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: November 1, 1997
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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
(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 22 pages and the Exhibit Index is set
forth on sequentially numbered page 5 .
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Item 2. Acquisition or Disposition of Assets
Pursuant to the terms of an Asset Purchase Agreement (the "Agreement") executed
on October 31, 1997, to be effective November 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"); Marvin Dees, M.D., a South Carolina resident ("Seller"); and
Landlord (defined as Seller and Katherine R. Dees, collectively). UCI of SC has
acquired certain assets as outlined in Section 1 of the Agreement (including
patient list and goodwill) associated with Seller's practice located in New
Ellenton, South Carolina. The consideration for the acquisition shall be Two
Hundred Fifty-Nine Thousand Five Hundred Thirty-Five and 78/100 ($259,535.78)
Dollars, payable as outlined in Section 3 of the Agreement, 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
practice will operate under the name Doctor's Care New Ellenton.
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/A 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/A as soon as practicable, but not later than 60 days
after this Report on Form 8-K is due to be filed.
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c) Exhibits
Exhibit 2.1 - Asset Purchase Agreement executed on October 31,
1997, to be effective November 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"); Marvin Dees, M.D., a
South Carolina resident ("Seller"); and Landlord (defined as
Seller and Katherine R. Dees, collectively).
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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., CPA
President, Chief Executive Officer and Executive Vice President of
Chairman of the Board Finance and Chief Financial Officer
Date: November 5, 1997
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UCI MEDICAL AFFILIATES, INC.
EXHIBIT INDEX
TO
FORM 8-K
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EXHIBIT PAGE
NUMBER DESCRIPTION NUMBER
2.1 Asset Purchase Agreement executed on October 31, 1997, 6
to be effective November 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"); Marvin Dees, M.D., a South Carolina resident
("Seller"); and Landlord (defined as Seller and Katherine
R. Dees, collectively).
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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 31st day
of October, 1997, to be effective as of November 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"); Marvin Dees, M.D., a South Carolina resident ("Seller"); and
Landlord (as defined below). For purposes herein, Seller and Katherine R. Dees
are collectively referred to as the "Landlord".
Introduction. Seller owns and operates a medical practice located at 400
Main Street, New Ellenton, South Carolina 29809 (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 November 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),
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
1.1 attached hereto, excluding only the Excluded Assets (as defined in
Section 1.2 below).
1.1.2 All of the goodwill, permits, licenses, computer software
and related intangible personal property of the Business, excluding only
the Excluded Assets (as defined in Section 1.2 below). 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 except as expressly set
forth in Section 3.2 below.
1.1.3 All of the inventory of the Business, wherever located,
excluding only the Excluded Assets (as defined in Section 1.2 below).
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 Excluded Assets. Anything contained in this Agreement to the contrary
notwithstanding, the parties hereto acknowledge and agree that Seller will not
sell, assign, or convey to UCI of SC, and UCI of SC will not acquire, any right,
title, or interest whatsoever in or to any of the assets or property of Seller
listed in Exhibit 1.2 attached hereto (collectively the "Excluded Assets").
Seller will make all reasonable efforts to complete the removal of the Excluded
Assets located at the Business, if any, within ten (10) days after receiving the
request for removal from UCI of SC. Neither UCI, UCI of SC, nor Doctor's Care
shall be an insurer of the safety or condition of the Excluded Assets after
Closing; and Seller shall retain the risk of loss with respect to any Excluded
Assets after Closing.
1.3 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.
1.4 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 (excepting the Excluded Assets).
1.5 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 valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, 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 2.2, 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, at any time either before or after
Closing, any public notices to be filed in a timely manner and to otherwise
comply with all requirements of the South Carolina 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 total purchase price ("Purchase Price") for the
Assets to be acquired by UCI of SC hereunder shall be Two Hundred Fifty-Nine
Thousand Five Hundred Thirty-Five and 78/100 ($259,535.78) Dollars payable to
Seller as follows:
3.1.1 Common Stock. At Closing (as defined below), UCI shall issue
to Seller certificate(s) representing such numbers of shares of the voting
common stock of UCI, $0.05 par value (the "Shares"), having an aggregate
value of Eighty-Five Thousand and No/100 ($85,000.00) Dollars. For purposes
hereof, the price per share of the Shares shall be the closing ask price of
such voting common stock on Tuesday, October 28, 1997. The parties hereto
acknowledge that the Shares shall be "restricted stock" under the federal
securities laws (meaning that it was purchased other than through a
registered public offering). The Shares, when issued, will be duly
authorized, validly issued, fully paid and non-assessable. The certificate
evidencing the Shares shall bear a restrictive legend in substantially the
following form:
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THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY
STATE SECURITIES LAWS, HAVE BEEN TAKEN WITHOUT A VIEW TO THE
DISTRIBUTION THEREOF WITHIN THE MEANING OF SUCH ACT, AND MAY NOT
BE SOLD, PLEDGED, TRANSFERRED OR OTHERWISE DISPOSED OF EXCEPT IN
ACCORDANCE WITH SUCH ACT AND THE RULES AND REGULATIONS THEREUNDER
AND IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS. THE
COMPANY WILL NOT TRANSFER SUCH SHARES EXCEPT UPON RECEIPT OF
EVIDENCE SATISFACTORY TO THE COMPANY, WHICH MAY INCLUDE AN OPINION
OF COUNSEL, THAT THE REGISTRATION PROVISIONS OF SUCH ACT HAVE BEEN
COMPLIED WITH, THAT SUCH REGISTRATION IS NOT REQUIRED AND THAT
SUCH TRANSFER WILL NOT VIOLATE ANY APPLICABLE STATE SECURITIES
LAWS.
