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 And Plan Of Reorganization ("Agreement") is
made to be effective as of the 11th day of June, 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"); Wateree Emergency Specialists, P.A.,
a South Carolina professional corporation d/b/a Wateree Medical Center
("Seller"); Elaine B. Baxley, M.D. ("Baxley"); Ronald P. Hargrave, M.D.
("Hargrave"); Guy B. Kahler, M.D. ("Kahler"); and Emergency Medicine
Specialists, P.A., a South Carolina professional corporation ("EMS").
INTRODUCTION. Seller owns and operates a medical practice located at 1060
Highway 1 South, Lugoff, South Carolina 29078 ("Premises"). Baxley, Hargrave,
and Kahler (collectively the "Shareholders" or "Landlord") are the owners of the
Premises. The Shareholders are the sole shareholders, officers, and directors of
Seller. UCI of SC owns and/or leases various medical-related facilities and
equipment in South Carolina and has contracted with Doctor's Care to provide
health care services at such facilities. Seller desires to (i) transfer Seller's
patient records to M.F. McFarland, M.D., and (ii) transfer to UCI of SC as of
11:59 p.m. on June 11, 1996 (the "Effective Date") substantially all the assets
of the Seller in exchange for certain shares of voting common stock of UCI in a
transaction the parties intend will qualify as a reorganization under Section
368(a)(1)(C) of the Internal Revenue Code of 1986, all upon the terms and
conditions set forth herein. In connection herewith, EMS will enter into a
Physician Services Agreement between Doctor's Care and EMS, all upon the terms
and conditions set forth herein.
AGREEMENT. NOW, THEREFORE, in consideration of these premises and the
mutual covenants hereinafter set forth, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree as follows:
1. SALE OF ASSETS TO UCI OF SC.
1.1 Transfer of Assets. At the Closing (as defined below), for the
consideration herein provided, Seller shall convey, transfer, assign and
deliver, or cause to be conveyed, transferred, assigned, and delivered, to UCI
of SC, and UCI of SC shall purchase and accept from Seller, all of Seller's
right, title, and interest (as the case may be) in and to following assets
(collectively "Assets"):
1.1.1 All of the accounts receivable, cash, cash accounts,
machinery, equipment, computer and telephone systems (including hardware
and software), inventory, furniture, furnishings, office equipment, and
related tangible personal property respecting Seller's business conducted
in the Premises (the "Business"), including (without limitation) the items
described in Exhibit A attached hereto. In no event shall the assets of the
"Women's Clinic" located as a tenant-at-will in the Premises, or the
personal assets of the Shareholders, be conveyed hereunder.
1.1.2 All of the goodwill, permits, licenses, computer software
(to the extent assignable) and related intangible personal property of the
Business and certain equipment leases existing at the Closing (as defined
below) which are specifically itemized in Exhibit B attached hereto. Seller
shall be responsible for using reasonable effort to obtain the necessary
consents, if any, to assignment of such intangible assets. The parties
hereto acknowledge and agree that UCI of SC shall not assume any equipment
leases, personal property leases, real property leases, or any other
liabilities of Seller or any Shareholder other than such liabilities, if
any, set forth on Exhibit B attached hereto. As to the liabilities, if any,
set forth on Exhibit B, UCI of SC hereby agrees to assume all obligations
thereunder as of the Effective Date.
1.1.3 All of the inventory of the Business, wherever located.
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1.1.4 All of Seller's repair and service contracts and warranties
(which are acceptable to UCI of SC in its sole discretion) used or useful
in the Business.
1.2 Method of Transfer. The transfer and sale of the Assets will be
evidenced by appropriate Bills of Sale, assignments and other instruments
executed and delivered by Seller and/or the Shareholders to UCI of SC and/or
Doctor's Care and/or M. F. McFarland, M.D. at Closing (as defined below), as set
forth in this Agreement.
1.3 Not a Sale of Business. This transaction constitutes the sale of assets
by Seller and not the sale of a business; provided, however, that anything
contained in this Agreement to the contrary notwithstanding, it is the intent of
the parties that UCI of SC purchase and acquire and Seller sell and transfer the
complete operating process of the Business and all properties and interest
necessary to operate the Business substantially as it is presently being
operated.
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 M.F. MCFARLAND, M.D.
2.1 Transfer of Patient Records. Immediately prior to Closing (as defined
below), for and in consideration of Ten ($10.00) Dollars and no other
consideration, Seller and the Shareholders shall transfer and deliver to M.F.
McFarland, M.D. all of the Seller's and each Shareholder's right, title and
interest in and to any medical records in their possession that were made in
treating patients and all records transferred to Seller concerning prior
treatment of any patient (the "Patient Records").
2.2 Method of Transfer. The transfer of the Patient Records will be
evidenced by an appropriate bill of sale substantially in the form attached
hereto as Exhibit C, executed and delivered by Seller and the Shareholders to
M.F. McFarland, M.D.
at the Closing (as defined below), as set forth in this Agreement.
2.3 Notices. Seller shall cause any public notices to be filed in a timely
manner and to otherwise comply with all requirements of the Physician's Patient
Records Act or any other applicable law, regulation, rule or ordinance related
to the transfer of the Patient Records.
2.4 Possession. M.F. McFarland, M.D. shall pick up and take, and Seller
shall relinquish, possession of the Patient Records at Closing (as defined
below), to be effective as of the Effective Date.
3. CONSIDERATION FOR ACQUISITIONS.
3.1 Purchase Price. The purchase price ("Purchase Price") for the Assets to
be acquired by UCI of SC shall be Six Hundred Seventy-Five Thousand and No/100
($675,000.00) 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 Six Hundred Thousand and No/100 ($600,000.00) Dollars. For
purposes hereof, the price per share of the Shares shall be the average of
the closing bid prices for such voting common stock for each business day
during the period commencing sixteen (16) business days immediately prior
to the Effective Date and ending on the business day immediately prior to
the Effective Date. 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). SEC Rule 144
will allow Seller to resell the Shares in the public market if certain
conditions contained therein are satisfied. 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:
(1) The sum of Fifteen Thousand and No/100 ($15,000.00) Dollars
shall be paid to Seller at Closing (as defined below).
(2) The sum of Sixty Thousand and No/100 ($60,000.00) Dollars
shall be due and payable in four (4) equal monthly installments,
with the first payment due on or before July 10, 1996, pursuant to
a promissory note substantially in the form attached hereto as
Exhibit D (the "Note").
4. CLOSING.
4.1 Closing Date. The closing of the sale and purchase of the Assets and
related transactions (the "Closing") shall take place on June 11, 1996,
commencing at 4:00 p.m. (local time), at the offices of Nexsen Pruet Jacobs &
Pollard, LLP, Suite 1500, 1441 Main Street, 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
E attached hereto duly executed by Seller and each Shareholder, 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 each Shareholder shall execute and deliver to UCI
of SC or Doctor's Care, as applicable, the bills of sale, assignments,
titles, certificates, and other documents, agreements and instruments, in
form and substance required by this Agreement, as described in Section 4.3.
4.2.3 UCI of SC and Doctor's Care shall execute and deliver to
Seller and the Shareholders the documents, agreements and instruments in
form and substance required by this Agreement, as described in Section
4.4..
4.2.4 Landlord and UCI of SC shall each execute and deliver to the
other a Lease for the Premises substantially in the form of Exhibit F
attached hereto (the "Lease").
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4.2.5 EMS and Doctor's Care shall each execute and deliver to the
other the physician services agreement substantially in the form of Exhibit
G attached hereto (the "Physician Services Agreement").
4.2.6 Each Shareholder shall execute and deliver to UCI of SC a
non-competition covenant substantially in the form of Exhibit H attached
hereto (the "Non-Compete").
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 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. In the event UCI of
SC employs one or more employees of Seller, UCI of SC shall credit each
such employee with the accrued vacation set forth in the schedule attached
hereto as Exhibit L, and shall waive any requirement that such employee be
employed by UCI of SC or Doctor's Care for a certain period set forth in
any employee handbook of UCI of SC prior to the commencement of such
vacation.
4.2.8 The parties hereto will take such other actions contemplated
at Closing by this Agreement.
4.3 Seller, Shareholders, EMS's Documents. At Closing, Seller, each
Shareholder, and EMS shall deliver or cause to be delivered, at Seller's
expense, the following duly executed, lawful and effective documents and
instruments to which they are a party respectively:
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 I 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
J to UCI of SC.
4.3.3 An Investment Letter substantially in the form attached
hereto as Exhibit E to UCI.
4.3.4 The Lease substantially in the form attached hereto as
Exhibit F to UCI of SC.
4.3.5 The Physician Services Agreement substantially in the form
attached hereto as Exhibit G to Doctor's Care.
4.3.6 A Non-Compete executed by each Shareholder in the form
attached hereto as Exhibit H to UCI of SC.
4.3.7 Seller will deliver to UCI of SC copies of such duly filed
UCC termination statements, mortgages or lien satisfactions and other documents,
as are reasonably required by UCI of SC to evidence UCI of SC's clear,
marketable and insurable title to the Assets.
4.3.8 Copy of all current data, contracts and information for the
Business.
4.3.9 Certified Resolutions of the directors and shareholders of
Seller authorizing the transaction contemplated herein.
