st day of
October, 1996, between Doctor's Care, P. A. (hereinafter "Employer"), a South
Carolina professional association with its principal office in Columbia, South
Carolina, and Henry A. Langston, Jr., M.D. (hereinafter "Employee").
WHEREAS, as of the date hereof, H.A. Langston, Jr., M.D., P.A., a South
Carolina professional corporation ("Seller"), sold substantially all Seller's
assets to UCI Medical Affiliates of South Carolina, Inc., a South Carolina
corporation ("UCI of SC"), pursuant to that certain Asset Purchase Agreement by
and among UCI of SC, Employer, Employee, and UCI Medical Affiliates, Inc., a
Delaware corporation (the "Purchase Agreement").
WHEREAS, Employee is the sole shareholder, officer and director of
Seller.
WHEREAS, UCI of SC has contracted with Employer to provide health care
services at medical facilities that are owned or leased by UCI of SC.
WHEREAS, Employer desires to employ the Employee to render medical
services for it on a part-time basis.
WHEREAS, Employee is a licensed physician in South Carolina and desires
and is willing to become an 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 Employee's employment hereunder shall be one (1) year
beginning on the date hereof. After the initial one (1) year term,
Employee's employment hereunder may only be renewed upon the written
consent of both parties hereto.
2. Duties.
A. Employee shall devote his professional skill and attention to the
performance of services for Employer. These duties shall include
providing medical services on behalf of Employer. The location of
Employee's primary worksite shall be 209 Abbeville Avenue, N.W.,
Aiken, South Carolina. Employee's work schedule, as determined by
Employer, shall average not less than twelve (12) hours per week,
nor more than thirty-two (32) hours per week, during the term of
this Agreement; provided however, Employee shall be scheduled to
work only during the hours of 2:00 p.m. and 5:00 p.m. on Mondays,
Tuesdays, Thursdays, or Fridays. Employee shall be provided with
two (2) weeks of unpaid vacation time calendar year, as well as
unpaid time off to attend Continuing Medical Education programs to
continue Employee's certification in AAFP. Such vacation days and
Continuing Medical Education days are to be take at such times or
times as Employee may reasonably request, subject to Employer's
convenience and prior approval, which approval shall not be
unreasonably withheld. Vacation time shall not cumulate year to
year.
B. 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,
PAGE 46 of 64
<PAGE>
Employer's professional reputation or that of any other employee
of Employer, or which might otherwise be detrimental to any
interest of Employer.
C. Employee hereby agrees that all fees received or collected as a
result of the services rendered by Employee hereunder, 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 Employer for Employee's services,
whether said fees are collected during Employee's employment or
after termination thereof.
3. Compensation. For all services rendered by Employee under this Agreement,
Employer shall pay the Employee the sum of fifty ($50.00) dollars per hour
payable in bi-weekly installments, unless otherwise requested by Employee
and approved by Employer. The above is intended to be the total
compensation paid to Employee for services rendered hereunder.
4. Facilities. Employer shall provide and pay for office space and facilities,
furniture, fixtures, equipment, supplies, employees and assistants
necessary and appropriate for the proper performance of the duties of
Employee. Employee shall provide Employee's malpractice insurance at
Employee's sole cost and expense. Evidence of such insurance shall be
provided to Employer from time to time upon the request of Employer.
5. Patients and Records. Employer and Employee agree that all patient lists,
records, and charts for patients treated by Employee hereunder 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 patient with which such terms are covered; provided however, that
record keeping for patients treated by Employee shall be the sole
responsibility of Employee, and Employee shall complete all such charts and
records for such patients in accordance with professional standards.
6. Policy Decisions. It is understood that Employer shall have the sole and
exclusive right of management over the Employer's practice, including
without limitation, the determination of the professional standards to be
observed, the determination of the fees to be charged, and the
determination of the office hours to be maintained; provided however, at no
time shall such professional standards be lower than those maintained by
the medical profession at large.
7. Conditions of Termination. Employee understands and agrees that cause for
termination of employment hereunder 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:
(i) 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 (ii) the
loss, suspension, or limitation of Employee's controlled substance
license, or (iii) 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 failure of Employee to provide
the agreed duties hereunder or willful violation by Employee of
any of the terms of this Agreement.
