EXHIBIT NO. 2.1
ASSET PURCHASE AGREEMENT
AND
PLAN OF REORGANIZATION
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ASSET PURCHASE AGREEMENT AND PLAN OF REORGANIZATION
This Asset Purchase Agreement ("Agreement") is made as of February 29, 1996
to be effective as of the 1st day of March, 1996, by, between and among UCI
Medical Affiliates, Inc., a Delaware corporation ("UCI"), UCI Medical Affiliates
of South Carolina, Inc., a South Carolina corporation and wholly owned
subsidiary of UCI ("UCI of SC"), Doctor's Care, P.A., a South Carolina
professional corporation ("Doctor's Care"), Carolina Examination Services, Inc.,
a South Carolina corporation ("Seller"), and Robert Borucki, M.D.
("Borucki").
INTRODUCTION. Seller owns and operates a medical practice located at 1714
Providence Street, Columbia, South Carolina 29204 ("Premises"). Borucki is the
sole shareholder of Seller. UCI of SC owns and/or leases various medical-related
facilities and equipment in South Carolina and has contracted with Doctor's Care
to provide health care services at such facilities. Seller and/or Borucki
desires to (i) transfer Seller's patient records to Doctor's Care, (ii) enter
into an employment agreement between Doctor's Care and Borucki dated as of March
1, 1996, and (iii) transfer to UCI of SC as of 12:01 a.m. on March 1, 1996 (the
"Effective Date") certain assets of the Seller upon the terms and conditions set
forth herein. This Agreement provides for the transfer of the Assets
(hereinafter defined) from Seller to UCI of SC.
The parties hereto desire the reorganization to comprise in general the
conveyance by Seller to UCI of SC of substantially all of the assets of Seller,
the issuance by UCI to Seller of shares of UCI's voting common stock, the
assumption by UCI of SC of certain accounts payable of Seller, the distribution
by Seller to its shareholder of the shares of UCI voting common stock received
by Seller, and the dissolution of Seller, all upon and subject to the terms and
conditions of the agreement hereinafter set forth.
AGREEMENT. NOW, THEREFORE, in consideration of these premises and the
mutual covenants hereinafter set forth, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree as follows:
1. SALE OF ASSETS TO UCI OF SC.
1.1 Transfer of Assets. At the Closing, for the consideration herein
provided, Seller shall convey, transfer, assign and deliver, or cause to be
conveyed, transferred, assigned, and delivered, to UCI of SC, and UCI of SC
shall purchase and accept from Seller, all of Seller's right, title, and
interest (as the case may be) in and to following assets (collectively
"Assets"):
1.1.1 All of the machinery, equipment, computer and telephone
systems (including hardware and software), furniture, furnishings, office
equipment, customer and patient lists, 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 and certain leases
existing at the Closing which are specifically itemized in Exhibit B
attached hereto. Seller shall be responsible for obtaining the necessary
consents, if any, to assignment of such intangible assets. The parties
hereto acknowledge and agree that Seller shall not assume any equipment
leases, personal property leases or real property leases other than such
leases set forth on Exhibit B attached hereto.
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.
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1.2 Method of Transfer. The transfer and sale of the Assets will be
evidenced by appropriate Bills of Sale, assignments and other instruments
executed and delivered by Seller and/or Borucki to UCI of SC and/or Doctor's
Care at Closing, 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.
1.4 Possession. UCI of SC shall take, and Seller shall deliver, possession
of the Assets at completion of Closing (as defined below) to be effective as of
the Effective Date (as defined below).
2. TRANSFER OF SELLER'S PATIENT RECORDS TO DOCTOR'S CARE.
2.1 Transfer of Patient Records. At Closing, for and in consideration of
Ten ($10.00) Dollars and no other consideration, Seller and Borucki shall
transfer and deliver to Doctor's Care all of Borucki and Seller's right, title
and interest in and to any medical records in their possession that were made in
treating Seller's 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 G, executed and delivered by Seller and Borucki to Doctor's
Care at Closing, 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, to be effective as of
the Effective Date (as defined below).
3. CONSIDERATION FOR ACQUISITIONS.
3.1 Purchase Price. The purchase price ("Purchase Price") for the Assets
shall be payable as follows:
3.1.1 Common Stock. UCI shall issue to Seller certificates
representing such numbers of shares of the Voting Common Stock of UCI,
$0.05 par value (the "Shares"), having an aggregate value of One Hundred
Thousand ($100,000) Dollars. For purposes hereof, the price per share of
the Shares shall be the closing ask price on the date immediately prior to
the Closing. 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:
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,
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THAT SUCH REGISTRATION IS NOT REQUIRED AND THAT SUCH TRANSFER WILL
NOT VIOLATE ANY APPLICABLE STATE SECURITIES LAWS.
3.1.2 Assumption of Certain Accounts Payable. UCI of SC shall
assume, as of the Effective Date, certain accounts payable of Seller, not
to exceed a cumulative aggregate total, with respect to these two accounts
payable, of Twenty-Five Thousand ($25,000.00) Dollars. Seller shall be
responsible for obtaining the necessary consents, if any, to the assignment
of such accounts, all as set forth on Exhibit H.
3.1.3 Contingent Additional Payment. If the cumulative aggregate
total of the accounts payable assumed by UCI of SC as more fully described
in Section 3.1.2 hereof is less than Twenty-Five Thousand ($25,000.00)
Dollars, UCI of SC shall pay to Seller at Closing the sum of cash equal to
the difference between Twenty-Five Thousand Dollars and the cumulative
aggregate total of the accounts payable which UCI of SC has assumed in
Section 3.1.2 above.
4. CLOSING.
4.1 Closing Date. The closing of the sale and purchase of the Assets and
related transactions ("Closing") shall take place on February 29, 1996,
commencing at 5:30 p.m. (local time), at the offices of Nexsen Pruet Jacobs &
Pollard, LLP located 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). 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. The effective date for the transactions contemplated
herein shall be March 1, 1996 (the "Effective Date").
4.2. Transactions at Closing. At the Closing:
4.2.1 Upon receipt of an investment letter in the form of Exhibit
C attached hereto duly executed by Seller and Borucki, UCI shall issue to
Seller a certificate evidencing the Shares pursuant to Section 3.1.1. If
such certificate is not available at Closing, UCI will provide Seller with
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 Seller and Borucki shall 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 shall deliver to Seller and Borucki the documents,
agreements and instruments in form and substance required by this
Agreement, as described in Section 4.4.
4.2.4 Borucki and Doctor's Care shall each deliver to the other
the employment agreement substantially in the form of Exhibit D attached
hereto (the "Employment Agreement").
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.
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4.2.6 The Parties will take such other actions contemplated at
Closing by this Agreement.
4.3 Seller and Borucki's Documents. At Closing, Seller and Borucki 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 An Investment Letter substantially in the form attached
hereto as Exhibit C to UCI.
4.3.4 A bill of sale for the Patient Records to Doctor's Care
substantially in the form attached hereto as Exhibit G.
4.3.5 The Employment Agreement substantially in the form attached
hereto as Exhibit D to Doctor's Care.
4.3.6 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 Seller's
and/or Borucki's clear and marketable title to the Assets.
4.3.7 Copy of all current data, contracts and information for the
Business.
4.3.8 Certified Resolutions of the directors and shareholders of
Seller authorizing the transaction contemplated herein.
4.4 Documents of UCI, UCI of SC or Doctor's Care. At Closing UCI, Doctor's
Care and/or UCI of SC shall deliver or cause to be delivered to Seller or
Borucki (as the case may be), at their expense, the following duly executed,
lawful, and effective documents and instruments:
4.4.1 UCI will deliver a certificate evidencing the Shares, or if
such certificate is not available, a copy of the instructions which UCI
will forward to its transfer agent instructing such agent to issue a
certificate evidencing the Shares to Seller.
4.4.2 Doctor's Care will deliver the Employment Agreement
substantially in the form attached hereto as Exhibit 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),
or leases, if any, which remain outstanding which have been assumed by UCI of
SC.
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
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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 Taxes. Seller shall file such tax returns and reports and
pay such taxes as are required for periods ending with the day before the
Effective Date.
