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: September 1, 1997
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UCI Medical Affiliates, Inc.
(Exact name of registrant as specified in its charter)
Delaware 0-13265 59-2225346
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(State or other jurisdiction (Commission File Number) (IRS Employer
of incorporation) Identification Number)
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
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(Former name or former address, if changed since last report.)
This document contains a total of 18 pages and the Exhibit Index is set
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set forth on sequentially numbered page 4.
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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 2, 1997, to be effective as of September 1, 1997 by, between and among
UCI Medical Affiliates of South Carolina, Inc., a South Carolina corporation
("UCI of SC"), Doctor's Care, P.A., a South Carolina professional corporation
("Doctor's Care"); Clifton G. Aycock, M.D., a South Carolina resident
("Seller"); and Schumacher Group, Inc., a Louisiana corporation ("Landlord").
UCI of SC has acquired certain assets (including patient list and goodwill)
associated with the medical practice owned and operated by Seller in Camden,
South Carolina. The consideration for the acquisition shall be Forty-Five
Thousand and no/100 ($45,000.00) Dollars payable as outlined in Section 3 of the
Asset Purchase Agreement, referenced above, which begins on page 6 of this Form
8-K. The consideration paid by UCI of SC in connection with this acquisition was
determined by arms-length negotiations between UCI of SC 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. This
center will operate under the name of Doctor's Care Camden.
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 business 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-K 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-K 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 2, 1997, to be effective as of September 1, 1997 by,
between and among UCI Medical Affiliates of South Carolina, Inc.,
a South Carolina corporation ("UCI of SC"), Doctor's Care, P.A., a
South Carolina professional corporation ("Doctor's Care"); Clifton
G. Aycock, M.D., a South Carolina resident ("Seller"); and
Schumacher Group, Inc., a Louisiana corporation ("Landlord").
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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.
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(Registrant)
/s/ Marion F. McFarland, III, M.D. /s/ Jerry F. Wells, Jr.
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Marion F. McFarland, III, M.D. Jerry F. Wells, Jr., CPA
President, Chief Executive Officer and Executive Vice President of
Chairman of the Board Finance and Chief Financial Officer
Date: September 3, 1997
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UCI MEDICAL AFFILIATES, INC.
EXHIBIT INDEX
TO
FORM 8-K
EXHIBIT PAGE
NUMBER DESCRIPTION NUMBER
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2.1 Asset Purchase Agreement dated and executed on 6
September 2, 1997, to be effective as of September 1,
1997, by, between and among UCI Medical Affiliates
of South Carolina, Inc., a South Carolina corporation
("UCI of SC"); Doctor's Care, P.A., a South Carolina
professional corporation ("Doctor's Care"); Clifton
G. Aycock, M.D., a South Carolina resident ("Seller");
and Schumacher Group, Inc., a Louisiana corporation
("Landlord").
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EXHIBIT NO. 2.1
ASSET PURCHASE AGREEMENT
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ASSET PURCHASE AGREEMENT
This Asset Purchase Agreement (the "Agreement") is made as of the 2nd day
of September, 1997, to be effective as of September 1, 1997, by, between and
among UCI Medical Affiliates of South Carolina, Inc., a South Carolina
corporation ("UCI of SC"); Doctor's Care, P.A., a South Carolina professional
corporation ("Doctor's Care"); Clifton G. Aycock, M.D., a South Carolina
resident ("Seller"); and Schumacher Group, Inc., a Louisiana corporation
("Landlord").
INTRODUCTION. Seller owns and operates a medical practice located at 1327
Haile Street, Camden, South Carolina 29020 (the "Premises"). Seller is the sole
owner of the Business (as defined in Section 1.1.1 herein below). 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 with Doctor's Care, and (iii)
transfer to UCI of SC as of 12:01 a.m. on September 1, 1997 (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. As of the Effective Date, 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 the
"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.
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 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. As of the Effective Date, for and in
consideration of Ten ($10.00) Dollars and no other monetary consideration,
Seller shall transfer and deliver to Doctor's Care all of the Seller's right,
title and interest in and to any medical records in his 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 to Doctor's Care at the
Closing (as defined below), as set forth in this Agreement.
2.3 Notices. Seller shall cause any public notices to be filed in a timely
manner and to otherwise comply with all requirements of the Physician's Patient
Records Act or any other applicable law, regulation, rule or ordinance related
to the transfer of the Patient Records.
2.4 Possession. Doctor's Care shall pick up and take, and Seller shall
relinquish, possession of the Patient Records at Closing (as defined below), to
be effective as of the Effective Date.