PAGE 47 of 64
<PAGE>
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, Employer, in its sole discretion,
may elect to terminate Employee's employment hereunder.
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.
8. Non-Disclosure of Information. Employee shall not, at any time after the
date hereof, directly or indirectly, divulge or disclose for any purpose
whatsoever any confidential information that has been developed or obtained
by, or disclosed to, Employee by Employer at any time or after the date
hereof (exclusive of such information as is in the public domain). Employee
acknowledges that such confidential information is of a special and unique
nature and value relating to matters of Employer's business, including,
without limitation, Employer's patents, copyrights, proprietary
information, trade secrets, trademarks, systems, procedures, manuals,
confidential reports, records, operational expertise, locations and lists
of clients and 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 patients, 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.
PAGE 48 of 64
<PAGE>
9. Covenants Against Competition.
A. Representations.
a) The parties hereto acknowledge that Employee has conducted
the business of Seller 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 Seller's medical 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 Seller's
medical 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 Seller medical
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.
b) 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. Patients. During the term of Employee's employment hereunder, and
for a period of three (3) years after the termination of
Employee's employment hereunder for any reason, 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 Patient (as
hereinafter defined), or (ii) solicit or divert (or assist another
person or entity to solicit or divert) any Patient (as hereinafter
defined) from purchasing or using any of UCI of SC's and/or
Employer's services. For purposes of this Section, the term
"Patient" shall mean any patient, client or customer of Employer
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: (i) providing urgent or emergency
medical services within the emergency room of any medical facility
licensed as a hospital in the State of South Carolina, or (ii)
providing emergency care to any Patient in a potentially
life-threatening situation, or (iii) providing medical services
directly or indirectly on behalf of Employer, or (iv) providing
medical services to inmates of behalf of the South Carolina
Department of Corrections.
C. Employees. In addition to (but not in limitation of) the
restrictions of Sections 9(B), during the term of Employee's
employment hereunder, and for a period of three (3) 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.
PAGE 49 of 64
<PAGE>
D. Non-Compete. During Employee's employment hereunder, and for a
period of three (3) years after the termination of Employee's
employment with Employer for any reason, 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) 2% 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 9(D) shall apply everywhere within a fifteen (10)
mile radius of Employer's facility located at 209 Abbeville Road,
N.W., Aiken, South Carolina.
E. 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, 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 9(E)(i) of this Agreement collectively own ten percent
(10%) 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 9(E)(i) of this Agreement are the beneficial
owners collectively of ten percent (10%) of any class of equity
securities, of the equity interest, or of the partnership
interest.
10. Reasonableness, Enforceability and Remedies.
A. Employee has carefully read and considered the provisions of
Sections 8, 9, and 10 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 9, 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 8, 9, or 10 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 Sections 8 or 9 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.
PAGE 50 of 64
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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
8 or 9, 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 Sections 8 or 9, 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.
E. Set Off. In the event of any breach by Employee of this Agreement
or the Purchase Agreement, in addition to the other rights or
remedies to which Employer and/or UCI of SC may be entitled, UCI
of SC and Employer shall be entitled, at its option, to set off
and recoup the amounts to which UCI of SC and/or Employer may
become entitled against the payments becoming due pursuant to the
Purchase Agreement and the documents related thereto including but
not limited to the Note and Lease. Employee's right to lawfully
contest such set off or recoupment in any action to collect the
amounts due hereunder shall not be impaired by UCI of SC or
Employer's exercise of such set off or recoupment right.
F. Employee's obligations under Sections 8, 9, and 10 shall survive
any termination of employment hereunder.
11. Burden and Benefit. This Agreement shall be binding upon Employer's
successors and assigns and Employee's heirs, personal and legal
representatives, 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. The terms of this
agreement are intended to benefit UCI of SC.
12. Modifications. This Agreement can only be modified by a written agreement
duly signed by Employee and an authorized representative of Buyer.
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.
13. 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.
14. Assignments. Neither this Agreement nor any rights hereunder may be
assigned or otherwise transferred by Employee.
PAGE 51 of 64
<PAGE>
15. 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.
16. Venue and Jurisdiction. The parties hereto hereby (i) agrees that any
litigation, action or proceeding arising out of or relating to this
Agreement may only be instituted in a state or federal court located in the
County of Aiken, 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 Agreement, the parties hereto further
agrees that service of process may be effected pursuant to United States
mail.