4.6.4 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,
except for all liabilities specifically assumed by UCI of SC hereunder.
4.6.5 Miscellaneous Required Acts. The parties hereto shall take
such other actions and comply with other obligations as are required after
Closing under this Agreement or under documents ancillary hereto.
4.7 Other Actions. The parties hereto agree that they will at any time and
from time to time do, execute, acknowledge and deliver, or will cause to be
done, executed, acknowledged and delivered, all such further acts, deeds,
assignments, transfers, conveyances, documents, instruments and assurances as
may be reasonably required by the other party in order to carry out fully and to
effectuate the transactions herein contemplated under, and in accordance with,
the provisions of this Agreement.
5. REPRESENTATIONS AND WARRANTIES OF SELLER AND BORUCKI. Seller and Borucki
hereby jointly and severally warrant, represent, and covenant as follows:
5.1 Authority. Seller is a corporation duly organized, validly existing and
in good standing under the laws of the State of South Carolina. Seller has full
power and authority to execute this Agreement and to consummate the transactions
contemplated hereby. When executed and delivered, this Agreement shall
constitute valid and binding obligations of Seller and Borucki enforceable in
accordance with its terms and conditions. Neither the execution nor the delivery
of this Agreement nor the consummation of the transactions contemplated hereby,
nor the compliance with any of the terms and conditions hereof, will result in
the breach by Seller or Borucki of any of the terms, conditions, or judgment,
law or other contract, agreement or instrument to which Seller or Borucki is
bound, or constitute a default of such indenture, mortgage, deed of trust,
order, judgment, law or other contract, agreement or instrument.
5.2 Compliance with Laws. Seller is in compliance with all laws,
ordinances, and regulations that govern such Seller's ownership and present use
of the Assets, the violation of which would have an adverse effect on the Assets
or the Business. All of the Assets sold hereunder substantially comply with
applicable environmental, zoning health, OSHA, consumer products, and fire
safety regulations.
5.3 Title to Assets. At Closing, Seller will have, and shall be entitled to
convey, good, marketable and insurable title to the Assets and the condition of
title as required by Section 4.5. At Closing, Seller will not be indebted to any
contractor, laborer, mechanic, material man or any other person or entity for
work, labor, materials or services in connection with the Assets for which any
such person or entity could claim a lien against the Assets. To the best of
Seller's knowledge, there is not pending or threatened condemnation or eminent
domain action respecting the Assets.
5.4 Consents. No consent of any third party is required in connection with
Seller's transfer and assignment of the Assets hereunder.
5.5 Litigation. There are no judicial or administrative actions or
proceedings pending, or to the best of Seller's and/or Borucki's knowledge,
threatened that question the validity of this Agreement or any transaction
contemplated hereby or that relate to the Assets, or to the conduct of Business,
including but not limited to condemnation or bankruptcy proceedings, which if
adversely determined would have an adverse effect upon Seller's and/or Borucki's
ability to enter into this Agreement or perform its obligations hereunder or
upon the use, enjoyment, or value of the Assets for UCI of SC and/or Doctor's
Care.
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5.6 Insurance Coverage. Buyer maintains policies of insurance covering the
Assets in amounts and against such losses and risks as are customary for
facilities such as the Business in their present usage, as well as general
public liability "occurrence" coverage in the amount of $1,000,000 per
occurrence and $1,000,000 in the aggregate, and same will be outstanding and
duly in force through Closing. For a period of one (1) year after Closing,
Seller shall maintain a comprehensive general liability "occurrence" policy for
discontinued operations in the amount of $200,000 per occurrence, and UCI of SC
shall be listed as an additional insured under such policy.
5.7 Normal Course. Seller shall have operated the Assets in the normal and
ordinary course of business since at least January 1, 1992, 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 prior to the Closing. Seller shall
exercise its best efforts to preserve the goodwill of the employees, patients,
suppliers and others having business relationships with the Business through
Closing.
5.8 Creditors, Solvency, and Bankruptcy. Seller and Borucki shall not
hinder, delay, defraud, or avoid any obligation to any past present or future
creditor in the transactions contemplated by this Agreement. Seller is currently
solvent and will not be rendered insolvent as a result of the transactions
contemplated hereby. Seller has not initiated, nor does it intend to initiate
with respect to itself as debtor, has had initiated or expects to have initiated
against it as debtor, any proceeding under federal or any state's bankruptcy,
insolvency or similar laws.
5.9 Labor and Employee Benefit Matters. Seller is not a party to any
agreement with any labor organization. Seller has not maintained or sponsored
for any employee or former employee of Seller any fringe or benefit plans,
including without limitation, any retirement, pension, profit sharing,
thrift-savings, non-qualified deferred compensation, incentive compensation,
stock bonus, stock option (qualified or non-qualified), cash bonus, employee
stock ownership (including, without limitation, payroll related employee stock
ownership), insurance, medical, welfare or vacation plans of any kind and any
"employee benefit plan" (as defined in Section 3(3) of Title I of the Employment
Retirement Income Security Act of 1974, as amended ("ERISA") or any voluntary
employees' beneficiary association (as defined in Section 501(c) (9) of the
Internal Revenue Code) or combination of the foregoing. Seller has not incurred
any accumulated funding deficiency within the meaning of ERISA or any liability
to the Pension Benefit Guaranty Corporation established under ERISA, nor has any
tax been assessed against Seller for the alleged violation of the Internal
Revenue Code with respect to the Business or its operation.
5.10 Payables and Taxes. Seller will pay all accounts payable and taxes,
assessments, and charges respecting the Assets for which Seller remains or
becomes responsible in 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 and which affect the Assets. Seller has paid all taxes, license
fees or other charges levied, assessed or imposed upon the Business and any of
the Assets, except those not yet due and payable; Seller will, however, pay all
taxes incurred or accruing up to the Effective Date, whether same are payable at
that date or not, including (without limitation) Ad Valorem, payroll, sales and
other taxes due, incurred, or livable as of the Effective Date.
5.11 Workers' Compensation. There are no worker compensation or similar
claims or actions pending or threatened, and Seller and/or Borucki does not know
of facts which would make such claims timely, by past or present employees of
Seller.
5.12 Status of Assets. The Assets sold hereunder constitute substantially
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
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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, provided however that the parties hereto
acknowledge that Seller shall retain Seller's cash and accounts receivable.
5.13 No Adverse Conditions. Except as previously disclosed in writing to
UCI of SC, there are no adverse conditions or circumstances that may interfere
with the use and enjoyment of, or opportunity to resell or encumber, any of the
Assets, or might otherwise impede UCI of SC's ability to operate a business
similar to the Business utilizing the Assets.
5.14 Brokerage. Neither Seller nor Borucki has dealt with any broker in
connection with this transaction, and no brokerage commission nor claim thereof
shall accrue or become payable to any person or entity respecting this
transaction.
5.15 Disclosures. To the best of Seller's and Borucki's knowledge, all
information and data furnished by Seller and/or Borucki to UCI, UCI of SC or
Doctor's Care with respect to the Assets and the Business will be materially
true, correct, and complete, and not materially misleading.
5.16 Representations and Warranties at Closing. Except as expressly
otherwise permitted in this Agreement, the representations and warranties of
Seller and/or Borucki 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 of Buyer. UCI, Doctor's Care and UCI of SC each have taken
all corporate action necessary to approve and authorize 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 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 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
constitutive document, or of any material indenture, mortgage, deed of trust,
order, judgment, law, or other contract, agreement or instrument to which either
of them is a party, or by which either is bound, or constitute a default of such
indenture, mortgage, deed of trust, order, judgment, law, or other contract,
agreement or instrument.
6.3 Brokerage. Neither UCI, Doctor's Care, nor UCI of SC has dealt with any
broker in connection with this transaction, and no brokerage commission nor
claim therefor shall accrue or become payable to any person or entity respecting
this transaction.
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6.4 Consents. No consent of any third party is required in connection with
the purchase and acceptance of the Assets
from Seller hereunder.