3. CONSIDERATION FOR ACQUISITIONS. The total purchase price ("Purchase Price")
for the Assets to be acquired by UCI of SC shall be Forty-Five Thousand and
No/100 ($45,000.00) Dollars with the sum of One Thousand Five Hundred and No/100
($1,500.00) Dollars payable in cash or company check at Closing (as defined
below), and the balance of Forty-Three Thousand Five Hundred and No/100
($43,500.00) Dollars due and payable to Seller in thirty-three (33) monthly
installments, with the first payment due on or about January 1, 1998, pursuant
to a promissory note substantially in the form attached hereto as Exhibit C (the
"Note").
4. CLOSING.
4.1 Closing Date. The closing of the sale and purchase of the Assets and
related transactions (the "Closing") shall take place on Tuesday, September 2,
1997, commencing at 11:00 a.m. (local time), at the offices of Nexsen Pruet
Jacobs & Pollard, LLP at 1441 Main Street, Suite 1500, Columbia, South Carolina
or such other time and place as may be mutually agreed upon in writing by the
parties (alternatively "Closing"), all to be effective as of the Effective Date.
In the event Closing set forth in this Section 4 is changed to a different date,
all references in this Agreement to Closing shall be deemed to refer to the time
and date agreed upon by the parties, in the manner set forth herein.
4.2. Transactions at Closing. At the Closing:
4.2.1 UCI of SC shall execute and deliver to Seller the Note.
4.2.2 Seller 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.
4.2.3 UCI of SC and Doctor's Care shall execute and deliver to
Seller the documents, agreements and instruments in form and substance
required by this Agreement, as described in Section 4.4..
4.2.4 Seller and Doctor's Care shall each execute and deliver to
the other the employment agreement substantially in the form of Exhibit D
attached hereto (the "Employment Agreement").
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4.2.5 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.
4.2.6 The parties hereto will take such other actions contemplated
at Closing by this Agreement.
4.3 Seller's Documents. At Closing, Seller shall deliver or cause
to be delivered, at Seller's expense, the following duly executed, lawful and
effective documents and instruments:
4.3.1 A bill of sale for tangible personal property and fixtures
composing portions of the Assets substantially in the form attached hereto
as Exhibit E to UCI of SC.
4.3.2 An assignment of intangible personal property composing
portions of the Assets substantially in the form attached hereto as Exhibit
F to UCI of SC.
4.3.3 The Employment Agreement substantially in the form attached
hereto as Exhibit D to Doctor's Care.
4.3.4 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.
4.3.5 The Non-Competition Covenant (the "Non-Compete")
substantially in the form attached hereto as Exhibit H to UCI of SC.
4.3.6 Copy of all current data, contracts and information for
the Business.
4.4 Documents of UCI of SC or Doctor's Care. At Closing, Doctor's Care
and/or UCI of SC, at their expense, shall deliver or cause to be delivered to
Seller the following duly executed, lawful, and effective documents and
instruments:
4.4.1 UCI of SC will execute and deliver to Seller the Note
substantially in the form attached hereto as Exhibit C.
4.4.2 Doctor's Care will deliver the Employment Agreement
substantially in the form attached hereto as Exhibit D.
4.5 Conditions of Title. At Closing, the Assets shall be conveyed by
appropriate instruments of conveyance free and clear of all claims, security
interests, liens and encumbrances except personal property and ad valorem taxes
for the year of Closing (which shall be prorated as provided in this Agreement).
At Closing, UCI of SC shall hold a leasehold interest in the Premises free and
clear of all claims, security interests, liens and encumbrances except real
property taxes for the year of Closing which are not yet due and payable (which
shall be paid by Seller).
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4.6 Transactions Subsequent to Closing.
4.6.1 Employment Matters. Nothing contained herein shall be
construed to create any liability for 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 Confidentiality. Seller shall hold in confidence all
documents and information concerning the Business and the Assets (except
that Seller may, after reasonable notice to UCI of SC disclose such
documents and information, or copies or summaries thereof, to any
governmental authority reviewing the transactions contemplated hereby or as
required in Seller's reasonable judgment pursuant to federal or state laws
or court order).
4.6.3 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 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.
4.6.4 Taxes. Seller shall file such tax returns and reports and
pay such taxes as are required for periods ending with the Effective Date.
4.6.5 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.
4.6.6 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. Seller hereby warrants,
represents, and covenants as follows:
5.1 Sole Proprietorship. Seller is a sole proprietorship with authority to
carry on the Business and to own and operate its properties and assets as
presently owned and operated. The Assets are not owned in whole or in part by
any corporation, limited liability company, or partnership.