17. 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.
18. 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.
19. Severability. The invalidity or unenforceability or any provision of this
Agreement shall not render invalid or unenforceable any other provision
hereof.
20. Survival. All terms of this Agreement shall survive the Closing under the
Purchase Agreement.
21. Usage. Capitalized terms used herein which are not otherwise defined herein
shall have the meanings ascribed to them in the Purchase Agreement. 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.
22. 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
parties shall be entitled to seek or enforce any other rights or remedies
available to them at law or in equity.
PAGE 52 of 64
<PAGE>
23. 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) three (3)
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 Street, Suite 1200
Columbia, South Carolina 29201
Attn.: Stephen Seeling, Esquire
Employee: Henry A. Langston, Jr., M.D.
355 West Road
Box 10
Montmorenci, SC 29839
The parties hereto may change their respective addresses by notice in writing
given to the other party to this Agreement.
[SIGNATURE PAGE ATTACHED]
PAGE 53 of 64
<PAGE>
IN WITNESS WHEREOF, the parties have executed this Employment Agreement
effective on the date first set forth above.
EMPLOYER:
IN THE PRESENCE OF:
DOCTOR'S CARE, P.A.
/s/ Julian B. Salley, Jr.
Witness By: /s/ Stephen S. Seeling
Its: Secretary
/s/ Mary Ann Langston
Witness
EMPLOYEE:
/s/ Julian B. Salley, Jr.
Witness /s/ H.A. Langston, Jr.
Henry A. Langston, Jr., M.D.
/s/ Mary Ann Langston
Witness
PAGE 54 of 64
<PAGE>
EXHIBIT G
NON-COMPETITION COVENANT
THIS NON-COMPETITION COVENANT ("Agreement"), is made and entered into
to be effective as of this 1st day of October, 1996, by and between UCI Medical
Affiliates of South Carolina, Inc., a South Carolina corporation ("Buyer"), and
Henry A. Langston, Jr., M.D. ("Shareholder").
Preliminary Statement
Shareholder is currently an officer and shareholder of H.A. Langston,
Jr., M.D., P.A., a South Carolina professional corporation ("Seller"). Buyer
owns and/or leases various medical-related facilities and equipment in South
Carolina and has contracted with Doctor's Care, P.A., a South Carolina
professional corporation ("Doctor's Care"), to provide health care services at
such facilities.
Seller, Buyer, Shareholder, UCI Medical Affiliates, Inc., and Doctor's
Care among others have entered into that certain Asset Purchase Agreement, dated
effective as of October 1, 1996 (the "Purchase Agreement") respecting the sale
by Seller to Buyer of substantially all of the assets of Seller (the "Assets"),
which assets are utilized in Seller's business of a medical practice located at
209 Abbeville Avenue, N.W., Aiken, South Carolina 29801 (the "Business"). Also,
pursuant to the Purchase Agreement, Seller shall lease certain real estate and
improvements located at 209 Abbeville Avenue, N.W., Aiken, South Carolina 29801
at which the Business is operated (the "Building").
Seller has conducted the Business for a substantial number of years,
and Shareholder has been an officer, director, shareholder, and employee of the
Business since Seller's incorporation in July 1, 1971. Thereby, Shareholder has
made use of, acquired, and added to confidential and proprietary information and
trade secrets of Seller, all of which are portions of the Assets of Seller
(which Assets are being sold to Buyer pursuant to the Purchase Agreement).
Shareholder also has developed unique relationships with patients,
suppliers, and employees of Seller and unique information and knowledge about
the competitive market, locations, potential patients, processes and prospects
of Seller's Business.
Buyer intends to operate the Assets acquired by it for Buyer's business
similar to Seller's Business. The value of Buyer's acquisition would be
diminished in the event that Shareholder were to compete with Buyer and/or
Doctor's Care, to assist another person or entity to compete with Buyer and/or
Doctor's care, or to wrongfully divulge any confidential information.
Buyer has required, as a condition precedent to its purchase of such
Assets and lease of the Building pursuant to the Purchase Agreement, that
Shareholder covenant not to divulge any confidential information and not to
compete with Buyer and/or Doctor's Care as set forth herein.