6.5 Litigation. There are no judicial or administrative actions or
proceedings pending, or to the best knowledge of UCI, Doctor's Care or UCI of
SC, threatened that question the validity of this Agreement or any transaction
contemplated hereby, which if adversely determined would have a material adverse
effect upon their ability to enter into this Agreement or perform their
respective obligations hereunder.
6.6 Creditors, Solvency and Bankruptcy. UCI, Doctor's Care or UCI of SC
shall not hinder, delay, defraud or avoid any obligations to any past, present
or future creditor of UCI, Doctor's Care or UCI of SC respectively in the
transactions contemplated by this Agreement. The above-mentioned parties are
currently solvent and will not be rendered insolvent as a result of the
transactions contemplated hereby. UCI, Doctor's Care or UCI of SC does not
intend to initiate with respect to itself as a debtor, nor do they expect to
have initiated against it as a debtor, 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 at
the Effective Date as though such representations and warranties were made on
such date, unless they reference a specific earlier date whereupon, at Effective
Date, they shall be true as at the earlier date referenced.
7. CONDITIONS PRECEDENT.
7.1 Conditions of UCI, UCI of SC and Doctor's Care. The obligations of UCI,
UCI of SC and Doctor's Care hereunder shall be subject, to the extent not
waived, to the satisfaction of each of the following conditions at the Closing:
7.1.1 Representation and Warranties. The representations and
warranties of Seller and Borucki 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.
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.
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9. INDEMNITY RIGHTS.
9.1 General Indemnity. Seller and Borucki shall jointly and severally
indemnify and hold UCI, Doctor's Care and UCI of SC and their respective
officers, directors and agents harmless, from any and all losses, damages,
liabilities, claims, suits, demands, penalties, assessments, obligations, causes
of actions or costs (including reasonable litigation expenses and legal fees)
asserted against or incurred by UCI, Doctor's Care or UCI of SC as a result of
any breach by Seller and/or Borucki of any covenant, warranty representation, or
agreement, made by Seller and/or Borucki herein or in agreements related hereto
including but not limited to litigation expenses and legal fees that might be
incurred because of such breach.
9.2 Special Indemnities. Seller and Borucki shall jointly and severally
indemnify and hold UCI, UCI of SC and Doctor's Care and their respective
officers, directors, and agents harmless from any and all losses, damages,
liabilities, claims, suits, demands, penalties, assessments, obligations, causes
of action, or costs (including reasonable litigation expenses and legal fees)
asserted against or incurred by UCI, Doctor's Care, or UCI of SC as a result of:
9.2.1 Award or Settlement. Any lawsuit or similar claim against
Seller and/or Borucki 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 pursuant to the Agreement.
9.2.3 Accounts Payable. Any accounts payable, taxes,
assessments, or charges of Seller and/or Borucki.
9.3 Set Off and Recoupment. In addition to any other available remedies,
UCI of SC, UCI, and Doctor's Care shall have the right of set off and recoupment
against amounts coming due to Seller or Borucki under this Agreement, Employment
Agreement, or any other instruments ancillary hereto in the event Seller
breaches this Agreement or any right of indemnification arises in favor of UCI,
UCI of SC, or Doctor's Care under this Agreement. Seller and Borucki retain the
right to lawfully contest any such set off or recoupment in an action to collect
any amounts due Seller and/or Borucki under this Agreement, Employment
Agreement, or such other ancillary instruments. The inclusion of this special
set off or recoupment provision shall not effect the availability, if any, of
rights of set off or recoupment arising at law or in equity.
10. EXISTING LIABILITIES. Except as set forth in Section 3.1.2 hereof, neither
UCI, Doctor's Care nor UCI of SC assumes any, and hereby expressly disclaims
all, obligations or liabilities of Seller, contingent or absolute, including
(without limitation) liabilities for (i) federal or state income, payroll,
property, or sales taxes for any period, or (ii) any tort, contract, or
statutory liability resulting from or alleged to have resulted from the Business
prior to the Effective Date or operations of Seller prior to Effective Date,
except for the obligations arising and maturing after the Effective Date to
perform under those contracts expressly assumed by UCI of SC hereunder. All
property taxes assessed against the Assets sold 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 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 or any substantial part thereof,
Seller shall promptly notify UCI of SC that such damage, destruction, or action
has occurred and the estimated extent thereof. In case the amount of such
damage, destruction, condemnation or eminent domain is in excess of 10% of the
Purchase Price, including but not limited to the value of the Shares more fully
described in Section 3.1, of all of the Assets immediately before such damage or
destruction, then UCI of SC must within five (5) days of receipt of such notice
either:
15
11.1 Termination. Terminate this Agreement by giving Seller written notice
of such termination and thereupon all parties shall be released of all further
liability to the others; or
11.2 Adjustment. Alternatively, and subject to the fulfillment of the
conditions set forth herein, require the consummation of the transactions
provided for in this Agreement and, in such case (or in case of any damage by
fire or other casualty, or condemnation or eminent domain action not entitling
UCI of SC to terminate this Agreement), all proceeds of insurance covering the
Assets and all of the claims arising as a result of such damage or destruction
to such Assets or all proceeds of such condemnation or eminent domain action for
such Assets shall become the property of UCI of SC. In the event UCI of SC
elects to require the consummation of the transactions contemplated herein,
Seller shall not compromise or settle any such claim or action at any time
without the written consent of UCI of SC which shall not be unreasonably
withheld. Seller shall cooperate with the collection of such amounts. Further,
in such event, the representations and warranties of Seller and Borucki, as set
forth in Section 5 shall be modified equitably to account for such claim or
action. In this regard, Seller represents and warrants that the face amount of
the subject fire and casualty insurance exceeds 10% of the Purchase Price,
including the value of stock more fully described in Section 3.1.
12. MISCELLANEOUS.
12.1 Entire Agreement. This Agreement, including the Exhibits hereto,
embodies the entire Agreement and understanding between the parties hereto as to
the matters herein addressed and supersedes all prior agreements and
understandings relating to the subject matter hereof.
12.2 No Waiver. No failure to exercise, and no delay in exercising any
right, power or remedy hereunder or under any document delivered pursuant hereto
shall impair any right, power or remedy which the parties hereto may have, nor
shall any such delay be construed to be a waiver of any such rights, powers or
remedies, or any acquiescence in any breach or default under this Agreement, nor
shall any waiver of any breach or default of any party hereunder be deemed a
wavier of any default or breach subsequently occurring.
12.3 Survival. All representations, warranties, covenants, and agreements
herein contained shall survive the Closing hereunder.
12.4 Amendment. No provision of this Agreement or any document or
instrument relating to the Agreement, may be amended, modified, supplemented,
changed, waived, discharged, or terminated, unless the parties hereto consent
thereto in writing.
12.5 Notices. All notices, requests, approvals, consents, demands and other
communication provides for or permitted hereunder shall be in writing, signed by
an authorized representative of the sender and addressed to the respective party
at the address set forth below:
UCI of SC: UCI Medical Affiliates of South Carolina, Inc.
6168 St. Andrews Road
Columbia, SC 29212-3132
Attn.: M.F. McFarland, III, MD
UCI: UCI Medical Affiliates, Inc.
6168 St. Andrews Road
Columbia, SC 29212-3132
Attn.: M.F. McFarland, III, MD
Doctor's Care: Doctor's Care, P.A.
6168 St. Andrews, Road
Columbia, SC 29212-3132
Attn.: M.F. McFarland, III, MD
16
Seller: Carolina Examination Services, Inc.
1714 Providence Street
Columbia, SC 29204
Attn: Robert Borucki, M.D.
Borucki: Robert Borucki, M.D.
1714 Providence Street
Columbia, SC 29204
A party hereto may change its respective address by notice in writing given to
the other parties to this Agreement. Any notice, request, approval, consent,
demand or other communication shall be effective upon the first to occur of the
following; (i) when delivered to the party to whom such notice, request,
approval, consent, demand or the communication is being given, or (ii) five (5)
business days after being duly deposited in the US mail, certified, return
receipt requested.
12.6 Severability of Provisions. In case any one or more of the provisions
contained in this Agreement should be invalid, illegal or unenforceable in any
respect, the validity, legality and enforceability of the remaining provisions
contained herein shall not in any way be affected or impaired thereby.