4.4 Documents of UCI, UCI of SC or Doctor's Care. At Closing, UCI, Doctor's
Care and/or UCI of SC, at their expense, shall deliver or cause to be delivered
to Seller or the Shareholders (as the case may be) the following duly executed,
lawful, and effective documents and instruments:
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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 Physician Services Agreement
substantially in the form attached hereto as Exhibit G.
4.4.3 UCI of SC will deliver the Note substantially in the form
attached hereto as Exhibit D.
4.4.4 UCI of SC shall deliver the Security Agreement in the form
attached hereto as Exhibit M.
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 which remain outstanding which have been expressly 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 Trade Name. Seller shall discontinue use of the trade names
"Wateree Medical Center" and shall make same available to UCI of SC or its
assigns if requested by UCI of SC.
4.6.3 Restrictions Against Competition. For a period of three (3)
years after Closing, Seller shall not own, operate, or establish, in
competition with UCI of SC or Doctor's Care, an urgent care, family care,
or industrial and occupational medical business within a fifty-mile radius
of the Premises, the location of the Business conducted with the Assets
acquired by UCI of SC hereunder. Seller acknowledges and agrees that this
restriction is reasonably related to the value of the Assets sold to UCI of
SC and Doctor's Care hereunder and that the scope of this restriction is
reasonable in time and territory.
4.6.4 Confidentiality. Seller and each Shareholder shall hold in
confidence all documents and information concerning the Business and the
Assets (except that Seller may, after reasonable notice to UCI of SC
disclose such documents and information, or copies or summaries thereof, to
any governmental authority reviewing the transactions contemplated hereby
or as required in Seller's reasonable judgment pursuant to federal or state
laws or court order).
4.6.5 Publicity. Upon UCI of SC's request (if any), at a date
reasonably agreed upon by UCI of SC and Seller, but no later than thirty
(30) business days after to Closing, Seller shall mail, at UCI of SC's
expense, 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.
4.6.6 Taxes. Seller shall file such tax returns and reports and
pay such taxes as are required for periods ending with the Effective Date.
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4.6.7 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.
4.6.8 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 SHAREHOLDERS. Seller and each
Shareholder hereby jointly and severally warrant, represent, and covenant as
follows:
5.1 Authority. Seller is a corporation duly organized, validly existing and
in good standing under the laws of the State of South Carolina. The Shareholders
are the sole shareholders of Seller. The Shareholders are the sole directors of
Seller. Seller has full power and authority to execute this Agreement and to
consummate the transactions contemplated hereby. When executed and delivered,
this Agreement shall constitute valid and binding obligations of Seller and the
Shareholders enforceable in accordance with its terms and conditions except as
enforcement may be limited by applicable bankrupt, insolvency or similar laws
effecting creditors rights generally and by principles of equity. Neither the
execution nor the delivery of this Agreement nor the consummation of the
transactions contemplated hereby, nor the compliance with any of the terms and
conditions hereof, will result in the breach by Seller or any Shareholder of any
of the terms, conditions, or judgment, law or other contract, agreement or
instrument to which Seller or any Shareholder is bound, or constitute a default
of such indenture, mortgage, deed of trust, order, judgment, law or other
contract, agreement or instrument.
5.2 Compliance with Laws. Seller is in compliance with all laws,
ordinances, and regulations that govern such Seller's ownership and present use
of the Assets and the Premises, the violation of which would have an adverse
effect on the Assets, the Premises or the Business. All of the Assets sold
hereunder, and the Premises leased hereunder, substantially comply with
applicable environmental, zoning, health, OSHA, consumer products, and fire
safety regulations.
5.3 Title to Assets. At Closing, Seller will have, and shall be entitled to
convey, good, marketable and insurable title to the Assets and the condition of
title as required by Section 4.5. At Closing, Seller will not be indebted to any
contractor, laborer, mechanic, material man or any other person or entity for
work, labor, materials or services in connection with the Assets and/or Premises
for which any such person or entity could claim a lien against the Assets or the
Premises.
5.4 Consents. No consent of any third party is required in connection with
Seller's transfer and assignment of the Assets hereunder.
5.5 Litigation. There are no judicial or administrative actions or
proceedings pending, or to the best of Seller's and/or each Shareholder's
knowledge, threatened that question the validity of this Agreement or any
transaction contemplated hereby or that relate to the Assets or the Premises, or
to the conduct of Business, including but not limited to condemnation or
bankruptcy proceedings, which if adversely determined would have an adverse
effect upon Seller's and/or any Shareholder's ability to enter into this
Agreement or perform its obligations hereunder or upon the use, enjoyment, or
value of the Assets and/or the Premises for UCI of SC and/or Doctor's Care.
5.6 Insurance Coverage. Seller maintains policies of insurance covering the
Assets and Premises in amounts and against such losses and risks as are
customary for facilities such as the Business in their
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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 April 14, 1989, and shall have paid
or caused to be paid promptly when due all city, county and state ad valorem
taxes and similar taxes and assessments and all utility charges and assessments
imposed upon or assessed against the Assets and/or Premises prior to the
Closing. Seller shall exercise its best efforts to preserve the goodwill of the
employees, patients, suppliers and others having business relationships with the
Business through Closing.
5.8 Creditors, Solvency, and Bankruptcy. Seller and each Shareholder shall
not hinder, delay, defraud, or avoid any obligation to any past, present or
future creditor in the transactions contemplated by this Agreement. Seller is
currently solvent and will not be rendered insolvent as a result of the
transactions contemplated hereby. Seller has not initiated, nor does it intend
to initiate with respect to itself as debtor, has had initiated or expects to
have initiated against it as debtor, any proceeding under federal or any state's
bankruptcy, insolvency or similar laws.
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. Notwithstanding the
foregoing, the parties hereto acknowledge that Seller is a party to a health
insurance and paid time off employee plan, neither of which is being assumed
hereunder. Nothing contained herein shall be construed to impose any liability
thereunder on UCI, UCI of SC, and/or Doctor's Care.
5.10 Payables and Taxes. Except of specific liabilities expressly assumed
pursuant to Section 1.1.2 hereunder, Seller will pay all accounts payable and
taxes, assessments, and charges respecting the Assets and/or Premises incurring
prior to the Effective Date within a reasonable amount of time following Closing
and will protect the reputation of UCI of SC by promptly paying all the valid
debts and obligations of Seller which have been incurred in connection with the
operation of the Business prior to the Effective Date and which affect the
Assets and/or Premises.
5.11 Workers' Compensation. There are no worker compensation or similar
claims or actions pending or threatened, and Seller and/or each Shareholder does
not know of facts which would make such claims timely, by past or present
employees of Seller.
5.12 Status of Assets. The Assets sold hereunder constitute all of the
assets of the Business and include all property, rights, and intangibles
necessary for UCI of SC and/or Doctor's Care to operate after Closing a business
similar to the Business as presently conducted. All material inventory systems,
machinery, equipment, and other tangible property which are portions of the
Assets are sold "AS IS" hereunder. 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.
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5.13 No Adverse Conditions. Except as previously disclosed in writing to
UCI of SC, there are no adverse conditions or circumstances that may interfere
with the use and enjoyment of, or opportunity to resell or encumber, any of the
Assets, or might otherwise impede UCI of SC's ability to operate a business
similar to the Business utilizing the Assets and the Premises.
5.14 Brokerage. Neither Seller nor any Shareholder has dealt with any
broker in connection with this transaction, and no brokerage commission nor
claim thereof shall accrue or become payable to any person or entity respecting
this transaction.
5.15 Zoning. To the best of Landlord's, Seller's and each Shareholder's
knowledge, the Premises is currently zoned for commercial operations and are in
compliance with applicable zoning laws and ordinances; and Seller and
Shareholders do not know that the status of such zoning is in question or
subject to change by the appropriate governmental authorities.
5.16 Environmental. To the best of Landlord's, Seller's and each
Shareholder's knowledge, the Premises is not now used and have never been used,
as a gasoline station or other site for the storage of petroleum products, or as
a garbage or refuse dump site, a landfill, a waste disposal facility for the
storage, processing, treatment or temporary or permanent disposal of regulated
waste materials, including without limitation solid, industrial, toxic,
hazardous, radioactive, nuclear or putrescible waste or sewage, and, to the best
of Seller's, Landlord's, and each Shareholder's knowledge, is in substantial
compliance with applicable environmental laws. The parties hereto acknowledge
that an x-ray machine is presently used on the Premises and that usual and
customary medical waste is generated by the Business and disposed of by Seller
through licensed medical waste disposal contractors.
5.17 Disclosures. To the best of Seller's and each Shareholder's knowledge,
all information and data furnished by Seller and/or the Shareholders to UCI, UCI
of SC or Doctor's Care with respect to the Assets, the Premises, and the
Business is materially true, correct, and complete, and not materially
misleading; provided however, other than as set forth in this Section 5.17, the
parties hereto do not warrant the accuracy of the financial data of Seller
delivered to UCI of SC in connection with the transaction described hereunder.