3.1.2 Additional Payment.UCI of SC shall pay to Seller as follows:
3.1.2.1 The sum of Seventeen Thousand Four Hundred
Sixty-Eight and 41/100 ($17,468.41) Dollars shall be paid by
company check to Seller at Closing (as defined below).
3.1.2.2 The sum of Sixty-Nine Thousand and No/100
($69,000.00) Dollars shall be due and payable to Seller in
Forty-Six (46) monthly installments, with the first payment due on
December 1, 1997, pursuant to a promissory note substantially in
the form attached hereto as Exhibit 3.1.2.2 (the "First Note").
3.1.2.3 The sum of Ninety Thousand Five Hundred
Thirty-Five and 78/100 ($90,535.78) Dollars shall be due and
payable to Seller in Forty-One (41) monthly installments, with the
first payment due on December 1, 1997, pursuant to a promissory
note substantially in the form attached hereto as Exhibit 3.1.2.3
(the "Second Note").
3.2. Assumption of Certain Leases. The parties hereto acknowledge and agree
that as of the Effective Date UCI of SC shall assume Seller's obligation under
those certain equipment leases set forth on Exhibit 3.2 attached hereto (the
"Assumed Leases"). Seller shall be solely responsible for obtaining any and all
necessary or required consent(s) to such assumption. Seller hereby represents,
warrants and agrees that: (1) the monthly lease payment of that certain Lease
Agreement by and between AT&T Capital Leasing Services, Inc. and Seller dated
August 15, 1996 (the "AT&T Lease") concerning the lease by Seller of a Midmark
Power Exam Table and a Flexible Sigmoidoscope Video System, which is an Assumed
Lease hereunder, is Four Hundred Six and 48/100 ($406.48) Dollars; (2) the
outstanding balance as of the Effective Date of that certain installment sales
agreement (account number 561-765106-175632) by and between Bank One and Seller
concerning the installment purchase of two power exam tables, which is an
Assumed Lease hereunder, is One Thousand Five Hundred One and 82/100 ($1,501.82)
Dollars; (3) Seller is not in default under any of the Assumed Leases; (4) to
Seller's knowledge, each of the Assumed Leases is in full force and effect as of
the Effective Date; and (5) a true and complete copy of the AT&T Lease is
attached hereto as Schedule 3.2(a). The parties hereto acknowledge and agree
that neither UCI of SC, UCI nor Doctor's Care shall assume any equipment leases,
personal property leases, real property leases, or any other liabilities of
Seller other than such Assumed Leases set forth on Exhibit 3.2 attached hereto.
3.3 Allocation of Purchase Price. The parties hereto agree that the
Purchase Price for the Assets shall be allocated as provided in Exhibit 3.3
attached hereto.
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 Friday, October 31,
1997, commencing at 2:00 p.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 Upon receipt of an investment letter in the form of Exhibit
4.2.1 attached hereto duly executed by Seller, UCI shall issue to Seller 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.
4.2.2 UCI of SC shall execute and deliver to Seller the First Note
and the Second Note.
4.2.3 Seller shall execute and deliver to UCI, 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.
4.2.4 UCI, 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..
4.2.5 Seller and Doctor's Care shall each execute and deliver to
the other the employment agreement substantially in the form of Exhibit
4.2.5 attached hereto (the "Employment Agreement").
4.2.6 UCI of SC and Landlord shall execute and deliver to the
other the lease respecting the Premises substantially in the form attached
hereto as Exhibit 4.2.6 (the "Lease"), and UCI of SC shall deliver to
Landlord by company check the initial rental payment thereunder.
4.2.7 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 required 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.
4.2.8 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 Seller will execute and deliver to UCI of SC a bill of sale
for tangible personal property and fixtures composing portions of the
Assets substantially in the form attached hereto as Exhibit 4.3.1.
4.3.2 Seller will execute and deliver to UCI of SC an assignment
of intangible personal property composing portions of the Assets
substantially in the form attached hereto as Exhibit 4.3.2.