12.7 Successors and Assigns. This Agreement shall be binding upon the
parties, and their respective successors, heirs, and assigns, and shall inure to
the benefit of the parties and their respective successors, heirs, and permitted
assigns.
12.8 Counterparts. This Agreement may be executed in any number of
counterparts, all of which taken together shall constitute one Agreement, and
any party hereto may execute this Agreement by signing any such counterpart. The
authorized attachment of counterpart signature pages shall constitute execution
by the parties.
12.9 Choice of Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of South Carolina.
12.10 Jurisdiction. The parties hereto consent to jurisdiction, subject to
proper service of process, in the State of South Carolina regarding any disputes
arising hereunder.
12.11 Usage. The section and paragraph headings contained in this Agreement
are for reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement. Terms such as "hereof" , "hereunder",
"hereto", "herein", and words of similar import shall refer to this Agreement in
its entirety and all references to "Articles", "Paragraphs", "Sections", and
similar cross references shall refer to specified portions of this Agreement,
unless the context clearly requires otherwise.
12.12 Further Instruments and Acts. From time to time at a party's request,
whether at or after Closing and without further consideration, the other
party(ies) shall execute and deliver such further instruments of conveyance,
transfer and assignment and upon reimbursement for actual reasonable
out-of-pocket expenses take such other action as the requesting party reasonably
may require to more effectively convey and transfer to the requesting party the
properties to be conveyed, transferred and assigned hereunder, and, if
necessary, will assist the requesting party in the collection or reduction to
possession of such property. In addition, each party agrees to provide
reasonable access to records respecting the Business as are requested by the
other party(ies) for proper purpose with good cause shown (subject to
appropriate confidentiality agreements to be negotiated as such time) and agree
to reasonably cooperate in resolving any matters resulting from the transactions
contemplated hereby.
12.13 Assignment. This Agreement is not assignable by any party without the
prior written consent of the other parties hereto.
17
IN WITNESS WHEREOF, the parties have executed this Asset Purchase Agreement
under seal, with the corporate parties acting by and through their duly
authorized offers, effective as of the date first above written.
UCI:
UCI MEDICAL AFFILIATES, INC.
By: /s/ Stephen S. Seeling
Its: Chief Operating Officer and Counsel
UCI of SC:
UCI MEDICAL AFFILIATES OF SOUTH
CAROLINA, INC.
By: /s/ Stephen S. Seeling
Its: Chief Operating Officer and Counsel
DOCTOR'S CARE:
DOCTOR'S CARE, P.A.
By: /s/ Stephen S. Seeling
Its: Secretary
SELLER:
CAROLINA EXAMINATION SERVICES, INC.
By: /s/ Robert Borucki, M.D.
Its: President
BORUCKI:
/s/ Robert Borucki, M.D.
Robert Borucki, M.D.
18
EXHIBITS TO ASSET PURCHASE AGREEMENT
AND
PLAN OF REORGANIZATION
(EXHIBIT 2.1)
EXHIBIT NO. DESCRIPTION PAGE NUMBER
Exhibit A List of Assets 20
Exhibit B Leases to be Assumed 21
Exhibit C Investment Letter 22
Exhibit D Employment Agreement 25
Exhibit E Bill of Sale 33
Exhibit F Assignment and Assumption Agreement 35
Exhibit G Bill of Sale - Medical Records 37
Exhibit H Accounts Payable 38
19
EXHIBIT A
LIST OF ASSETS
Computer, Monitor, UPS
Laser Printer
Fax Machine
Mita Copier
Large White Refrigerator
Scales
Desk/Chair Combination
New Chairs (10) Plus Chair in Doctor's Office
Black Side Open File Cabinet
Two Short Tan File Cabinets
Audiometer
Pulmonary Function Tester
Respirator Fit Testing Unit
RBT IV
Wood Examining Table
One Stool
One Gooseneck Ex Light
20
EXHIBIT B
LEASES TO BE ASSUMED
None.
21
EXHIBIT C
INVESTMENT LETTER
TO: UCI Medical Affiliates, Inc.
6168 St. Andrews Road
Columbia, SC 29160
Attn: President
RE: Issuance of Common Stock in UCI Medical Affiliates, Inc.
Dear Sir:
On this date, you are issuing to Carolina Examination Services, Inc., a
South Carolina corporation ("Transferee"), Twenty-Four Thousand Two Hundred
Forty-Three (24,243) shares (the "Shares") of the common stock, $0.05 par value,
of UCI Medical Affiliates, Inc. (the "Company"). In consideration of your
agreement to issue the Shares to Transferee, Transferee and Robert Borucki,
M.D., the sole shareholder of Transferee ("Borucki"), hereby represent and
warrant to you and hereby covenant and agree with you, as follows:
Transferee is acquiring the Shares solely for Transferee's own
account and not as nominee for, representative of, or otherwise on behalf of any
other person or entity. Transferee is acquiring the Shares with the intention of
holding the Shares for investment purposes only, and Transferee has no present
intention of participating, directly or indirectly, in a subsequent sale,
transfer or other distribution of the Shares, or of dividing Transferee's
interest in the Shares with any other person or entity, other than the transfer
of the Shares to Borucki as a result of the dissolution of Transferee.
Transferee has not offered any of the Shares for sale or other disposition, and
Transferee shall not make any sale, transfer or other disposition of the Shares
in violation of state or federal law.
Borucki is an "accredited investor" as that term is defined in
Rule 501 of Regulation D promulgated by the Securities and Exchange Commission
("SEC") under the Securities Act of 1933 (the "Act"). NOTE: An "accredited
investor" includes any individual who: (a) has a net worth (with spouse) in
excess of $1,000,000; (b) has had an individual income in excess of $200,000 (or
joint income with spouse in excess of $300,000) in each of the two most recent
years and who reasonably expects an income of the same level for the current
year; or (c) is an executive office or director of the Company. (For purposes of
this paragraph, calculate net worth as the sum of the fair market value of all
assets, including all real estate, automobiles, savings, stocks, bonds,
individual retirement accounts, pension and profit sharing plans, limited
partnership interest and other investments, less all current and long term
liabilities).
The Transferee and Borucki, each considers itself to be a
sophisticated investor in companies similarly situated to the Company, and
Transferee and Borucki have such knowledge and experience in financial and
business matters as to be capable of evaluating the merits and risks of the
prospective investment in the Shares. Transferee and Borucki understands that
there is no public market for the Shares, no public market for the Shares is
likely to develop and it may not be possible for Transferee to readily liquidate
its investment. Transferee and Borucki are aware that Transferee's investment in
the Company is speculative and involves a high degree of risk of loss arising
from, among other things, substantial market, operational, competitive and other
risks, and having made their own evaluation of the risks associated with this
investment.
The Shares were not offered to Transferee by means of any form of
general or public solicitation or general advertising, or publicly disseminated
advertisements or sales literature, including (a) any advertisement, article,
notice, or other communication published in any newspaper, magazine, or similar
media, or broadcast over television or radio or (b) any seminar or meeting to
which Transferee was invited by any of the foregoing means of communications.
Borucki's investment in the Shares is reasonable and consistent
with the nature and size of its present investments and net worth, Borucki has
no need for liquidity in the investment represented by the
22
Shares, and Borucki is financially able to bear the economic risk of this
investment, including the ability to afford holding the Shares for an indefinite
period of time and to afford a complete loss of this investment.
Transferee is aware that the Company may offer and sell additional
shares of common stock in the future, thereby diluting its percentage equity
ownership of the Company.
Transferee understands that as a publicly traded company, the
Company files with the SEC various reports, including quarterly and annual
financial statements, annual reports to shareholders, and proxy statements, and
that all of such reports, statements and information are available to the
public, including Transferee, from the SEC and directly from the Company.
Transferee has been given the opportunity to obtain copies of such public
information and to ask questions of, and receive answers from, you with respect
to the Company and the Shares, concerning the terms and conditions of the
issuance of the Shares by you to Transferee, and has been given the opportunity
to obtain such additional information necessary to verify the accuracy of any
information provided to Transferee by you in order for Transferee to evaluate
the merits and risks of an investment in the Shares to the extent that you
possess such information or could acquire it without unreasonable effort or
expense. Transferee has been furnished with all information concerning the
Shares and the Company that Transferee desires.