Notwithstanding the foregoing, the Shareholder and the Seller jointly and
severally warrant the accuracy (within a ten (10%) percent degree of adjustment)
of the $672,188.00 gross receipts of Seller as set forth on the Seller's 1995
Federal Income Tax Return, a copy of which was delivered to UCI of SC by Seller
in connection with the transaction described herein.
5.18 Representations and Warranties at Closing. Except as expressly
otherwise permitted in this Agreement, the representations and warranties of
Seller and/or each Shareholder set forth in this Agreement shall be true as of
the Effective Date as though such representations and warranties were made on
such date, unless they reference a specific earlier date whereupon, as of the
Effective Date, they shall be true as at the earlier date referenced.
6. REPRESENTATIONS AND WARRANTIES OF UCI, DOCTOR'S CARE AND UCI OF SC. UCI,
Doctor's Care and UCI of SC hereby jointly and severally represent, warrant, and
covenant as follows:
6.1 Organization and Good Standing. UCI is a corporation duly organized,
validly existing, and in good standing under the laws of the State of Delaware
and has full corporate power to carry on its businesses and to own and operate
its properties and assets as presently owned and operated. UCI of SC is a
corporation duly organized, validly existing, and in good standing under the
laws of the State of South Carolina and has full corporate power to carry on its
businesses and to own and operate its properties and assets as presently owned
and operated. Doctor's Care is a professional association duly organized,
validly existing, and in good standing under the laws of the State of South
Carolina and has full corporate power to carry on its businesses and to own and
operate its properties and assets as presently owned and operated.
6.2 Authority. UCI, Doctor's Care and UCI of SC each have taken all
corporate action necessary to approve and authorized the execution of this
Agreement, and to consummate the transactions contemplated hereby. Each of their
respective representatives signing this Agreement has full power and
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authority to execute this Agreement in the indicated capacity and to consummate
the transactions contemplated hereby. When executed and delivered, this
Agreement shall constitute valid and binding obligations of UCI, Doctor's Care
and UCI of SC, enforceable in accordance with its terms and conditions except as
enforcement may be limited by applicable bankrupt, insolvency or similar laws
effecting creditors rights generally and by principles of equity. Neither the
execution nor the delivery of this Agreement nor the consummation of the
transactions contemplated hereby, nor compliance with all of the terms and
conditions hereof, will result in the breach by UCI, Doctor's Care or UCI of SC
of any of the terms, conditions or provisions of any of their respective of
trust, order, judgment, law, or other contract, agreement or instrument to which
either of them is a party, or by which either is bound, or constitute a default
of such indenture, mortgage, deed of trust, order, judgment, law, or other
contract, agreement or instrument.
6.3 Brokerage. Neither UCI, Doctor's Care, nor UCI of SC has dealt with any
broker in connection with this transaction, and no brokerage commission nor
claim therefor shall accrue or become payable to any person or entity respecting
this transaction.
6.4 Consents. No consent of any third party is required in connection with
the purchase and acceptance of the Assets from Seller hereunder.
6.5 Litigation. There are no judicial or administrative actions or
proceedings pending, or to the best knowledge of UCI, Doctor's Care or UCI of
SC, threatened that question the validity of this Agreement or any transaction
contemplated hereby, which if adversely determined would have a material adverse
effect upon their ability to enter into this Agreement or perform their
respective obligations hereunder.
6.6 Creditors, Solvency and Bankruptcy. UCI, Doctor's Care or UCI of SC
shall not hinder, delay, defraud or avoid any obligations to any past, present
or future creditor of UCI, Doctor's Care or UCI of SC respectively in the
transactions contemplated by this Agreement. The above-mentioned parties are
currently solvent and will not be rendered insolvent as a result of the
transactions contemplated hereby. UCI, Doctor's Care or UCI of SC does not
intend to initiate with respect to themselves as debtors, nor do they expect to
have initiated against themselves as debtors, any proceeding under federal or
any state's bankruptcy, insolvency or similar laws.
6.7 Rule 144(e) Requirements. Notwithstanding anything contained herein to
the contrary, unless UCI goes private as described in Section 13(e) of the
Securities Exchange Act of 1934, as amended, UCI shall comply with the public
information requirements of Rule 144(e) promulgated under the Securities Act of
1933, as amended, so long as compliance with Rule 144(e) is required to effect a
sale of the Shares under Rule 144. UCI hereby acknowledges that there is no
present intention for UCI to go private as described in Section 13(e) of the
Securities Exchange Act of 1934, as amended.
6.8 Representations and Warranties at Closing. Except as expressly
otherwise permitted in this Agreement, the representations and warranties of
UCI, Doctor's Care and UCI of SC set forth in this Agreement shall be true as of
the Effective Date as though such representations and warranties were made on
such date, unless they reference a specific earlier date whereupon, as of
Effective Date, they shall be true as at the earlier date referenced.
7. CONDITIONS PRECEDENT.
7.1 Conditions of UCI, UCI of SC and Doctor's Care. The obligations of UCI,
UCI of SC and Doctor's Care hereunder shall be subject, to the extent not
waived, to the satisfaction of each of the following conditions at the Closing:
7.1.1 Representation and Warranties. The representations and
warranties of Seller and each Shareholder contained in this Agreement shall
be true and correct in all material respects as of the date when made and,
except for changes specifically contemplated by this Agreement, on and as
of the Effective Date as though such representations and warranties had
been made as of the Effective Date.
PAGE 14 of 86
7.1.2 Deliveries. The release of documents which Seller and
each Shareholder is obligated to make under Section 4 shall have
been made.
7.2 Conditions of Seller and Shareholders. The obligations of Seller and
the Shareholders hereunder shall be subject, to the extent not waived, to the
satisfaction of each of the following conditions at the Closing:
7.2.1 Representation and Warranties. The representations and
warranties of UCI, UCI of SC, and Doctor's Care contained in this Agreement
shall be true and correct in all material respects as of the date when made
and, except for changes specifically contemplated by this Agreement, on and
as of the Effective Date as though such representations and warranties had
been made as of the Effective Date.
7.2.2 Deliveries. The release of documents which UCI, UCI of SC,
and Doctor's Care is obligated to make under Section 4 shall have been
made.
8. COST AND EXPENSES.
8.1 Transactional Cost. The parties hereto shall be responsible for their
respective attorney's fees, accountants' fees, experts' fees, and other expenses
incurred by them in connection with the negotiations and Closing of this
transaction; provided however, in the event litigation is commenced to enforce
any rights under this Agreement or to pursue any other remedy available to any
party, all legal expense or other direct costs of litigation of the prevailing
party shall be paid by the other party.
8.2 Proration of Taxes and Charges. All personal property taxes, public
utility charges and like charges (which are not terminated and paid as of
Closing by Seller), if any, relating to the personal (tangible and intangible)
property comprising the Assets shall be prorated as of the Effective Date, in
accordance with regular accounting procedure. Settlement at Closing will be made
on proration of estimates of such taxes and charges. If, as the result of such
proration at Closing, a net balance is owed by Seller to UCI of SC, or visa
versa, the amount thereof shall be paid to such party at or within thirty (30)
days after receipt of the next succeeding payment notice.
8.3 Sales Taxes. UCI of SC shall be responsible for, and shall pay, all
sales taxes, if any, applicable to the sale of the Assets as called for herein.
9. INDEMNITY RIGHTS.
9.1 General Indemnity. Seller and each Shareholder shall jointly and
severally indemnify and hold UCI, Doctor's Care and UCI of SC and their
respective officers, directors and agents harmless, from any and all losses,
damages, liabilities, claims, suits, demands, penalties, assessments,
obligations, causes of actions or costs (including reasonable litigation
expenses and legal fees) asserted against or incurred by UCI, Doctor's Care or
UCI of SC as a result of any breach by Seller and/or any Shareholder of any
covenant, warranty representation, or agreement, made by Seller and/or any
Shareholder herein or in agreements related hereto including but not limited to
litigation expenses and legal fees that might be incurred because of such
breach.
9.2 Special Indemnities. Seller and each Shareholder shall jointly and
severally indemnify and hold UCI, UCI of SC and Doctor's Care and their
respective officers, directors, and agents harmless from any and all losses,
damages, liabilities, claims, suits, demands, penalties, assessments,
obligations, causes of action, or costs (including reasonable litigation
expenses and legal fees) asserted against or incurred by UCI, Doctor's Care, or
UCI of SC as a result of:
9.2.1 Award or Settlement. Any lawsuit or similar claim against
Seller and/or any Shareholder arising from events or conditions prior to
the Effective Date.
PAGE 15 of 86
9.2.2 Title to Assets. Any challenge to: (a) Seller's title to the
Assets, or (b) the transfer of such title and interest to the Assets to UCI
of SC or Doctor's Care pursuant to the Agreement.
9.2.3 Accounts Payable. Any accounts payable, taxes, assessments,
or charges of Seller and/or any Shareholder.
9.2.4 Environmental. Any existing environmental contamination or
the remediation thereof at the Premises, except disposal of x-ray machine
when its useful life is reached.
10. EXISTING LIABILITIES. Except as set forth in Section 1.1.2 hereof, neither
UCI, Doctor's Care nor UCI of SC assumes any, and hereby expressly disclaims
all, obligations or liabilities of Seller, contingent or absolute, including
(without limitation) liabilities for (i) federal or state income, payroll,
property, or sales taxes for any period, or (ii) any tort, contract, or
statutory liability resulting from or alleged to have resulted from the Business
prior to the Effective Date or operations of Seller prior to Effective Date,
except for the obligations arising and maturing after the Effective Date to
perform under those contracts expressly assumed by UCI of SC hereunder, if any.