4.3.3 Seller will execute and deliver to UCI an Investment Letter
substantially in the form attached hereto as Exhibit 4.2.1.
4.3.4 Seller will execute and deliver to Doctor's Care the
Employment Agreement substantially in the form attached hereto as Exhibit
4.2.5.
4.3.5 Seller will execute and deliver to UCI of SC copies of such
duly filed UCC termination statements, mortgages or lien satisfactions and
other documents, as are reasonably required by UCI of SC to evidence UCI of
SC's clear, marketable and insurable title to the Assets.
4.3.6 Seller will execute and deliver to UCI of SC the
Non-Competition Covenant (the "Non-Compete") substantially in the form
attached hereto as Exhibit 4.3.6.
4.3.7 Seller will execute and deliver to Doctor's Care a bill of
sale for the Patient Records substantially in the form attached hereto as
Exhibit 2.2.
4.3.8 Evidence of insurance as set forth in Section 5.7 to UCI of
SC.
4.3.9 Copies of all current data, contracts and information for
the Business.
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 the following duly executed, lawful, and effective documents
and instruments:
4.4.1 UCI shall deliver 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 UCI of SC will execute and deliver to Seller the First Note
substantially in the form attached hereto as Exhibit 3.1.2.2.
4.4.3 UCI of SC will execute and deliver to Seller the Second Note
substantially in the form attached hereto as Exhibit 3.1.2.3.
4.4.4 UCI of SC and Doctor's Care will execute and deliver to
Seller a Security Agreement substantially in the form attached hereto as
Exhibit 4.4.4, and shall execute and deliver to Seller for filing such
related UCC-1 financing statements in form and substance reasonably
acceptable to UCI of SC and Doctor's Care.
4.4.5 Doctor's Care will execute and deliver the Employment
Agreement substantially in the form attached hereto as Exhibit 4.2.5.
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). Notwithstanding the foregoing, UCI of SC acknowledges
the prior mortgage on the Premises.
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 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 Tail Malpractice Insurance. UCI of SC shall pay, in an
amount not to exceed Six Thousand Five Hundred Dollars ($6,500), the
one-time "tail" professional malpractice insurance premium for Seller upon
presentment by Seller of the insurance carrier's invoice for such premium.
UCI of SC, UCI, and Doctor's Care shall be listed as additional insureds
under such policy, and Seller shall provide evidence of such insurance to
UCI of SC upon receipt of UCI of SC's reasonable requests therefor.
4.6.7 Access to Medical Records. At Seller's sole expense if any,
Seller shall be granted reasonable access to the medical records of
Seller's patients in Doctor's Care's possession in the event access to such
records is reasonably required to defend Seller in any actual or threatened
litigation or administrative proceeding.
4.6.8 Required Legal Opinion. At UCI of SC's sole expense, UCI of
SC shall retain counsel to deliver any legal opinion required by UCI's
transfer agent to remove the restrictive legend from Seller's stock
certificate as described in Section 3.1.1 above; provided however, the
parties hereto acknowledge that removal of such legend is contingent upon
compliance by Seller of certain conditions set forth in Securities and
Exchange Commission Rule 144.
4.6.9 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.
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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, partnership, or other entity or
person.
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
bankruptcy, 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.
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.
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
Effective Date. Seller shall exercise its best efforts to preserve the goodwill
of the employees, patients, suppliers and others having business relationships
with the Business through the Effective Date.
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 except that certain
pension plan with AAFP. 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.
5.11 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 (except the Excluded Assets and Seller personally) and
include all property, rights, and intangibles necessary for UCI of SC and/or
Doctor's Care to operate after the Effective Date 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.
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. Seller's accounts receivable report dated October 30,
1997 delivered by Seller to UCI of SC at the Closing is materially accurate as
of October 30, 1997, and reflect valid, binding, and enforceable rights of the
Business which shall be lawfully transferred to UCI of SC hereunder. Seller's
gross revenue for the Business for calendar year 1996 was approximately Four
Hundred Twelve Thousand Six Hundred ($412,600) Dollars. The list of Assets
attached hereto as Exhibit 1.1 represent the fixed assets of the Business (other
than the Excluded Assets) and 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 UCI, Doctor's Care and UCI of SC. UCI,
Doctor's Care and UCI of SC hereby jointly and severally represent, warrant, and
covenant as follows:
6.1 Organization and Good Standing. UCI is a corporation duly organized,
validly existing, and in good standing under the laws of the State of Delaware
and has full corporate power to carry on its businesses and to own and operate
its properties and assets as presently owned and operated. UCI of SC is a
corporation duly organized, validly existing, and in good standing under the
laws of the State of South Carolina and has full corporate power to carry on its
businesses and to own and operate its properties and assets as presently owned
and operated. Doctor's Care is a professional association duly organized,
validly existing, and in good standing under the laws of the State of South
Carolina and has full corporate power to carry on its businesses and to own and
operate its properties and assets as presently owned and operated.