In regard to any economic or legal considerations related to the
Shares, Transferee has relied on the advice of, or consulted with, only
Transferee's own advisors, and Transferee has not relied upon you, the Company,
the Company's legal counsel or the accountants for the Company regarding the
Shares or the transaction contemplated by this Investment Letter.
Transferee understands and acknowledges that the issuance of the
Shares to Transferee was not registered under the Act or under the securities
laws of any state in reliance upon an exemption or exemptions contained in the
Act (and the regulations promulgated thereunder) and applicable state securities
laws. Consequently, Transferee understands that the Shares cannot be
subsequently transferred unless they are registered under the Act and applicable
state securities laws, or unless an exemption from such registration
requirements is available. Transferee understands and acknowledges that any
certificate evidencing the Shares will bear a legend restricting the transfer of
such Shares consistent with the foregoing, and Transferee understands that a
notation may be made in the stock records of the Company restricting the
transfer of any of the Shares in a manner consistent with the foregoing.
Transferee understands and acknowledges that neither the Company
nor you are under any obligation to register the Shares for public sale or to
comply with the conditions of Rule 144 promulgated by the SEC under the Act or
to take any other action necessary in order to make available any exemption for
the subsequent transfer of the Shares without registration.
Transferee is a South Carolina corporation, and its principal
place of business is located in the State of South Carolina at the address shown
under its signature evidencing its execution of this Investment Letter, and it
has no present intention of removing itself from its existing state of residence
other than its dissolution.
Transferee confirms that the representations it has previously
made to the Company and those contained in this Investment Letter are correct
and complete as of the date hereof, and that if there should occur any material
change in such representations prior to the receipt of the Shares by Transferee,
it agrees that it will immediately furnish such revised or corrected
representations or information to the Company.
This Investment Letter shall be binding upon the Transferee and the
Transferee's heirs, executors, administrators, successors, representatives and
assigns and shall enure to the benefit of you, your heirs, executors,
administrators, successors and assigns. This Investment Letter shall be governed
and construed in accordance with the laws of the State of South Carolina.
23
TRANSFEREE:
Number of Shares of CAROLINA EXAMINATION SERVICES, INC.
UCI Medical Affiliates, Inc.
to be issued:
By: /s/ Robert Borucki, M.D.
Robert Borucki, M.D.
24,243 Shares Its: President
Date: March 1, 1996 181 Aspen Trail
(Street Address)
Columbia, South Carolina 29206-4978
(City, State, Zip)
BORUCKI:
/s/ Robert Borucki, M.D.
Robert Borucki, M.D.
181 Aspen Trail
(Street Address)
Columbia, South Carolina 29206-4978
(City, State, Zip)
24
EXHIBIT D
EMPLOYMENT AGREEMENT
STATE OF SOUTH CAROLINA )
) EMPLOYMENT AGREEMENT
COUNTY OF RICHLAND )
THIS AGREEMENT made and entered into this 29th day of February, 1996 to be
effective as of this 1st day of March 1996, between Doctor's Care, P. A.
(hereinafter "Employer"), a South Carolina professional association with its
principal office in Columbia, South Carolina, and Robert Borucki, MD
(hereinafter "Employee").
WHEREAS, Employee is the sole shareholder of Carolina Examination Services,
Inc., a South Carolina corporation ("CES").
WHEREAS, as of the date hereof, CES sold substantially all its assets to
UCI Medical Affiliates of South Carolina, Inc., a South Carolina corporation
("UCI of SC"), pursuant to that certain Asset Purchase Agreement by and among
CES, UCI of SC, Employer, Employee, and UCI Medical Affiliates, Inc., a Delaware
corporation (the "Purchase Agreement").
WHEREAS, UCI of SC has contracted with Employer to provide health care
services at medical facilities that are owned or leased by UCI of SC.
WHEREAS, Employer is a South Carolina professional association and wishes
to employ the Employee to render medical services for it on a part-time basis.
WHEREAS, Employee is a licensed physician in South Carolina and desires and
is willing to become a professional employee of Employer, in accordance with the
following terms, conditions, and provisions:
NOW, THEREFORE, for and in consideration of the promises herein and other
valuable consideration, it is agreed that:
(1) Employment Term. Subject to the provisions for termination as
hereinafter provided, the term of Employee's employment hereunder shall be one
(1) year beginning March 1, 1996. After the initial one (1) year term,
Employee's employment hereunder shall be renewable from year to year unless
either party hereto delivers to the other party hereto written notice prior to
the termination of the existing term of such party's desire not to renew
Employee's employment hereunder.
(2) Duties.
(A) Employee shall devote his professional skill and attention to
the performance of services for Employer. These duties shall include but not be
limited to providing consultative, marketing, and professional services for
CES's former and potential clients and patients, and for Employer's on-site and
Occupational Medicine practice including but not limited to in person and
telephone solicitations and marketing meetings with clients and prospective
clients. The location of Employee's worksite shall be selected by Employer.
Employee's work schedule for Employee, as determined by Employer taking into
account if reasonably possible Employee's scheduling conflicts, shall average
sixteen (16) hours per month.
(B) Employee will actively and industriously pursue his profession
in Employer's interest, will faithfully adhere to the principles and ethics of
the profession, and will carefully avoid any and all personal acts, habits and
usages which might injure in any way, directly or indirectly, Employer's
professional reputation or that of any other employee of Employer, or which
might otherwise be detrimental to any interest of Employer.
(C) Employee hereby agrees that all fees received or collected as
a result of the services rendered by Employee hereunder, together with all other
emoluments, e.g., witness fees, report fees, speaker fees, etc., shall be the
property of Employer. Accordingly, Employee acknowledges that Employee's
25
employment does not confer upon Employee any ownership interest in or
professional claim upon any fees charged by Employer for Employee's services,
whether said fees are collected during Employee's employment or after
termination thereof.
(3) Compensation.
(A) Regular Compensation. For all services rendered under this
Agreement, Employer shall pay the Employee an initial salary of Twelve Thousand
& 00/100 Dollars ($12,000.00) per year payable in bi-weekly installments, unless
otherwise requested by Employee and approved by Employer.
(B) Changes in Compensation. From time to time, increases in the
Employee's salary may be made, said increases to be reflected on the "Schedule
of Compensation" attached hereto and made apart hereof; provided however nothing
contained herein shall be construed to require Employer to increase Employee's
salary.
(C) Bonuses. Employer may from time to time review Employee's
compensation arrangement with respect to the payment of a bonus for superior
performance and contributions to Employer. Factors to be considered in making a
bonus payment, if any, shall include but not be limited to Employee's
demonstrated commitment to quality care, the results of patient satisfaction
surveys and patient audits, Employee's ability to build and enhance a patient
base, and Employee's contribution to the Employer's accomplishment of company
goals; provided however that the decision to make bonus payments, if any, shall
be at the sole discretion of Employer.
(4) Fringe Benefits. As further consideration for the performance by
Employee of the services set forth herein, Employee shall be eligible on a
non-discriminatory basis for participation in any tax qualified deferred
compensation plan maintained by Employer and also for inclusion in any
group-term life insurance plan maintained by Employer, provided the Employee is
deemed an eligible employee under such plans. However, Employee understands that
the decision to maintain any such plans shall be in sole discretion of Employer.
(5) Inability to Perform Services. If Employee is unable to perform the
services contemplated by this Agreement as a result of illness or incapacity,
Employee shall continue to receive for a period of one (1) month those Employee
benefits, if any, provided for Employee by Employer hereunder, but Employee
shall not receive the Regular Compensation set forth in Section 3(A) hereof
during the period of such incapacity. Anything to the contrary contained herein
notwithstanding if Employee is not able to resume the performance of such duties
within one (1) month and one day (1) of the date Employee was first unable to
perform such duties, Employee may be deemed, at the sole discretion of the
Employer, to have terminated Employee's employment hereunder, and Employer shall
have the right to pursue all remedies set forth herein related to such a
termination.