All property taxes assessed against the Assets sold, and Premises leased
hereunder, hereby shall be prorated as of the Effective Date, and Seller shall
promptly pay when due, or reimburse UCI of SC for, all such taxes which remain
the Seller's responsibility.
11. RISK OF LOSS. In the event the Assets and/or Premises or any substantial
part thereof shall be damaged or destroyed prior to the Effective Date due to
any casualty or event, or there shall occur any actions for condemnation or
eminent domain having a material adverse affect on the Assets and/or Premises or
any substantial part thereof, Seller shall promptly notify UCI of SC that such
damage, destruction, or action has occurred and the estimated extent thereof. In
case the amount of such damage, destruction, condemnation or eminent domain is
in excess of 10% of the Purchase Price, including but not limited to the value
of the Shares more fully described in Section 3.1, of all of the Assets
immediately before such damage or destruction, then UCI of SC must within five
(5) days of receipt of such notice either:
11.1 Termination. Terminate this Agreement by giving Seller written notice
of such termination and thereupon all parties shall be released of all further
liability to the others; or
11.2 Adjustment. Alternatively, and subject to the fulfillment of the
conditions set forth herein, require the consummation of the transactions
provided for in this Agreement and, in such case (or in case of any damage by
fire or other casualty, or condemnation or eminent domain action not entitling
UCI of SC to terminate this Agreement), all proceeds of insurance covering the
Assets and all of the claims arising as a result of such damage or destruction
to such Assets or all proceeds of such condemnation or eminent domain action for
such Assets shall become the property of UCI of SC. In the event UCI of SC
elects to require the consummation of the transactions contemplated herein,
Seller shall not compromise or settle any such claim or action at any time
without the written consent of UCI of SC which shall not be unreasonably
withheld. Seller shall cooperate with the collection of such amounts. Further,
in such event, the representations and warranties of Seller and the
Shareholders, as set forth in Section 5 shall be modified equitably to account
for such claim or action.
12. MISCELLANEOUS.
12.1 Entire Agreement. This Agreement, including the Exhibits hereto,
embodies the entire Agreement and understanding between the parties hereto as to
the matters herein addressed and supersedes all prior agreements and
understandings relating to the subject matter hereof.
12.2 No Waiver. No failure to exercise, and no delay in exercising any
right, power or remedy hereunder or under any document delivered pursuant hereto
shall impair any right, power or remedy which the parties hereto may have, nor
shall any such delay be construed to be a waiver of any such rights, powers or
remedies, or any acquiescence in any breach or default under this Agreement, nor
shall any waiver of any
PAGE 16 of 86
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.: Stephen S. Seeling, Esq.
UCI: UCI Medical Affiliates, Inc.
6168 St. Andrews Road
Columbia, SC 29212-3132
Attn.: Stephen S. Seeling, Esq.
Doctor's Care: Doctor's Care, P.A.
6168 St. Andrews, Road
Columbia, SC 29212-3132
Attn.: M.F. McFarland, III, MD
Seller: Wateree Emergency Specialists, P.A.
1060 Highway 1 South
P.O. Box 489
Lugoff, SC 29078
Attn: Elaine B. Baxley, MD
Baxley: Elaine B. Baxley, M.D.
206 Firetower Road
Camden, SC 29020
Hargrave: Ronald P. Hargrave, M.D.
976 Houston Northcutt Blvd.
Suite 3, Number 145
Mt. Pleasant, SC 29464
Kahler: Guy B. Kahler, M.D.
2160 Leisure Road
Camden, SC 29020
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.
PAGE 17 of 86
12.6 Severability of Provisions. In case any one or more of the provisions
contained in this Agreement should be invalid, illegal or unenforceable in any
respect, the validity, legality and enforceability of the remaining provisions
contained herein shall not in any way be affected or impaired thereby.
12.7 Successors and Assigns. This Agreement shall be binding upon the
parties, and their respective successors, heirs, and assigns, and shall inure to
the benefit of the parties and their respective successors, heirs, and permitted
assigns.
12.8 Counterparts. This Agreement may be executed in any number of
counterparts, all of which taken together shall constitute one Agreement, and
any party hereto may execute this Agreement by signing any such counterpart. The
authorized attachment of counterpart signature pages shall constitute execution
by the parties.
12.9 Choice of Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of South Carolina.
12.10 Jurisdiction. The parties hereto consent to exclusive jurisdiction,
subject to proper service of process, in the State of South Carolina regarding
any disputes arising hereunder.
12.11 Usage. The section and paragraph headings contained in this Agreement
are for reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement. Terms such as "hereof" , "hereunder",
"hereto", "herein", and words of similar import shall refer to this Agreement in
its entirety and all references to "Articles", "paragraphs", "Sections", and
similar cross references shall refer to specified portions of this Agreement,
unless the context clearly requires otherwise.
12.12 Further Instruments and Acts. From time to time at a party's request,
whether at or after Closing and without further consideration, the other
party(ies) shall execute and deliver such further instruments of conveyance,
transfer and assignment and upon reimbursement for actual reasonable
out-of-pocket expenses take such other action as the requesting party reasonably
may require to more effectively convey and transfer to the requesting party the
properties to be conveyed, transferred and assigned hereunder, and, if
necessary, will assist the requesting party in the collection or reduction to
possession of such property. In addition, each party agrees to provide
reasonable access to records respecting the Business as are requested by the
other party(ies) for proper purpose with good cause shown (subject to
appropriate confidentiality agreements to be negotiated as such time) and agree
to reasonably cooperate in resolving any matters resulting from the transactions
contemplated hereby.
12.13 Assignment. This Agreement is not assignable by any party without the
prior written consent of the other parties hereto.
12.14 Reorganization. The exchange described herein is intended to qualify
as a reorganization under Section 368(a)(1)(C) of the Internal Revenue Code of
1986, as amended, and the parties hereto agree to report the exchange
accordingly in their respective state and federal income tax filings. After the
Closing, Seller shall promptly distribute to the shareholders of Seller in
dissolution and liquidation of Seller all of Seller's assets remaining after
payment of Seller's liabilities.
12.15 Litigation Related to Certain Accounts Receivable. In the event UCI
of SC desires to commence litigation to collect the amount due under any
accounts receivable of Seller transferred to UCI of SC hereunder, UCI of SC
shall notify Seller in writing and seek Seller's consent to such litigation,
which shall not be unreasonably withheld. In the event Seller does not consent,
UCI of SC shall not be entitled to commence such litigation. Nothing contained
herein shall be construed to preclude or in any way limit UCI of SC's right to
commence litigation to collect amounts due related to any medical services
provided after the date of Closing.
[SIGNATURE PAGE ATTACHED]
PAGE 18 of 86
IN WITNESS WHEREOF, the parties have executed this Asset Purchase Agreement
And Plan of Reorganization under seal, with the corporate parties acting by and
through their duly authorized officers, effective as of the date first above
written.
UCI: UCI OF SC:
UCI MEDICAL AFFILIATES, INC. UCI MEDICAL AFFILIATES OF SOUTH CAROLINA, INC.
By: /s/ M.F. McFarland, III, M.D. By: /s/ M.F. McFarland, III, M.D.
Its: President Its: President
DOCTOR'S CARE: SELLER:
DOCTOR'S CARE, P.A. WATEREE EMERGENCY SPECIALISTS, P.A. (d/b/a Wateree Medical Center)
By: /s/ M.F. McFarland, III, M.D. By: /s/ E. B. Baxley, M.D.
Its: President Its: President
HARGRAVE: BAXLEY:
/s/ Ronald P. Hargrave, M.D. /s/ E. B. Baxley, M.D.
Ronald P. Hargrave, M.D. Elaine B. Baxley, M.D.
EMS: KAHLER:
EMERGENCY MEDICINE SPECIALISTS,
P.A. /s/ Guy B. Kahler, M.D.
Guy B. Kahler, M.D.
By: /s/ E. B. Baxley, M.D.