6.2 Authority. UCI, Doctor's Care and UCI of SC each have taken all
corporate action necessary to approve and authorized the execution of this
Agreement, and to consummate the transactions contemplated hereby. Each of their
respective representatives signing this Agreement has full power and authority
to execute this Agreement in the indicated capacity and to consummate the
transactions contemplated hereby. When executed and delivered, this Agreement
shall constitute valid and binding obligations of UCI, Doctor's Care and UCI of
SC, enforceable in accordance with its terms and conditions except as
enforcement may be limited by applicable bankrupt, insolvency or similar laws
effecting creditors rights generally and by principles of equity. Neither the
execution nor the delivery of this Agreement nor the consummation of the
transactions contemplated hereby, nor compliance with all of the terms and
conditions hereof, will result in the breach by UCI, Doctor's Care or UCI of SC
of any of the terms, conditions or provisions of any of their respective deed of
trust, order, judgment, law, or other contract, agreement or instrument to which
any of them is a party, or by which any 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 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. Neither UCI, Doctor's Care nor UCI
of SC shall 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. Neither UCI, 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
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 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 Lease of Premises. That certain Lease by and between UCI of
SC and Landlord shall have been executed and delivered, 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, 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 are 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, 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 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.
9.2.5 Assumed Leases. Any claim, charge, fee, expense or event
related to the Assumed Leases which arises on or before the Effective Date.
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 First Note, the Second Note, the Lease, or any other instruments
ancillary hereto in the event Seller breaches this Agreement or any document
related hereto 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 First Note, the
Second Note, the Lease, 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. Subject to Section 3.2 above, 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 hereunder, 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
such event, 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 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.
12.1 By Seller and Landlord. Notwithstanding anything contained herein to
the contrary, in the event Seller and/or Landlord breaches this Agreement, the
Non-Compete, Investment Letter, or the Lease, or any other agreement or
instrument ancillary hereto (other than the Employment Agreement) to which
either is a party, such breach thereof (at the expiration of the applicable
grace period set forth therein) shall constitute a breach by Seller and Landlord
of this Agreement.
12.2 By UCI, UCI of SC, and Doctor's Care. Notwithstanding anything
contained herein to the contrary, in the event UCI, UCI of SC, and/or Doctor's
Care breaches this Agreement, Employment Agreement, First Note, Second Note,
Security Agreement, 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 UCI, UCI
of SC, and Doctor's Care 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: UCI Medical Affiliates, Inc.
1901 Main Street, Suite 1200
Columbia, SC 29201
Attn.: Jerry F. Wells, Jr.
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: Marvin Dees, M.D.
P.O. Box 160
New Ellenton, South Carolina 29809-0160
Landlord: Marvin Dees, M.D.
Katherine Dees
P.O. Box 160
New Ellenton, South Carolina 29809-0160
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]
<PAGE>
IN WITNESS WHEREOF, the parties have executed this Asset Purchase Agreement
under seal, with the corporate parties acting by and through their duly
authorized officers, this 31st day of October, 1997, to be effective as of
November 1, 1997.
UCI OF SC: SELLER:
UCI MEDICAL AFFILIATES OF
SOUTH CAROLINA, INC.
/s/ Marvin Dees, M.D.
Marvin Dees, M.D.
By: /s/ Jerry F. Wells, Jr.
Jerry F. Wells, Jr.
Its: Chief Financial Officer
DOCTOR'S CARE: LANDLORD:
DOCTOR'S CARE, P.A.
/s/ Marvin Dees, M.D.
Marvin Dees, M.D.
By: /s/ Jerry F. Wells, Jr.
Jerry F. Wells, Jr.
Its: Secretary /s/ Katherine R. Dees
Katherine R. Dees
UCI:
UCI MEDICAL AFFILIATES, INC.
By: /s/ Jerry F. Wells, Jr.
Jerry F. Wells, Jr.
Its: Chief Financial Officer
<PAGE>
INDEX OF EXHIBITS
Exhibit 1.1 List of Assets
Exhibit 1.2 List of Excluded Assets
Exhibit 2.2 Bill of Sale - Medical Records
Exhibit 3.1.2.2 First Note
Exhibit 3.1.2.3 Second Note
Exhibit 3.2 Assumed Leases
Exhibit 3.3 Allocation of Purchase Price
Exhibit 4.2.1 Investment Letter
Exhibit 4.2.5 Employment Agreement
Exhibit 4.2.6 Lease
Exhibit 4.3.1 Bill of Sale
Exhibit 4.3.2 Assignment
Exhibit 4.3.6 Non-Competition Covenant
Exhibit 4.4.4 Security Agreement