(6) Facilities. Employer shall provide and pay for office space and
facilities, furniture, fixtures, equipment, supplies, employees and assistants
necessary and appropriate for the proper performance of the duties of Employee.
(7) Employee Death. If Employee dies while this Agreement is in full force
and effect, Employer shall pay to Employee's named beneficiary, or in default of
the named beneficiary to Employee's estate, all salary accrued but unpaid
through the pay period which includes the date of Employee's death.
(8) Patients and Records. Employer and Employee agree that all patient
lists, records, and charts for patients treated by Employee hereunder are the
property of Employer, and that upon termination of Employee's employment
hereunder, Employee shall not be entitled to receive any patient lists, records,
or charts whether or not the Employee shall have seen or attended any patient
with which such terms are covered; provided however, that record keeping for
patients treated by Employee shall be the sole responsibility of Employee, and
Employee shall complete all such charts and records for such patients in
accordance with professional standards.
(9) Policy Decisions. It is understood that Employer shall have the sole
and exclusive right of management over the Employer's practice, including
without limitation, the determination of the professional standards to be
observed, the determination of the fees to be charged, and the determination of
the office hours to be maintained.
26
(10) Conditions of Termination. Employee understands and agrees that cause
for termination of employment hereunder includes, but is not limited to the
following:
(A) At any time by mutual agreement in writing between Employer
and Employee.
(B) Upon the occurrence of any of the following, Employer in its
sole discretion may elect to terminate Employee's employment hereunder: (i) at
the loss or the suspension of the right to conduct the practice of medicine by
Employee, or the loss, or suspension of any right or privilege necessary or
incident thereto, or (ii) the loss, suspension, or limitation of Employee's
Controlled Substance license, or (iii) if Employee performs any negligent or
intentional act which directly or indirectly damages the reputation or property
of Employer.
(C) At the death of Employee, provided however, that the
provisions of this Agreement regarding Employee's death shall be performed by
the Employer.
(D) At the option of the Employer, upon thirty (30) days prior
written notice for "good cause", which shall mean failure of Employee to provide
the agreed duties hereunder or willful violation by Employee of any of the terms
of this Agreement.
(E) Upon a party hereto failing to perform and cure any covenant
or condition hereunder within thirty (30) days after written notice and demand,
the non-defaulting party may terminate Employee's employment hereunder.
(F) Upon the bankruptcy, insolvency or assignment for the benefit
of the creditors of Employer, or any other type of voluntary or involuntary
creditors proceeding involving the property of Employer, Employee may elect to
terminate Employee's employment hereunder.
(G) Upon Employee's failure to satisfactorily comply with accepted
standards of medical practice and professional conduct, Employer, in its sole
discretion, may elect to terminate Employee's employment hereunder.
(H) If Employee engages in the abuse of drugs, intoxicants or
other mood-altering substances or if Employee treats or attempts to treat a
patient while under the influence of drugs, intoxicants or other mood-altering
substances, Employer, in its sole discretion, may elect to terminate Employee's
employment hereunder.
(I) Upon thirty days notice, Employer, in its sole discretion, may
elect to terminate Employee's employment hereunder if Employee does not satisfy
the credentialing requirements of the managed care and other plans with which
Employer participates.
(11) Non-Disclosure of Information. Employee shall not, at any time after
the date hereof, directly or indirectly, divulge or disclose for any purpose
whatsoever any confidential information that has been developed or obtained by,
or disclosed to, Employee by Employer at any time or after the date hereof
(exclusive of such information as is in the public domain). Employee
acknowledges that such confidential information is of a special and unique
nature and value relating to matters of Employer's business, including, without
limitation, Employer's patents, copyrights, proprietary information, trade
secrets, trademarks, systems, procedures, manuals, confidential reports,
records, operational expertise, locations and lists of clients and patients and
potential clients and patients, pricing information and lists, marketing
materials and methods, the nature and type of services rendered by Employer, the
methods used and preferred by Employer's clients and patients, and the fees paid
by them (all of which are deemed for all purposes to be confidential,
proprietary, and trade secrets of Employer). Any confidential information in
Employee's possession shall be returned to Employer upon any termination or
expiration of Employee's employment hereunder.
(12) Covenants Against Competition.
(A) Representations.
The parties hereto acknowledge that CES has conducted an
occupational medical practice for a substantial number
of years, and Borucki has been an officer, director, sole shareholder, and
employee of CES since CES's incorporation in 1991. Thereby, Borucki has made use
of, acquired, and
27
added to confidential and proprietary information and trade secrets of Seller,
all of which are portions of the Assets of CES (which Assets are being sold to
UCI of SC pursuant to the Purchase Agreement). Borucki also has developed unique
relationships with customers, patients, suppliers, and employees of CES and
unique information and knowledge about the competitive market, locations,
potential patients and customers, processes and prospects of CES's business. UCI
of SC and/or Employer intends to operate the Assets acquired from CES for UCI of
SC and Doctor's Care's business similar to CES's business. The value of UCI of
SC's acquisition would be diminished in the event that Borucki were to compete
with UCI of SC and/or Employer, to assist another person or entity to compete
with Buyer and/or Doctor's care, or to wrongfully divulge any confidential
information.
UCI of SC and Employer have required, as a condition
precedent to its purchase of such Assets pursuant to the Purchase Agreement,
that Borucki covenant not to divulge any confidential information and not to
compete with UCI of SC and/or Doctor's Care as set forth herein. Borucki has
agreed to provide such covenants as set forth herein as a material inducement to
UCI of SC and Employer to enter into and close the Purchase Agreement and in
consideration of the payments to be made thereunder. Borucki's covenants
contained herein are ancillary to the Purchase Agreement. Borucki acknowledges
that he will benefit from the Purchase Agreement.
(B) Customers. During the term of Borucki's employment hereunder,
and for a period of three (3) years after the termination of Borucki employment
hereunder for any reason, Borucki shall not, directly or through an Affiliate
(as defined below), (i) provide medical care or services (including but not
limited to occupational medical services) (or assist another person or entity to
provide medical care or services to) to any Customer (as hereinafter defined),
or (ii) solicit or divert (or assist another person or entity to solicit or
divert) any Customer from purchasing or using any of UCI of SC's and/or
Employer's services. For purposes of this Section, the term "Customer" shall
mean any patient, client or customer of CES and shall include (without
limitation) every such person or employer to which CES has provided medical
and/or occupational services prior to the date hereof. Notwithstanding the
foregoing, Borucki shall not be deemed to be in violation of any covenant
contained herein as a result of Borucki's providing emergency care to any
Customer in a potentially life-threatening situation.
(C) Employees. In addition to (but not in limitation of) the
restrictions of Sections 12(B), during the term of Borucki's employment
hereunder, and for a period of three (3) years after the termination of Borucki
employment hereunder for any reason, Borucki shall not, directly or through an
Affiliate (as defined below) solicit or in any manner attempt to solicit or
induce any person employed by, or an agent of, UCI of SC or Employer to
terminate such person's association or contract of employment or agency, as the
case may be, with UCI of SC and/or Employer.
(D) Definition of Affiliate. For purposes of this Agreement, an
"Affiliate" of Borucki is a Person (as defined below) that directly, or
indirectly through one or more intermediaries, controls, or is controlled by, or
is under common control with Borucki. For purposes of this Agreement, a "Person"
includes, in addition to such person, all of the following persons: (i) any
relative or spouse of such person, or any relative of such spouse, any one of
whom has the same home as such person; (ii) any trust or estate in which such
person or any of the persons specified in Section 12(D)(i) of this Agreement
collectively own ten percent (10%) or more of the total beneficial interest, or
of which any of such persons serve as trustee, executor or in any other
capacity; and (iii) any corporation, partnership, limited liability company or
other organization in which such person or any of the persons specified in
Section 12(D)(i) of this Agreement are the beneficial owners collectively of ten
percent (10%) of any class of equity securities, of the equity interest, or of
the partnership interest.
(13) Remedies.
(A) Accounting for Lost Profits. If Borucki shall violate any of
the provisions of Sections 11 or 12 hereof, UCI of SC and/or Employer shall be
entitled to recover any non-speculative lost profits incurred by UCI of SC
and/or Employer as a result of, growing out of, or in connection with, any such
violation by Borucki. This remedy shall be in addition to, and not in limitation
of, any injunctive relief or other rights, remedies, or damages, to which UCI of
SC and/or Employer is or may be entitled as a result of this Agreement.