Its: President
PAGE 19 of 86
Exhibit A
LIST OF ASSETS
TRAUMA
1/2 bag 4x4 Ns 1 reflex hammer
1 rectal thermometer 1 nail drill
1 bag 1 thigh cuff
1 doppler 1 infant cuff
1 bid gown 1 infant scale
2 curtains 1 apron
2 box electrodes 1 goggles
4 plastic airways 1 doppler kit
5 blankets tube gauze dressing cage dispenser
2 towels instruments- multiple pieces
3 washcloths 1 wire cutter
1 gown 4 scissors
3 sheets
3 pillowcases
2 pillows
1 rolling B/P cuff
2 rolling stools
1 rolling table
2 stretchers
1 scales
1 EKG machine
1 portable IV pole
1 papertowel dispenser
1 soap dispenser
1 magazine rack
1 defribillater
1 wall mount sharps
1 wheelchair
3 trash cans
3 shelves
1 hyfrecator
1 breath alcoholmachine
1 aerosol machine
1 laundry basket
1 x-ray view box
3 doctor tool suture trays
2 towels
2 small basins
4 suture trays
2 battery operated cautery
3 glass jars
1 ring cutter
1 bolt cutter
PAGE 20 of 86
LAB
1 trash can
1 bulletin board
9 file racks
1 paper towel dispenser
1 soap dispenser lab log book
2 file trays
1 auto crave
1 spore incubator
1 stapler
1 tape dispenser
1 intercom
1 Kodak EK + achem kit
2 Finnip 1 tray (blood)
2 pairs glasses (blood)
45 drapes 1 refrigerator
LAUNDRY CLOSET
1 washer/dryer stack unit
2 brooms
1 dust mop
1 bucket
1 sponge 3 scrub tops
3 scrub bottoms
1 lab coat
1 Bld. draining coat
4 bath towels
2 blankets
TESTING ROOM
1 trash can
1 chair
1 rolling stool
1 PFT machine
1 titmus machine
1 audiogram machine
1 foot stool
1 basket
1 radio
1 intercom
1 chart rack
1 towel dispenser
1 tape dispenser
PAGE 21 of 86
X-RAY
1 x-ray machine
1 rack (file)
1 small metal rack
1 magazine rack
1 chair
1 set calibers
8 cassettes (sizes)
2 trash cans
1 foot stool
1 full apron
1/2 apron
1 wall desk
1 thyroid collar
1 darkroom lights
1 fife (metal) holder
trash can
1 view box
automatic developing machine
PRIVATE BATHROOM
1 towel dispenser
1 soap dispenser
1 trash can
1 wicker rack (wall)
4 pictures
1 wicker stand
HALLWAY #1
1 wall desk
6 pt chart racks
1 intercom
HALLWAY #2
1 large corkboard
1 pull down wall desk
1 trash can
1 hall beeper
1 time clock
1 card rack
1 bulletin board
7 pk chart holders
1 EXIT sign
1 eye wall chart
PAGE 22 of 86
ROOM #1
1 washcloth
2 pillowcases
12 sheets
4 gowns
1 PDR
1 box Kleenex
1 rolling stool
1 chair
1 B/P cuff (wall) SMTHG
1 exam table
1 wall otolopthoscope
1 ear spec dispenser
1 towel dispenser
1 glass container Q-tips
1 glass container blades
1 child chair
1 foot stool
1 magazine rack
1 picture
1 exam table
ROOM #2
1 chair
1 child chair
1 blanket
6 sheets
2 pillowcases
4 gowns
1 pillow
1 B/P wail mount
1 ear spec dispenser
1 otolopthoscope
1 stool
1 trash can
1 picture
1 glass dispenser Q-tips
1 plastic dispenser blades
1 soap dish
1 set bookends PDR
1 glass container
1 exam table
1 magazine rack
PAGE 23 of 86
ROOM #3
1 PDR
1 set bookends
1 glass cotton dispenser
1 otolopthoscope
1 3/P cuff
1 ear spec dispenser
1 pillow
1 rolling stool
1 chair
1 trash can
1 picture
1 alcohol dispenser
1 soap dispenser
1 towel dispenser
1 magazine rack
1 exam table
5 sheets
6 gowns
2 pillow cases
1 towel
ROOM #4
1 B/P cuff (wall mount)
1 wall mount otoscop/opthm.
1 trash can
1 OB/GYN exam tables
1 magazine rack
1 exam light
1 ring forceps
3 med specs
2 gowns
4 washcloths
5 gowns
4 pillow cases
2 sheets
1 chair
1 rolling stool
1 towel dispenser
1 furnace
1 PDR
1 washcloth
1 glass dispenser Q-tips
1 soap dispenser
1 ear spec dispenser
2 glass containers cottonballs
1 picture
PAGE 24 of 86
ROOM #5
1 B/P cuff (wall)
3 boxes gloves
3 plastic containers
1 soap dispenser
1 PDR
1 chair
1 OB/GYN exam table
1 washcloth
1 box sterile 2x2's
1 box sterile 4x4's
1 box sterile 4x4's
1 trash can
1 rolling stool
1 wall mount oto/en light
1 pair ring forceps
1 small specs
6 med specs
9 sheets
1 light (exam)
3 pillow cases
8 gowns
1 ear spec dispenser
ROOM #6
1 stool
1 chair pt)
1 ENT chair
1 slit lamp
1 B/P cuff
1 oto/opth scope
1 paper towel dispenser
1 rolling stool
1 eye lamp
1 tongue depressor holder
1 magazine holder
1 PDR
1 box Kleenex
1 ear specula holder
1 ear spoon
2 plastic ear basins
PAGE 25 of 86
ROOM #7
1 towel dispenser
1 soap dispenser
1 glass dispenser Q-tips
1 tongue blade dispenser w/blades
1 ear spec dispenser
1 spray bottle
1 basin
1 stretcher
1 portable IV pole
2 pairs scissors
1 otolopth. scope (wall mount)
1 wall S/P cuff (1 med./1 large)
4 pillow cases
1 hand towel
1 washcloth
1 gown
2 sheets
1 pillow
2 bath towels
chair
rolling tables
waste can
1 rolling stool
1 plastic carry tray/lab supplies
BATHROOM
2 soap dispensers
1 towel dispenser
PAGE 26 of 86
FILE ROOM
1 charge card imprinters (/1 Wateree Medical)
1 charge card scanners (/1 Wateree Medical)
1 Fax machine with telephone
1 answering machine
1 postage meter
1 postage scale
1 telephone
1 hole punch
1 paper clip holder
2 black smoke wall bins
1 3-shelf black wrought iron stand
1 white metal 6-shelf stand
1 white adjustable desk
2 beige 4-drawer filing cabinet
1 grey 4-drawer filing cabinet
1 beige magazine holder
1 black rolodex
1 brown 5-shelf organizer (metal)
1 brown wooden 3-shelf organizer
8 grey wall filing organizers
1 pencil holder
1 smoky black letter tray
1 lab corp. printer with stand
1 staple remover
1 stool
1 paper cutter
2 waste baskets
WAITING ROOM
3 large brass planters.artificial trees
1 brass plant stand/ivy
10 orange leather chairs
8 green leather chairs
1 brown coffee table
2 3-seat cloth chairs/table attached
1 2-seat cloth chair
1 2-seat cloth chair/table attached
1 3-shelf book rack
PAGE 27 of 86
FRONT
1 copy machine (Gestetner 2216Z) 2 telephones
3 waste cans 1 8 1/2x11 paper cassette
1 tape dispenser
2 hole punches
2 stamp pads
6 wall hot files (smoky grey)
1 black computer table
1 local area picture
1 wall clock
6 letter trays
2 index boxes
1 magazine holder
1 Texas Instrument calculator (T1 5029)
3 message trays
2 monitors (1 Samtronics/1 Addonics)
2 key boards (1 Mitsumi/1 Slayton)
2 printers (1 GSX-190 Citizen/1 Epson FX-850)
1 Smith Corona XD 5500 Spell Right Typewriter
1 ledger card tray
1 stamper carousel
9 stampers
4 white plastic clipboard
6 brown clipboards
1 nose cup
1 beige magazine rack
1 fileserver - 1 CPU w/o harddrive
1 battery backup
1 black pad divider
1 drawer divider
1 box paper clips
1 microphone
1 candy jar
2 printer stands
1 CD deck with remote
1 receiver
2 chairs
1 Canon palm printer MP 1D
1 phone
1 paper clip letter holder
1 box 3-way files
1 boxes single files (50)
4 boxes file folders (50)
2 AC adapter/Canon
1 shredder
1 2-door metal cabinet
2 staplers
PAGE 28 of 86
BREAK ROOM
1 2-cushion sofa
1 table
6 side chairs
1 refrigerator
1 microwave oven
1 1-duplex coffee maker
1 13" Sharpe TV-VCR combination with stand
PHARMACY
1 refrigerator
1 countertop file
SUPPLY ROOM
2 laminated storage cabinets with doors
3 metal storage cabinets, open
1 cart
DOCTORS' DOWNSTAIRS OFFICE
2 work stations
2 office chairs
1 x-ray view box
1 file cabinet
DOCTORS' UPSTAIRS OFFICE
1 desk
1 bookcase (all books in bookcase personal property of Baxley, Kahler, Hargrave)
1 desk chair 2 upholstered side chairs
UPSTAIRS HALL
1 round laminate topped table
OFFICE MANAGER'S OFFICE
office systems work station w/2 filing cabinets, keyboard tray & desk chair
2 upholstered sid chairs
1 typing table
1 486 DX 66 CPU
1 monitor
1 keyboard
1 wide carriage dot-matrix printer w/stand, Epson LQ 1170
1 dot-matrix printer w/stand, Panasonic KX P1180
STORAGE ROOM ADJACENT TO OFFICE MANAGER
1 desk w/chair
3 metal 4-drawer filing cabinets
PAGE 29 of 86
Exhibit B
LIABILITIES TO BE ASSUMED
None other than the expenses related to the telephone listings of Seller.
PAGE 30 of 86
Exhibit C
BILL OF SALE
(Medical Records)
KNOW ALL MEN BY THESE PRESENTS, that Wateree Emergency Specialists,
P.A., a South Carolina professional association d/b/a Wateree Medical Center
with offices at 1060 Highway 1 South, Lugoff, South Carolina 29078, Elaine B.