5.2 Authority. When executed and delivered, this Agreement shall constitute
a valid and binding obligation of Seller 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
of any of the terms, conditions, or judgment, law or other contract, agreement
or instrument to which Seller is bound, or constitute a default of such
indenture, mortgage, deed of trust, order, judgment, law or other contract,
agreement or instrument.
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5.3 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.
5.4 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.
5.5 Consents. No consent of any third party is required in connection with
Seller's transfer and assignment of the Assets hereunder.
5.6 Litigation. There are no judicial or administrative actions or
proceedings pending, or to the best of Seller's knowledge, threatened that
question the validity of this Agreement or any transaction contemplated hereby
or that relate to the Assets or 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 ability to enter
into this Agreement or perform its obligations hereunder or upon the use,
enjoyment, or value of the Assets and/or the Premises for UCI of SC and/or
Doctor's Care.
5.7 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.
5.8 Normal Course. Seller shall have operated the Assets in the normal and
ordinary course of business since at least January 1, 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.
5.9 Creditors, Solvency, and Bankruptcy. Seller shall not hinder, delay,
defraud, or avoid any obligation to any past, present or future creditor in the
transactions contemplated by this Agreement. Seller is currently solvent and
will not be rendered insolvent as a result of the transactions 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.
5.10 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,
cash bonus, 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
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against Seller for the alleged violation of the Internal Revenue Code with
respect to the Business or its operation.
5.11 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.
5.12 Workers' Compensation. There are no worker compensation or similar
claims or actions pending or threatened, and Seller does not know of facts which
would make such claims timely, by past or present employees of Seller.
5.13 Status of Assets. The Assets sold hereunder constitute all of the
assets of the Business and include all property, rights, and intangibles
necessary for UCI of SC and/or Doctor's Care to operate after Closing a business
similar to the Business as presently conducted. All material inventory systems,
machinery, equipment, and other tangible property which are portions of the
Assets are generally sound, in good repair, may be safely operated within all
applicable standards or regulations in their present conditions, and are in
merchantable condition. All material contracts, commitments, and similar rights
which are portions of the Assets are valid, binding, enforceable, and without
known default in violation of law. The information related to accounts
receivable provided to UCI of SC is materially accurate and reflect valid,
binding, and enforceable rights of the Business which shall be lawfully
transferred to UCI of SC hereunder.
5.14 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.
5.15 Brokerage. Seller has not 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.
5.16 Zoning. The Premises is currently zoned for commercial operations and
is in compliance with applicable zoning laws and ordinances; and Seller does not
know that the status of such zoning is in question or subject to change by the
appropriate governmental authorities.
5.17 Environmental. The Premises is not now used and, to the best of
Seller's knowledge, has 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 knowledge, is in
substantial compliance with applicable environmental laws.
5.18 Disclosures. To the best of Seller's knowledge, all information and
data furnished by Seller to 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.
5.19 Representations and Warranties at Closing. Except as expressly
otherwise permitted in this Agreement, the representations and warranties of
Seller set forth in this Agreement shall be 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 DOCTOR'S CARE AND UCI OF SC. Doctor's Care
and UCI of SC hereby jointly and severally represent, warrant, and covenant as
follows:
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6.1 Organization and Good Standing. 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. 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 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 Doctor's Care or UCI of SC of any of the terms,
conditions or provisions of any of their respective of trust, order, judgment,
law, or other contract, agreement or instrument to which either of them is a
party, or by which either is bound, or constitute a default of such indenture,
mortgage, deed of trust, order, judgment, law, or other contract, agreement or
instrument.
6.3 Brokerage. Neither 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 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. Neither Doctor's Care nor UCI of SC
shall hinder, delay, defraud or avoid any obligations to any past, present or
future creditor of 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. Neither Doctor's Care nor UCI of SC intends 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
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 of SC and Doctor's Care. The obligations of 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:
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7.1.1 Representation and Warranties. The representations and
warranties of Seller contained in this Agreement shall be true and correct
in all material respects as of the date when made and, except for changes
specifically contemplated by this Agreement, on and as of the Effective
Date as though such representations and warranties had been made as of the
Effective Date.
7.1.2 Deliveries. The release of documents which Seller is
obligated to make under Section 4 shall have been made.
7.1.3 Computer Equipment Installation. As of Closing, the
Premises shall have been successfully integrated into UCI of SC's computer
systems.
7.1.4 Conversion of Computer Records. As of Closing, the computer
records of Seller shall have been successfully converted for use with UCI
of SC's computer systems.