(B) Injunctive Relief. In the event of a breach or threatened
breach by Borucki of any of the provisions of Sections 11 or 12, UCI of SC and
Employer, in addition to, and not in limitation of, any
28
other rights, remedies, or damages available to UCI of SC or Employer at law or
in equity, shall be entitled to a temporary restraining order, preliminary
injunction, and permanent injunction in order to prevent or restrain any such
breach by Borucki or by Borucki's partners, agents, representatives, servants,
employers, employees, companies, consulting clients, and/or any and all persons
directly or indirectly acting for or with Borucki. Borucki agrees that in the
event of any breach by Borucki of the covenants set forth in this Agreement,
Buyer shall suffer irreparable harm for which the remedy of monetary damages may
be inadequate.
(C) Set Off. In the event of any adjudicated breach by Borucki
of this Agreement or the Purchase Agreement, in addition to the other rights or
remedies to which Employer and/or UCI of SC may be entitled, UCI of SC and
Employer shall be entitled, at its option, to set off and recoup against the
payments becoming due pursuant to the Purchase Agreement the amounts to which
UCI of SC and/or Employer may become entitled. Borucki's right to lawfully
contest such set off or recoupment in any action to collect the amounts due
hereunder shall not be impaired by UCI of SC or Employer's exercise of such set
off or recoupment right.
(D) Alternatives/Survival. Buyer shall have the option, in its
sole discretion, to enforce the various restrictions of Sections 11 and 12
cumulatively, in the alternative, or consecutively. The terms of Sections 11,
12, and 13 hereof shall survive the termination of Employee's employment
hereunder.
(E) Reasonableness of Restrictions. Borucki has carefully read and
considered the provisions of Sections 11, 12, and 13, and, having done so,
voluntarily agrees that the restrictions set forth in those Sections, including,
but not limited to, the time period of restriction, and the scope of restricted
activities set forth in Section 12, are fair and reasonable and are reasonably
required for the protection of the legitimate interests of UCI of SC and
Employer, and its parent or subsidiary corporations, partnerships, officers,
directors, partners, employees and affiliates, including but not limited to UCI
Medical Affiliates, Inc. In the event that, notwithstanding the foregoing, any
of the provisions of Sections 11, 12, or 13 or any parts thereof shall be held
to be invalid or unenforceable, the remaining provisions or parts thereof shall
nevertheless continue to be valid and enforceable as though the invalid or
unenforceable portions or parts had not been included therein. In the event that
any provisions of Sections 11 or 12 relating to the time period and/or the areas
of restriction and/or the scope of restricted activities and/or related aspects
shall be declared by a court of competent jurisdiction to exceed the maximum
restrictiveness such court deems reasonable and enforceable, the time period
and/or areas of restriction and/or the scope of restricted activities and/or
related aspects deemed reasonable and enforceable by the court shall become and
thereafter be the maximum restriction in such regard, and the restriction shall
remain enforceable to the fullest extent deemed reasonable by such court.
(14) Burden and Benefit. This Agreement shall be binding upon Employer's
successors and assigns and Borucki's heirs, personal and legal representatives,
successors and assigns, and shall inure to the benefit of Buyer's successors and
permitted assigns and Borucki's heirs, personal legal representatives,
successors, and permitted assigns. The terms of this agreement are intended to
benefit UCI of SC.
(15) Modifications. This Agreement can only be modified by a written
agreement duly signed by Borucki and an authorized representative of Buyer.
Moreover, in order to avoid uncertainty, ambiguity and misunderstandings in
their relationships, the parties hereto covenant and agree not to enter into any
oral agreement or understanding inconsistent or in conflict with this Agreement;
and the parties hereto further covenant and agree that any oral communication
allegedly or purportedly constituting such an agreement or understanding shall
be absolutely null, void and without effect.
(16) Waiver. Any waiver by either party of any breach or any term or
condition hereof shall be effective only if in writing and such writing shall
not be deemed to be a waiver of any subsequent or other breach, term or
condition of this Agreement.
(17) Assignments. Neither this Agreement nor any rights hereunder may be
assigned or otherwise transferred by Borucki.
29
(18) Cumulative Remedies. All rights and remedies of a party hereunder
shall be cumulative and in addition to such rights and remedies as may be
available to a party at law or equity.
(19) Venue and Jurisdiction. The parties hereto hereby (i) agrees that any
litigation, action or proceeding arising out of or relating to this Agreement
may be instituted in a state or federal court located in Richland County, South
Carolina, (ii) waives any objection which it might have now or hereafter to any
such litigation, action, or proceeding based upon improper venue or inconvenient
forum, and (iii) irrevocably submits to the jurisdiction of such courts in any
such litigation, action or proceeding. For all purposes of this Agreement, the
parties hereto further agrees that service of process may be effected pursuant
to United States mail.
(20) Entire Agreement. This Agreement constitutes the entire agreement
between the parties with respect to the subject matter hereof and supersedes all
prior contemporaneous written or oral agreements and representations between the
parties with respect thereto.
(21) Governing Law. The construction and interpretation of this Agreement
shall at all times and in all respects be governed by the laws of the State of
South Carolina.
(22) Severability. The invalidity or unenforceability or any provision of
this Agreement shall not render invalid or unenforceable any other provision
hereof.
(23) Survival. All terms of this Agreement shall survive the Closing under
the Purchase Agreement.
(24) Usage. Capitalized terms used herein which are not otherwise defined
herein shall have the meanings ascribed to them in the Purchase Agreement. The
section and paragraph headings contained in this Agreement are for reference
purposes only and shall not affect in any way the meaning or interpretation of
this Agreement. Terms such as "hereof", "hereunder", "hereto", "herein", and
words of similar import shall refer to this Agreement in its entirety and all
references to "Paragraphs", "Sections", and similar cross references shall refer
to specified portions of this Agreement, unless the context clearly requires
otherwise.
(25) Enforcement. In the event litigation or other legal proceedings are
commenced to enforce any rights under this Agreement, all reasonable legal
expenses (including reasonable attorney's fees) and other direct costs of
litigation of the prevailing party shall be paid by the non-prevailing party.
All remedies specified herein are cumulative and non-exclusive, and parties
shall be entitled to seek or enforce any other rights or remedies available to
them at law or in equity.
(26) Notices. Any notice, request, approval, consent, demand or other
communication shall be effective upon the first to occur of the following: (i)
upon receipt by the party to whom such notice, request, approval, consent,
demand or other communication is being given; or (ii) three (3) business days
after being duly deposited in the United States certified mail, return receipt
requested, and addressed as follows:
Employer: Doctor's Care, P.A.
6168 St. Andrews Road
Columbia, South Carolina 29212
Attn.: Stephen Seeling, Esquire
Employee: Robert Borucki, M.D.
181 Aspen Trail
Columbia, South Carolina 29206-4978
The parties hereto may change their respective addresses by notice in writing
given to the other party to this Agreement.
30
IN WITNESS WHEREOF, the parties have executed this Agreement on the date
first set forth above.
EMPLOYER:
DOCTOR'S CARE, P.A.
By: /s/ Stephen S. Seeling
Its: Secretary
EMPLOYEE:
/s/ Robert Borucki, M.D.
Robert Borucki, MD
31
SCHEDULE OF COMPENSATION
Agreed To
Date Change Effective New Annual Salary Employer Employee
32
EXHIBIT E
BILL OF SALE
KNOW ALL MEN BY THESE PRESENTS, that CAROLINA EXAMINATION SERVICES, INC., a
South Carolina corporation with offices at 1714 Providence Street, Columbia,
South Carolina 29204 (the "Seller"), for and in consideration of the sum of Ten
Dollars ($10.00), lawful money of the United States, and other good and valuable
consideration to them in hand paid at or before the ensealing and delivery of
these presents by UCI MEDICAL AFFILIATES OF SOUTH CAROLINA, INC., a South
Carolina corporation with offices at 6168 St. Andrews Road, Columbia, South
Carolina 29212 (the "Buyer"), the receipt and sufficiency whereof is hereby
acknowledge, has bargained and sold and by these presents does sell, assign and
transfer unto Buyer all of Seller's right, title and interest in and to, all the
machinery, equipment, computers, telephone systems, inventory, furniture,
furnishings, office equipment, customer and patients lists, and other tangible
personal property composing portions of the Assets described in the Asset
Purchase Agreement dated as of March 1, 1996, between Seller, Buyer, UCI Medical
Affiliates, Inc., Doctor's Care, P.A., and Robert Borucki, M.D.(the
"Agreement"), all as provided in the Agreement.