Baxley, M.D., Ronald P. Hargrave, M.D., and Guy B. Kahler, M.D. (collectively
the "Grantor"), for and in consideration of the sum of Ten Dollars ($10.00), and
other good and valuable consideration to it in hand, paid at or before the
ensealing and delivery of these presents, by M.F. McFarland, M.D. ("Grantee"),
the receipt, sufficiency and adequacy of which is hereby acknowledged and
subject to the terms hereof, has bargained and sold and by these presents does
sell, assign, transfer, remise, release and quitclaim unto the said Grantee, its
successors and assigns, all of the Grantor's right, title and interest in and to
the following goods and chattels:
All patient medical records and files owned by Grantor with
respect to Grantor's medical practice located at 1060 Highway
1 South, Lugoff, South Carolina 29078.
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 to
be effective as of the 11th day of June, 1996.
WITNESSES: WATEREE EMERGENCY SPECIALISTS, P.A. (SEAL)
/s/ Julian Hennig, III By: /s/ E. B. Baxley, M.D.
Its: President
/s/ Charles Baxley
/s/ Julian Hennig, III /s/ E. B. Baxley, M.D.
Elaine B. Baxley, M.D.
/s/ Charles Baxley
/s/ Julian Hennig, III /s/ Ronald P. Hargrave, M.D.
Ronald P. Hargrave, M.D.
/s/ Charles Baxley
/s/ Julian Hennig, III /s/ Guy B. Kahler, M.D.
Guy B. Kahler, M.D.
/s/ Charles Baxley
PAGE 31 of 86
Exhibit D
PROMISSORY NOTE
$60,000.00 Columbia, S.C.
June 11, 1996
FOR VALUE RECEIVED, UCI Medical Affiliates of South Carolina, Inc., a
South Carolina corporation (the "Borrower"), hereby promises to pay, in lawful
money of the United States of America, to the order of Wateree Emergency
Specialists, P.A., a South Carolina professional corporation (the "Lender"), the
principal sum of Sixty Thousand and No/100 ($60,000.00) Dollars, subject to set
off as provided hereunder.
Interest shall accrue from June 11, 1996 on the principal balance
outstanding hereunder from time to time until paid in full at the fixed simple
rate per annum equal to nine (9.0%) percent, amortized over four (4) months and
calculated based upon a 360-day year and the actual number of days elapsed.
Equal payments of principal and interest in the amount of Fifteen Thousand Two
Hundred Eighty-Two and 30/100 ($15,282.30) Dollars shall be due and payable
commencing on July 11, 1996, and continuing thereafter on the first (1st) day of
each month for the succeeding three (3) consecutive months. Payments hereunder
shall be made to the Lender at 206 Firetower Road, Camden, South Carolina 29020,
or at such other place as the Lender may designate from time to time in writing.
This Note is executed in connection with that certain Asset Purchase
Agreement And Plan of Reorganization dated as of June 11, 1996, by and between
among others Borrower, Lender, UCI Medical Affiliates, Inc., and Doctor's Care,
P.A. and such documents ancillary thereto (collectively the "Agreement").
This Note is collaterized by that certain Security Agreement executed
by Borrower and M.F. McFarland, M.D. and dated the date hereof.
The occurrence of the following shall constitute an "Event of Default"
under the Note: Borrower, after the expiration of the applicable grace period
hereinafter set forth, fails to pay when due any principal or interest payment
hereunder (except for any amount then subject to an unresolved but duly asserted
set off or recoupment dispute). Upon the occurrence of an Event of Default as
hereinabove defined, then at any time thereafter the Lender may declare the
entire remaining principal balance due hereunder, together with all accrued
interest thereon, immediately due and payable. The applicable grace period
hereunder shall be twenty (20) days and shall begin to run upon receipt by
Borrower of written notice from Lender of a potential default hereunder.
The invalidity of any provision of this Note shall not affect the
validity of any other provision hereof. The acceptance after maturity of any
payment with respect to this Note shall not constitute a waiver of the right of
Lender to demand the payment in full of any unpaid balance. No delay or failure
on the part of the Lender in the exercise of any right or remedy shall operate
as a waiver thereof, and no single exercise of any right or remedy shall
preclude Lender from the exercise of any other or further rights or remedies.
In the event this Note is placed in the hands of an attorney for
collection (but not for resolution of any disputes on a set off or recoupment of
the amount due hereunder), all expenses of the Lender, including reasonable
attorneys' fees, shall be added to the principal amount of this Note and
collected as a part hereof. This Note shall be governed by and construed in
accordance with the laws of the State of South Carolina. Jurisdiction and venue
for the enforcement of this Note shall be exclusively in the courts for the
State of South Carolina.
PAGE 32 of 86
Borrower expressly waives demand, presentment, protest and notice of
non-payment or dishonor and all other notices or demands whatsoever (except for
notices expressly set forth herein), and such parties agree to remain bound
hereby until all amounts due hereunder are paid in full, notwithstanding any
extension of time for payment which may be granted, even though the period of
extension be indefinite.
The Borrower reserves the right to prepay this Note in whole or in part
at any time without fee or penalty; provided, however, that any partial payment
shall be applied first to accrued interest and then to the reduction of the
principal.
EXECUTED as of this 11th day of June, 1996.
UCI MEDICAL AFFILIATES OF SOUTH
CAROLINA, INC. (SEAL)
By: /s/ M.F. McFarland, III, M.D.
Its: President
Notice Address for Borrower:
6168 St. Andrews Road
Columbia, South Carolina 29212
Attn: Stephen Seeling, Esquire
PAGE 33 of 86
Exhibit E
INVESTMENT LETTER
June 11, 1996
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 Wateree Emergency Specialists, P.A., a
South Carolina professional corporation ("Transferee"), One Hundred Seventy-Two
Thousand Five Hundred Eighty-Eight (172,588) 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,
as well as Elaine B. Baxley, M.D., Ronald P. Hargrave, M.D., and Guy B. Kahler,
M.D., the sole shareholders of Transferee (collectively the "Shareholders"),
hereby jointly and severally represent and warrant to you and hereby covenant
and agree with you, as follows:
1. 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. 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.
2. As of the date hereof, the Shareholders are the sole shareholders of
Transferee.
3. Transferee and each Shareholder acknowledge that the Company has
delivered within a reasonable time prior to the execution of this Investment
Letter a copy of the following: (i) the Company's 1995 proxy statement; (ii) the
Company's Form 10-KSB for the fiscal year ended September 30, 1995; (iii) the
Company's Form 10-QSB for the fiscal quarter ended December 31, 1995; (iv) the
Company's Form 10-QSB for the fiscal quarter ended March 31, 1996; (v) the
Company's press releases since September 30, 1995; (vi) the Company's Form 8-K
filings since September 30, 1995, as amended; and (vi) a brief description of
the securities being offered and use of the proceeds from the offering.
4. The Transferee and each Shareholder considers itself to be a
sophisticated investor in companies similarly situated to the Company, and
Transferee and each Shareholder 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 each Shareholder
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 each Shareholder 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.
5. 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
PAGE 34 of 86
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.
6. The Transferee's and each Shareholder's investment in the Shares is
reasonable and consistent with the nature and size of its present investments
and net worth, Transferee and each Shareholder has no need for liquidity in the
investment represented by the Shares, and Transferee and each Shareholder 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.
7. Transferee and the Shareholders are aware that the Company may offer
and sell additional shares of common stock in the future, thereby diluting
Transferee's percentage equity ownership of the Company.
8. 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.
9. 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.
10. 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.
11. Transferee understands and acknowledges that neither the Company
nor you are under any obligation to register the Shares for public sale or,
except as set forth in the Asset Purchase Agreement dated the date hereof, 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.
12. 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. Each
Shareholder is a South Carolina resident and has no present intention of
removing himself/herself from his/her existing state of residence
13. Transferee and each Shareholder 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.
PAGE 35 of 86
This Investment Letter shall be binding upon the each Shareholder, the
Transferee and their respective 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.
IN WITNESS WHEREOF, this Investment Letter is hereby executed as of the
date first above written.
TRANSFEREE:
Number of Shares of WATEREE EMERGENCY SPECIALISTS, P.A.
UCI Medical Affiliates, Inc.
to be issued: By:/s/ E. B. Baxley, M.D.
Print Name: /s/ Elaine B. Baxley, M.D.
172,588 Shares Its: President
Date: June 11, 1996 P. O. Box 489, 1060 Hwy 1 South
(Street Address)
Lugoff, S.C. 29078
(City, State, Zip)
SHAREHOLDERS:
/s/ E. B. Baxley, M.D.
Elaine B. Baxley, M.D.
206 Fire Tower Road
(Street Address)
Camden, SC 29020
(City, State, Zip)
/s/ Ronald P. Hargrave, M.D.
Ronald P. Hargrave, M.D.
976 Houston Northcutt Blvd., Suite 3 #145
(Street Address)
Mt. Pleasant, SC 29464
(City, State, Zip)
/s/ Guy B. Kahler, M.D.
Guy B. Kahler, M.D.