Shareholder has agreed to provide such covenants as set forth herein as
a material inducement to Buyer to enter into and close the Purchase Agreement
and in consideration of the payments to be made thereunder. Shareholder's
covenants contained herein are ancillary to the Purchase Agreement. Shareholder
acknowledges that he/she will benefit from the Purchase Agreement.
Pursuant to the Purchase Agreement, Buyer and Shareholder desire to set
forth the terms and conditions of their agreements and understandings respecting
such covenants.
PAGE 55 of 64
<PAGE>
Statement of Agreement
NOW, THEREFORE, in consideration of the foregoing premises, the
promises set forth herein, the Purchase Agreement, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
Shareholder and Buyer, intending to be legally bound, hereby agree and covenant
as follows:
1. Non-Disclosure of Information. Shareholder 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, Shareholder at any time before or after the date
hereof (exclusive of such information as is in the public domain or as is
required to be disclosed pursuant to an applicable law, rule, regulation,
or final non-appealable order of a court of competent jurisdiction).
Shareholder acknowledges that such confidential information is of a special
and unique nature and value relating to matters of Seller's Business,
including, without limitation, Seller's lists of patients and potential
patients, leases or contacts (which were specifically targeted by Seller
prior to Closing), pricing information and lists, sales and marketing
materials and methods, proprietary information, trade secrets, trademarks,
systems, procedures, manuals, confidential reports, records, operational
expertise, the nature and type of services rendered by Seller, the
equipment and methods used and preferred by Seller's patients and
customers, and the fees paid by them (all of which are deemed for all
purposes to be confidential, proprietary, and trade secrets of Seller
transferred to Buyer pursuant to the Purchase Agreement).
2. Covenants against Competition. For a period of three (3) years after the
effective date hereof:
a) Patients, Etc. Shareholder shall not, directly or through an
Affiliate (as defined below), (i) provide medical care or services
to (or assist another person or entity to provide medical care or
services to) any Seller Patient (as hereinafter defined), or (ii)
solicit or divert (or assist another person or entity to solicit
or divert) any Seller Patient from purchasing or using any of the
Buyer's and/or Doctor's Care's services, or (iii) provide anywhere
in the Territory (as defined below) medical care or services in
any primary, urgent, general family, or industrial or occupational
medical care facility or practice providing the same or similar
services provided or offered by Buyer and/or Doctor's Care. For
purposes of this Section 2(a), the term "Seller Patient" shall
mean any patient of Seller and/or Doctor's Care and shall include
(without limitation) every such person to which Seller has
provided medical services prior to the date hereof and/or provides
medical services after the date hereof directly or indirectly on
behalf of Doctor's Care or Buyer. For purposes hereof, the term
"Territory" shall mean everywhere within a fifteen (15) mile
radius of the Building.
b) Ownership. In addition to (but not in limitation of) the
restrictions of Section 2(a), Shareholder shall not, directly or
through an Affiliate (as defined below), own an equity interest
(other than as the holder for investment purposes only of up to 2%
of the outstanding capital stock of any corporation which is
publicly traded on a national stock exchange or the NASDAQ
National Market System, so long as Shareholder is not a
controlling person of, or a member of a group that controls, such
corporation, and Shareholder is not otherwise affiliated in any
capacity with such corporation) in any entity or enterprise
conducting operations in the Territory which is competitive with
the business activities engaged in by Seller prior to Closing or
by the Buyer and/or Doctor's Care after the Closing.
c) Employees. In addition to (but not in limitation of) the
restrictions of Sections 2(a) and (b), Shareholder 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, Buyer or Doctor's Care to terminate such person's
association or contract of employment or agency, as the case may
be, with Buyer and/or Doctor's Care.
PAGE 56 of 64
<PAGE>
d) Definition of Affiliate. For purposes of this Agreement, an
"Affiliate" of Shareholder 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
Shareholder. 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, 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 2(d)(i) of this Agreement collectively own ten percent
(10%) 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 2(d)(i) of this Agreement are the beneficial
owners collectively of ten percent (10%) of any class of equity
securities, of the equity interest, or of the partnership
interest.
e) Exception. Notwithstanding the foregoing, Shareholder shall not be
deemed to be in violation of any covenant contained herein as a
result of Shareholder's: (i) providing urgent or emergency medical
services within the emergency room of any medical facility
licensed as a hospital in the State of South Carolina, or (ii)
providing emergency care to any Seller Patient in a potentially
life-threatening situation, or (iii) providing medical services
directly or indirectly on behalf of Doctor's Care, P.A., a South
Carolina professional corporation ("Doctor's Care"), or (iv)
providing medical services to inmates of behalf of the South
Carolina Department of Corrections.