7.1.5 Lease of Premises. That certain Lease and Option Agreement
and Right of First Refusal dated as of August 18, 1997, by and between UCI
of SC and Landlord (the "Lease"), and attached hereto as Exhibit G, shall
have been executed and delivered prior to Closing, and shall be in full
force and effect as of the Effective Date.
7.2 Conditions of Seller. The obligations of Seller 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 of SC and Doctor's Care contained in this Agreement shall
be true and correct in all material respects as of the date when made and,
except for changes specifically contemplated by this Agreement, on and as
of the Effective Date as though such representations and warranties had
been made as of the Effective Date.
7.2.2 Deliveries. The release of documents which UCI 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 shall indemnify and hold Doctor's Care, UCI
of SC, and UCI Medical Affiliates, Inc., a Delaware corporation ("UCI"), 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
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UCI, Doctor's Care or UCI of SC as a result of any breach by Seller of any
covenant, warranty representation, or agreement, made by Seller herein or in
agreements related hereto including but not limited to litigation expenses and
legal fees that might be incurred because of such breach.
9.2 Special Indemnities. Seller shall 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 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.
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 under this Agreement, the Employment
Agreement, the Note, or any other instruments ancillary hereto in the event
Seller breaches this Agreement or any document related thereto or any right of
indemnification arises in favor of UCI, UCI of SC, or Doctor's Care under this
Agreement. Seller retains the right to lawfully contest any such set off or
recoupment in an action to collect any amounts due Seller under this Agreement,
the Employment Agreement, the Note, or such other ancillary instruments. The
inclusion of this special set off or recoupment provision shall not effect the
availability, if any, of rights of set off or recoupment arising at law or in
equity.
10. EXISTING LIABILITIES. 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 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
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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, as set forth in Section 5 shall be
modified equitably to account for such claim or action.
12. CROSS-DEFAULT. Notwithstanding anything contained herein to the contrary, in
the event Seller and/or Landlord breaches this Agreement, the Employment
Agreement, the Non-Compete, or the Lease, or any other agreement or instrument
ancillary hereto to which it is a party, such breach thereof (at the expiration
of the applicable grace period set forth therein) shall constitute a breach by
Seller of this Agreement.
13. MISCELLANEOUS.
13.1 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.
13.2 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.
13.3 Survival. All representations, warranties, covenants, and agreements
herein contained shall survive the Closing hereunder.
13.4 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.
13.5 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.: Jerry F. Wells, Jr.
Doctor's Care: Doctor's Care, P.A.
1901 Main Street, Suite 1200
Columbia, SC 29201
Attn.: M.F. McFarland, III, MD
Seller: Clifton G. Aycock, M.D.
730 Windy Hill Road
Camden, South Carolina 29020
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Landlord: Schumacher Group, Inc.
5201 Camp Street
New Orleans, Louisiana 70115
Attn: Philip Bell
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.
13.6 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.
13.7 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.
13.8 Counterparts. This Agreement may be executed in any number of
counterparts, all of which taken together shall constitute one Agreement, and
any party hereto may execute this Agreement by signing any such counterpart. The
authorized attachment of counterpart signature pages shall constitute execution
by the parties.
13.9 Choice of Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of South Carolina.
13.10 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.
13.11 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.
13.12 No Inference Against Author. No provision of this Agreement shall be
interpreted against any party because such party or its legal representative
drafted such provision.
13.13 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.
13.14 Assignment. This Agreement is not assignable by any party without the
prior written consent of the other parties hereto.
[SIGNATURE PAGE ATTACHED]
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IN WITNESS WHEREOF, the parties have executed this Asset Purchase Agreement
under seal, with the corporate parties acting by and through their duly
authorized officers, this 2nd day of September, 1997, to be effective as of
September 1, 1997.
UCI OF SC: SELLER:
- -------------------------- ---------------------
UCI MEDICAL AFFILIATES OF
SOUTH CAROLINA, INC.
By: /s/ Jerry F. Wells, Jr. /s/ Clifton G. Aycock
------------------------ ------------------------
Chief Financial Officer Clifton G. Aycock, M.D.
DOCTOR'S CARE: LANDLORD:
DOCTOR'S CARE, P.A. SCHUMACHER GROUP, INC.
- ---------------------------- ------------------------
By: /s/ Jerry F. Wells, Jr. /s/ Philip Bell
------------------------ -----------------
Chief Financial Officer Its: President
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INDEX OF EXHIBITS
Exhibit A List of Assets
Exhibit B Bill of Sale - Medical Records
Exhibit C Promissory Note
Exhibit D Employment Agreement
Exhibit E Bill of Sale
Exhibit F Assignment
Exhibit G Lease and Option Agreement and Right of First Refusal
Exhibit H Non-Competition Covenant
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