2160 Leisure Road
(Street Address)
Camden, S.C. 29020
(City, State, Zip)
PAGE 36 of 86
Exhibit F
STATE OF SOUTH CAROLINA )
) LEASE AGREEMENT
COUNTY OF KERSHAW )
THIS LEASE AGREEMENT (the "Lease") is made as of this 10th day of June,
1996, by and between ELAINE B. BAXLEY, M.D.; RONALD PAUL HARGRAVE, M.D.; GUY B.
KAHLER, M.D. (collectively the "Landlord"); and UCI MEDICAL AFFILIATES OF SOUTH
CAROLINA, INC., a South Carolina corporation (the "Tenant").
This Lease is executed and delivered in connection with that certain
Asset Purchase Agreement And Plan Of Reorganization by and between among others
Landlord, Tenant, UCI Medical Affiliates, Inc., Doctor's Care, P.A., and Wateree
Emergency Specialists, P.A. d/b/a Wateree Medical Center ("Seller") dated as of
June 11, 1996 (the "Purchase Agreement") related to the purchase of certain
assets of Seller by Tenant.
In consideration of these premises and the mutual promises below, and
for other good and valuable consideration, the receipt and legal sufficiency of
which is hereby acknowledged by the parties hereto, Landlord and Tenant agree as
follows:
1. Leased Premises. Landlord hereby leases, demises, and lets, to
Tenant, and Tenant hereby leases from Landlord, that certain premises and all
improvements thereon consisting of approximately five thousand one hundred
eighty (5,180) square feet of office space now occupied by Seller and located at
1060 Highway 1 South, Lugoff, South Carolina 29078, all as more fully described
on Schedule 1 attached hereto (collectively the "Premises"), upon the terms,
covenants, and conditions hereinafter contained.
2. Term. The term of this Lease shall commence on June 11, 1996, and
terminate on June 30, 2011.
3. Rent. Subject to Section 20 herein, the Tenant shall pay to the
Landlord an annual rental of Forty-Six Thousand Six Hundred Twenty and No/100
($46,620.00) Dollars, in monthly installments of Three Thousand Eight Hundred
Eighty-Five and No/100 ($3,885.00) Dollars, on the first (1st) day of each
month, payable in advance during the term of this Lease in lawful money of the
United States, addressed to Landlord at Landlord's address set forth in Section
39 herein. Such rent shall be prorated in the amount of Two Thousand Five
Hundred Ninety and No/100 ($2,590.00) Dollars for periods outstanding in the
month of June 1996 at the commencement of this Lease. Notwithstanding the
foregoing, during the term of this Lease, the rental hereunder shall be adjusted
on each third (3rd) anniversary date of July 1, 1996 to reflect any increase
(but not decrease) in the numerical level of the Consumer Price Index for all
Urban Wage Earners and Clerical Workers (base year 1967=100) most recently
published by the Bureau of Labor Statistics of the United States Department of
Labor ("CPI"). Such annual adjustment shall be determined by dividing the CPI
indicator from the month immediately prior to such anniversary date, by the CPI
indicator published for the corresponding month of the prior adjustment
hereunder, and multiplying the resultant number by the then current rental
hereunder. In the event the CPI is not available in time to make the computation
on any third anniversary date, the adjustment will be made retroactively to such
anniversary date at such time as the CPI is available. If the base for the CPI
is so changed that 1967 prices are no longer taken as representing 100, an
appropriate adjustment will be applied to the published indices so as to relate
them to the aforesaid base in which 1967 prices are taken as representing 100.
In the event the CPI is discontinued, such other substantially similar
government index or publication as chosen by Landlord for a reasonable
replacement shall be used for such annual adjustment.
4. Additional Rent. This Lease is a net lease. Tenant shall pay as
additional rent throughout the term of this Lease, the following expenses:
PAGE 37 of 86
A. Real Estate Taxes. All taxes and assessments of
every kind or nature which are now or may hereafter be imposed or assessed upon
the Premises being leased hereunder by federal, state, or local government
authority. Such items shall be prorated for periods outstanding at the
commencement or the termination of this Lease.
B. Utilities. All charges for air conditioning,
heat, water, sewer, garbage collection, security, gas, electricity, light,
telephone, or any other communication or utility service used in or rendered or
supplied to the Premises through the term of this Lease. Such items shall be
prorated for periods outstanding at the commencement or the termination of this
Lease.
C. Insurance. All premiums for the insurance
coverage on the Premises or respecting business operations thereon as set forth
in Section 12 hereof.
Tenant shall make such payments directly to the intended recipient
thereof. Prorations of such amounts at the commencement and termination of this
Lease, as set forth above, shall be based upon bills for the immediately prior
period unless actual amounts can be determined. Upon receipt of the actual bill
for such period, the party receiving such bill shall promptly forward same to
the other party and Landlord and Tenant shall then make such adjustment and
payment as shall be required to make such proration accurate. Landlord shall be
entitled, but shall have no obligation, to pay any taxes, utilities, or
insurance not promptly paid by Tenant as required above, in which case the
amount of such payment must be reimbursed to Landlord by Tenant within ten (10)
days after notice of such payment is given by Landlord to Tenant.
5. Condition of Premises. Subject to Sections 6 and 7 hereof, Tenant
acknowledges that it has inspected the Premises, that this Lease is for space
previously occupied. Except as set forth in Sections 6 and 7 hereof, Landlord
shall not be required to make any repairs or improvements to the Premises being
leased hereunder except repairs, if any, to the roof and walls of the Premises
to the extent necessary for repair of leaks and/or structural integrity and
safety. All other repairs to the Premises being leased hereunder shall be the
responsibility of Tenant. Subject to the foregoing and Sections 6 and 7 hereof,
Tenant shall, at its own expense, keep the Premises in good repair and shall
make all necessary repairs and replacements to the Premises. Such repairs and
replacements shall be made promptly, as and when necessary. On default of Tenant
in making such repairs or replacements Landlord may, but shall not be required
to, make such repairs and replacements for Tenant's account, and the expense
thereof shall constitute and be collectible as additional rent.
6. Hazardous Substance Remediation. Notwithstanding anything
contained herein to the contrary, Tenant shall not be required to remediate,
purge or remove, or bear the cost of such remediation, purge or removal of, any
hazardous substance which contaminated the Premises prior to the commencement of
the term of this Lease or which existed at the commencement of the term of this
Lease and worsened through no fault of Tenant thereafter. In addition, Tenant
shall not be obligated to take actions to prevent such worsening of
contamination which existed at the commencement of this Lease. Landlord shall
indemnify Tenant and hold Tenant harmless from any and all liability, claim,
injury, damage, penalty, or cost, (including reasonable attorney's fees) arising
out of third party claims or assertions resulting from any hazardous substances
existing on the Premises as of the effective date of this Lease.
7. Americans With Disabilities Act. Notwithstanding any term
or provision to the contrary contained herein, the Landlord, at Landlord's sole
cost and expense, shall ensure that the Premise and improvements thereon shall
be in material compliance with the Americans With Disabilities Act, as the same
is amended from time to time (the "Act"). Tenant shall not be required to make
any alterations or additions to the Premises (both structural and
non-structural) that may be necessary from time to time to keep or bring the
Premises in material compliance with the Act unless such lack of compliance with
the Act occurs as a result of a change by Tenant of Tenant's use of the Premises
after the commencement of the term hereof. Landlord hereby represents and
warrants that the Premises as presently used by Seller is in compliance with the
Act.
8. Alterations. Tenant shall not make, or suffer to be made,
any alterations of the Premises, or any part thereof, without the written
consent of Landlord, which consent shall not be unreasonably withheld.
PAGE 38 of 86
9. Entry by Landlord. Landlord shall have the right to enter
the Premises at reasonable times, for the purpose of inspection, posting notices
or supervising any necessary repairs and maintenance required hereto to be
performed by Landlord, upon reasonable notice to Tenant.
10. Signs and Parking. Tenant shall have the exclusive right
to use the parking area which is part of the Premises. Tenant, at its
discretion, may erect such signs as it deems necessary or appropriate, so long
as the same comply with applicable laws and zoning restrictions.
11. Assignment and Subletting. Tenant shall have the right to
make subleases of all or any portion of the Premises and any permitted sublessee
may use the same for any lawful purpose permitted by this Lease, so long as
Tenant shall agree in writing to remain liable hereunder as though no subleases
had been made, unless Landlord acknowledges in writing that Tenant shall not
remain liable hereunder. Landlord may assign this Lease and all rights hereunder
provided Tenant's use and enjoyment of the Premises during the term of this
Lease is not disturbed.
12. Insurance Coverage. Tenant shall at all times maintain
the following insurance coverage respecting the Premises and its business
operations thereon: fire and hazard insurance on the building constituting a
portion of the Premises for not less than the replacement cost thereof (in the
event Tenant is not entitled to obtain such insurance, then Tenant shall pay the
cost of Landlord's policy); public liability insurance for personal injury and
property damage; workers' compensation insurance required by South Carolina law;
hazard insurance on all contents and property of Tenant at the Premises and all
property of other persons temporarily stored at the Premises; and such other
insurance coverages required by this Lease or as are customarily carried on
businesses such as that to be conducted by Tenant at the Premises. All such
insurance coverage shall be in such amounts, upon such terms, and with such
companies, as required by this Lease, now maintained, or otherwise approved by
Landlord, shall name Landlord as an additional insured, and shall provide
Landlord with at least ten (10) days' prior written notice of cancellation,
non-renewal, or material amendment. Landlord agrees to approve any reputable,
highly rated national insurance company licensed and in good standing in South
Carolina and that the required amount of coverage of any such policy will not
exceed the amount which can be obtained at standard rates.