3. Consideration. In consideration of the restrictions and covenants contained
herein, Shareholder hereby acknowledges the receipt and adequacy of ten
($10.00) dollars and such other consideration set forth in the Purchase
Agreement.
4. Remedies.
a) Accounting for Lost Profits. If Shareholder shall violate any of
the provisions of Sections 1 or 2, Buyer shall be entitled to
recover any non-speculative lost profits incurred by Buyer and/or
Doctor's Care as a result of, growing out of, or in connection
with, any such violation by Shareholder. This remedy shall be in
addition to, and not in limitation of, any injunctive relief or
other rights, remedies, or damages, to which Buyer and/or Doctor's
Care is or may be entitled as a result of this Agreement.
b) Injunctive Relief. In the event of a breach or threatened breach
by Shareholder of any of the provisions of Sections 1 or 2, Buyer
and/or Doctor's Care, in addition to, and not in limitation of,
any other rights, remedies, or damages available to Buyer and/or
Doctor's Care at law or in equity, shall be entitled to a
temporary restraining order, preliminary injunction, and permanent
injunction in order to prevent or restrain any such breach by
Shareholder or by Shareholder's partners, agents, representatives,
servants, employers, employees, companies, consulting clients,
and/or any and all persons directly or indirectly acting for or
with Shareholder. Shareholder agrees that in the event of any
breach by Shareholder of the covenants set forth in this
Agreement, Buyer and Doctor's Care shall suffer irreparable harm
for which the remedy of monetary damages may be inadequate.
c) Set Off. In the event of any breach by Shareholder of this
Agreement or the Purchase Agreement, in addition to the other
rights or remedies to which Buyer and Doctor's Care may be
entitled, Buyer and/or Doctor's Care shall be entitled, at its
option, to set off and recoup against the payments becoming due
pursuant to the Purchase Agreement the amounts to which Buyer
and/or Doctor's Care may become entitled. Shareholder's right to
lawfully contest such set off or recoupment in any action to
collect the amounts due hereunder shall not be impaired by Buyer's
or Doctor's Care's exercise of such set off or recoupment right.
PAGE 57 of 64
<PAGE>
e) Alternatives. Buyer and/or Doctor's Care shall have the option, in
its sole discretion, to enforce the various restrictions of
Sections 1 and 2 cumulatively, in the alternative, or
consecutively.
5. Reasonableness of Restrictions.
a) Acknowledgment. Shareholder has carefully read and considered the
provisions of Sections 1, 2, 3 and 4, and, having done so,
voluntarily agrees that the restrictions set forth in those
Sections, including, but not limited to, the time period of
restriction, the geographical areas of restriction, and the scope
of restricted activities set forth in Section 2, are fair and
reasonable and are reasonably required for the protection of the
legitimate interests of the Buyer, and its parent or subsidiary
corporations, partnerships, officers, directors, partners,
employees and affiliates, including but not limited to Doctor's
Care.
b) Enforcement. In the event that, notwithstanding the foregoing, any
of the provisions of Sections 1, 2, or 4 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 provisions of Sections 1 or 2 relating to the time period
and/or the areas of restriction and/or the scope of restricted
activities 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
areas of restriction and/or the scope of restricted activities
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.
6. Miscellaneous.
a) Burden and Benefit. This Agreement shall be binding upon Buyer's
successors and assigns and Shareholder's heirs, personal and legal
representatives, successors and assigns, and shall inure to the
benefit of Buyer's and Doctor's Care's respective successors and
permitted assigns and Shareholder's heirs, personal legal
representatives, successors, and permitted assigns.
b) Modifications. This Agreement can only be modified by a written
agreement duly signed by Shareholder and an authorized
representative of Buyer. 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.
c) 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.
d) Assignments. Neither this Agreement nor any rights hereunder may
be assigned or otherwise transferred by Shareholder.
e) 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.