TO HAVE AND TO HOLD the same unto Buyer, its successors and assigns,
forever. AND Seller does for itself and its successors and assigns, covenant and
agree to and with Buyer, its successors and assigns, to warrant and defend the
sale and conveyance of the aforesaid assets hereby sold unto Buyer.
This Bill of Sale is made, executed and delivered pursuant to the
Agreement, and is subject to all of the terms, provisions, and conditions
thereof, including (without limitation) the indemnification therein. To the
extent of any conflict between the terms hereof and thereof, the terms of the
Agreement shall be controlling.
All capitalized terms not otherwise defined herein shall have the meanings
ascribed to them in the Agreement unless the context clearly requires otherwise.
IN WITNESS WHEREOF, Seller has duly executed this Bill of Sale as of this
29th day of February, 1996, to be effective as of the 1st day of March, 1996.
IN THE PRESENCE OF: CAROLINA EXAMINATION SERVICES, INC.
(CORPORATE SEAL)
/s/ Julian Hennig, III By: /s/ Robert Borucki, M.D.
(Witness) Its: President
/s/ Mark D. Bower
(Witness)
33
STATE OF SOUTH CAROLINA )
) PROBATE
COUNTY OF RICHLAND )
PERSONALLY APPEARED before me the undersigned witness who, after first
being duly sworn, deposes and says that s/he saw the within named CAROLINA
EXAMINATION SERVICES, Inc., by Robert Borucki, M.D., its President, sign, seal
and, as its act and deed, deliver the within written Bill of Sale for the uses
and purposes therein mentioned and that s/he with the other witness whose
signature appears above, witnessed the execution thereof.
SWORN to before me this 29th
day of February, 1996. /s/ Mark D. Bower
Witness
/s/ Julian Hennig, III (L.S.)
Notary Public for South Carolina
My Commission Expires: 1-10-2000
34
EXHIBIT F
ASSIGNMENT AND ASSUMPTION AGREEMENT
KNOW ALL MEN, that CAROLINA EXAMINATION SERVICES, INC., a South Carolina
corporation (the "Assignor"), for and in consideration of the sum of Ten Dollars
($10.00), lawful money of the United States, and other good and valuable
consideration to it in hand paid at or before the ensealing and delivery of
these presents, by UCI MEDICAL AFFILIATES OF SOUTH CAROLINA, INC., a South
Carolina corporation ("Assignee"), the receipt and sufficiency whereof is hereby
acknowledged, hereby assigns to Assignee all of Assignor's right, title and
interest in and to the permits, licenses, computer software, and all other
intangible assets and rights composing portions of the Assets as described in
the Asset Purchase Agreement dated as of March 1, 1996, between Assignor,
Assignee, UCI Medical Affiliates, Inc., Doctor's Care, P.A., and Robert Borucki,
M.D. (the "Agreement"), all as provided in the Agreement, plus the equipment
leases set forth on Schedule 1 attached hereto.
Assignee hereby covenants with Assignor to assume and faithfully perform
and discharge all of the terms, covenants, liabilities and obligations (subject
to the Agreement) maturing and to be performed or discharged by Assignor under
the above assigned contracts beginning on the date hereof and henceforth.
This Assignment is made, executed, and delivered pursuant to the Agreement,
and is subject to all the terms, provisions and conditions thereof, including
(without limitation) the mutual indemnifications therein. To the extent of any
conflict between the terms hereof and thereof, the terms of the Agreement shall
be controlling.
All capitalized terms not otherwise defined herein shall have the meanings
ascribed to them in the Agreement unless the context clearly requires otherwise.
IN WITNESS WHEREOF, the parties have duly executed this Assignment and
Assumption Agreement as of this 29th day of February, 1996, to be effective as
of the 1st day of March, 1996.
ASSIGNOR:
CAROLINA EXAMINATION SERVICES, INC.
By: /s/ Robert Borucki, M.D.
Its: President
ASSIGNEE:
UCI MEDICAL AFFILIATES OF SOUTH CAROLINA, INC.
By: /s/ Stephen S. Seeling
Its: Chief Operating Officer and Counsel
35
SCHEDULE 1
Equipment Leases To Be Assumed
None.
36
EXHIBIT G
BILL OF SALE - MEDICAL RECORDS
KNOW ALL MEN BY THESE PRESENTS, that Robert Borucki, M.D. and Carolina
Examination Services, Inc., a South Carolina corporation (collectively the
"Grantor"), for and in consideration of the sum of Ten and no/100 Dollars
($10.00), and other good and valuable consideration to it in hand, paid at or
before the ensealing and delivery of these presents, by Doctor's Care, P.A., a
South Carolina professional association ("Grantee"), the receipt, sufficiency
and adequacy of which is hereby acknowledged and subject to the terms hereof,
has bargained and sold and by these presents does sell, assign, transfer,
remise, release and quitclaim unto the said Grantee, its successors and assigns,
all of the Grantor's right, title and interest in and to the following goods and
chattels:
All Patient Records owned by Grantor with respect to Grantor's
medical practice at 1714 Providence Street, Columbia, South
Carolina 29204
TO HAVE AND TO HOLD the same unto said Grantee, its successors and assigns
forever.
IN WITNESS WHEREOF, this Bill of Sale has been executed by Grantor as of
this 29th day of February, 1996, to be effective as of the 1st day of March,
1996.
WITNESSES: CAROLINA EXAMINATION SERVICES, INC.
/s/ Julian Hennig, III By: /s/ Robert Borucki, M.D.
Its: President
(SEAL)
/s/ Mark D. Bower
/s/ Robert Borucki, M.D.
Robert Borucki, M.D.
(SEAL)
/s/ Julian Hennig, III
/s/ Mark D. Bower
37
EXHIBIT H
ACCOUNTS PAYABLE
February 1996
COMPANY BILL PAYMENT BALANCE
- ------------------------------------ ------------------ -------------------- ------------------------
Brian Center 2600.00 1300.00 1300.00
LabCorp 3204.65 0.00 3204.65
Accu-Lab 5735.00 0.00 5735.00
Smith-Kline 11740.01 0.00 11740.01
SCE&G 496.17 0.00 496.17
Bell South 892.33 0.00 892.33
GTE 60.80 0.00 60.80
City of Columbia 81.95 0.00 81.95
MMI 70.00 0.00 70.00
Doctor's Care 0.00 0.00 0.00
Hawthorne Pharm 0.00 0.00 0.00
Incendra Inc. 0.00 0.00 0.00
Med Arts 0.00 0.00 0.00
McWaters 157.50 0.00 157.50
Physicians Sales 0.00 0.00 0.00
Page South 75.40 0.00 75.40
Durr Medical 0.00 0.00 0.00
Palmetto Fam. Med. 0.00 0.00 0.00
Sellars & Bauk. 625.00 0.00 625.00
AT&T 30.87 0.00 30.87
Occupational Med 38.86 0.00 38.86
Smith Drug(*) 728.16 0.00 728.16
Ray's Sprays 0.00 0.00 0.00
Prentice Hall 0.00 0.00 0.00
Total Lawn Care 0.00 0.00 0.00
White Rock Pharm. 0.00 0.00 0.00
------------------ -------------------- ------------------------
TOTALS $26,536.70 $1,300.00 $25,236.70
================== ==================== ========================
(*) $236.70 of the liability will stay with CES. $491.46 of the liability is
assumed by UCI.
These total liabilities assumed equals exactly $25,000.00, if UCI assumes the
liabilities to the amounts shown above.
38