PAGE 58 of 64
<PAGE>
f) Venue and Jurisdiction. The parties hereto hereby (i) agrees 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 Aiken County, 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 Agreement, the parties hereto further agrees that
service of process may be effected pursuant to United States mail.
g) 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.
h) 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.
i) Severability. The invalidity or unenforceability or any provision
of this Agreement shall not render invalid or unenforceable any
other provision hereof.
j) Survival. All terms of this Agreement shall survive the Closing
under the Purchase Agreement.
k) Usage. Capitalized terms used herein which are not otherwise
defined herein shall have the meanings ascribed to them in the
Purchase Agreement. 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.
l) 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 parties shall be entitled to
seek or enforce any other rights or remedies available to them at
law or in equity.
m) 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) three (3) business days after being duly deposited
in the United States certified mail, return receipt requested, and
addressed as follows:
Buyer: UCI Medical Affiliates of South Carolina, Inc.
1901 Main Street, Suite 1200
Columbia, South Carolina 29201
Attn.: Stephen Seeling, Esquire
Shareholder: Henry A. Langston, Jr., M.D.
355 West Road
Box 10
Montmorenci, SC 29839
The parties hereto may change their respective addresses by notice in writing
given to the other party to this Agreement.
PAGE 59 of 64
<PAGE>
IN WITNESS WHEREOF, this Non-Competition Covenant is executed under
seal by Buyer and Shareholder to be effective as of the date first above
written.
WITNESSES: SHAREHOLDER:
/s/ Julian B. Salley, Jr.
/s/ H.A. Langston, Jr. (SEAL)
Henry A. Langston, Jr., M.D.
Social Security Number: ###-##-####
/s/ Mary Ann Langston
BUYER:
UCI MEDICAL AFFILIATES OF SOUTH
CAROLINA, INC.
/s/ Julian B. Salley, Jr.
By: /s/ Stephen S. Seeling
Its: Chief Operating Officer and Counsel
/s/ Mary Ann Langston
PAGE 60 of 64
<PAGE>
EXHIBIT H
BILL OF SALE
KNOW ALL MEN BY THESE PRESENTS, that H.A. LANGSTON, JR., M.D., P.A., a
South Carolina professional corporation with offices at 209 Abbeville Avenue,
N.W., Aiken, South Carolina 29801 (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 1, 1996, by and between among others Seller, Buyer, Henry A.
Langston, 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 on
September 30, 1996, to be effective as of the 1st day of October, 1996.
IN THE PRESENCE OF: H.A. LANGSTON, JR., M.D., P.A.
(CORPORATE SEAL)
/s/ Julian B. Salley, Jr. By: /s/ H.A. Langston, Jr.
(Witness) Its: President
/s/ Mary Ann Langston
(Witness)
PAGE 61 of 64
<PAGE>
STATE OF SOUTH CAROLINA )
) PROBATE
COUNTY OF RICHLAND )
PERSONALLY APPEARED before me the undersigned witness who, after first
being duly sworn, deposes and says that s/he saw the within named H.A. LANGSTON,
JR., M.D., P.A., by Henry A. Langston, 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/ Mary Ann Langston
Witness
SWORN to before me this 30th day of September, 1996.
/s/ Julian B. Salley, Jr. (L.S.)
Notary Public for South Carolina
My Commission Expires: November 14, 1999
PAGE 62 of 64
<PAGE>
EXHIBIT I
ASSIGNMENT AND ASSUMPTION AGREEMENT
KNOW ALL MEN, that H.A. LANGSTON, JR., M.D., P.A., a South Carolina
professional corporation (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 1, 1996, by and
between among others Assignor, Assignee, Henry A. Langston, 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.
IN WITNESS WHEREOF, the parties have duly executed this Assignment and
Assumption Agreement on September 30, 1996, to be effective as of the 1st day of
October, 1996.
ASSIGNOR:
H.A. LANGSTON, JR., M.D., P.A.
By: /s/ H.A. Langston, Jr.
Its: President
ASSIGNEE:
UCI MEDICAL AFFILIATES OF SOUTH
CAROLINA, INC.
By: /s/ Stephen S. Seeling
Its: Chief Operating Officer and Counsel
PAGE 63 of 64
<PAGE>
SCHEDULE 1
Liabilities To Be Assumed
None.
PAGE 64 of 64