13. Default of Tenant. The occurrence of any of the following
events shall constitute a breach of this Lease:
A. The failure of Tenant to pay rent or to make any
other payment of money as herein required when due for a period of ten (10) days
after delivery by Landlord of a written notice to Tenant of any such failure.
B. The expiration of a period of sixty (60) days
following (I) the adjudication of Tenant as a bankrupt by any court of competent
jurisdiction, (II) the entry of an order approving a petition filed by one other
than Tenant, seeking reorganization of Tenant under the National Bankruptcy Act
or any other applicable law of the United States or of any State, or (III) the
appointment of a trustee or receiver of all or substantially all of the business
of property of Tenant, or (IV) the levy of any attachments, execution or
garnishment upon the interest of Tenant hereunder, or upon the leasehold estate
hereby created, unless during such period such adjudication, order or
appointment of a receiver or trustee, attachment, execution or garnishment shall
be vacated or unless within such period Tenant shall have taken proper action to
vacate such adjudication, order or appointment of a receiver or trustee,
attachment, execution or garnishment, and in such event such occurrence shall
not constitute a breach of this Lease until final adjudication of the matter.
C. The filing by Tenant of a voluntary petition in
bankruptcy or the making of an assignment for the benefit of creditors; the
consenting by Tenant to the appointment of a receiver or trustee of all or any
part of its property, the filing by Tenant of a petition or answer seeking
reorganization under the National Bankruptcy Act or any other applicable law, or
the filing by Tenant of a petition to take advantage of any insolvency act.
PAGE 39 of 86
D. The failure of Tenant to correct any default
hereunder, other than those specified in subdivisions (A), (B), and (C) of this
Section 13 within thirty (30) days after delivery by Landlord to Tenant of a
written notice of such default, or if the default is of such a nature that it
cannot be corrected within thirty (30) days, then the failure of Tenant within
such period to commence and thereafter proceed diligently to cure such default.
If any of the above-mentioned events of default shall occur,
the Landlord at its option may re-enter and take possession of the Premises, and
at its option terminate this Lease and accelerate all payments due or coming due
hereunder.
14. Default of Landlord. If at any time during the term hereof Landlord
shall default in any of its obligations under this Lease and/or the Purchase
Agreement, Tenant may give written notice to Landlord of its intention to
terminate the Lease together with a statement of the nature of such default, and
such termination shall become effective on the thirtieth (30th) day after the
date of such notice unless (a) such default shall be cured within thirty (30)
days after such notice, or (b) if the default is of such a nature that it cannot
be cured within such period, the necessary steps to cure such default are duly
commenced within such period and are thereafter diligently pursued.
15. Holding Over. In case Tenant holds over after the end of
any term herein provided, such tenancy shall be from month to month only, and
not a renewal hereof; subject, however, to every other term, covenant and
condition of this Lease, and the rent shall be at the monthly rate of the last
year of the lease term.
16. Damage or Destruction. In case the Premises are so
injured or damaged by fire or other cause as to be untenantable, Landlord shall
have the right, at its option, within sixty (60) days, to repair and restore the
Premises to tenantable conditions, and the rent shall abate during the period
said Premises are untenantable. Should said Premises not be restored within
sixty (60) days from the date of the fire or other cause rendering them
untenantable, either party thereto may terminate this Lease by giving the other
party written notice of its intention to do so not later than ninety (90) days
after the fire or other cause rendering the Premises untenantable.
17. Condemnation. If any portion of the Premises shall be
taken or condemned by any competent authority for any public or quasi-public use
or purpose so as to render the remaining portion of the Premises unsuited for
Tenant's reasonable uses, even though the entire Premises be not so taken or
condemned, then Tenant, at any time thereafter, shall have the right to
terminate this Lease. Upon the termination of this Lease as herein provided,
Tenant shall be entitled to a refund of all rents paid in advance from the date
of termination to the date through which the rent shall have been paid. Tenant
hereby waives any and all rights to participate in the proceeds of any award
made in any condemnation proceedings for the taking of the Premises, or any
portion thereof, except the right to participate in Tenant's equitable portion
of any proceeds for the loss of Tenant's business at such location, if any.
18. Quiet Enjoyment. Landlord agrees and warrants that
Tenant, keeping and performing the covenants herein contained on the part of
Tenant to be kept and performed, shall at all times during the term of this
Lease peaceably and quietly have, hold and enjoy the Premises.
19. Removal of Trade Fixtures / Related Leases. Upon the
termination of the Lease, all trade fixtures, furniture, equipment and other
personal property which Tenant placed upon the Premises may be removed by
Tenant, provided Tenant shall otherwise leave the Premises in reasonable
condition.
20. Subject to Purchase Agreement. This Lease is made,
executed and delivered pursuant to the Purchase Agreement, and is subject to all
the terms, provisions, and conditions thereof, including (without limitation)
the indemnification therein. To the extent of any conflict between the terms
hereof and thereof, the terms of the Purchase Agreement shall be controlling.
21. Representations and Warranties of Landlord. Landlord
hereby jointly and severally warrants, represents, and covenants as follows:
PAGE 40 of 86
A. Authority. Landlord has full power and authority
to execute this Lease and to consummate the transactions contemplated hereby.
When executed and delivered, this Lease shall constitute valid and binding
obligations of Landlord enforceable in accordance with its terms and conditions
except as enforcement may be limited by applicable bankrupt, insolvency or
similar laws effecting creditors rights generally and by principles of equity.
Neither the execution nor the delivery of this Lease nor the consummation of the
transactions contemplated hereby, nor the compliance with any of the terms and
conditions hereof, will result in the breach by Landlord of any terms,
conditions, or judgment, law or other contract, agreement or instrument to which
Landlord is bound, or constitute a default of such indenture, mortgage, deed of
trust, order, judgment, law or other contract, agreement or instrument.
B. Title to Premises. Upon execution and delivery of
this Lease, Landlord will have good, marketable and insurable title to the
Premises, and will not be indebted to any contractor, laborer, mechanic,
material man or any other person or entity for work, labor, materials or
services in connection with the Premises for which any such person or entity
could claim a lien against the Premises.
C. Consents. No consent of any third party is
required in connection with Landlord's lease of the Premises hereunder.
D. Litigation. There are no judicial or
administrative actions or proceedings pending, or to the best of Landlord's
knowledge threatened, that question the validity of this Lease or any
transaction contemplated hereby or that relate to the Premises, including but
not limited to condemnation or bankruptcy proceedings, which if adversely
determined would have an adverse effect upon Landlord's ability to enter into
this Lease or perform its obligations hereunder or upon the use, enjoyment, or
value of the Premises for Tenant.
E. Payables and Taxes. Landlord will pay all
payables and taxes, assessments, and charges respecting the Premises incurring
prior to the commencement of the term of this Lease within a reasonable amount
of time following the execution and delivery of this Lease.
F. Zoning. To the best of Landlord's knowledge, the
Premises is currently zoned for commercial operations and is in compliance with
applicable zoning laws and ordinances; and Landlord does not know that the
status of such zoning is in question or subject to change by the appropriate
governmental authorities.
G. Environmental. To the best of Landlord's
knowledge, the Premises is not now used and have never been used, as a gasoline
station or other site for the storage of petroleum products, or as a garbage or
refuse dump site, a landfill, a waste disposal facility for the storage,
processing, treatment or temporary or permanent disposal of regulated waste
materials, including without limitation solid, industrial, toxic, hazardous,
radioactive, nuclear or putrescible waste or sewage, and, to the best of
Landlord's knowledge, is in substantial compliance with applicable environmental
laws.
22. Representations and Warranties of Tenant. Tenant hereby
represents, warrants, and covenants as follows:
A. Organization and Good Standing. Tenant is a
corporation duly organized, validly existing, and in good standing under the
laws of the State of South Carolina and has full corporate power to carry on its
businesses and to own and operate its properties and assets as presently owned
and operated. Tenant has taken all corporate action necessary to approve and
authorized the execution of this Lease, and to consummate the transactions
contemplated hereby. When executed and delivered, this Lease shall constitute
valid and binding obligations of Tenant, enforceable in accordance with its
terms and conditions except as enforcement may be limited by applicable
bankrupt, insolvency or similar laws effecting creditors rights generally and by
principles of equity. Neither the execution nor the delivery of this Lease nor
the consummation of the transactions contemplated hereby, nor compliance with
all of the terms and conditions hereof, will result in the breach by Tenant of
any of the terms, conditions or provisions of any trust, order, judgment, law,
or other contract, agreement or instrument to which it is a party, or by which
it is bound, or
PAGE 41 of 86
constitute a default of such indenture, mortgage, deed of trust, order,
judgment, law, or other contract, agreement or instrument.
B. Consents. No consent of any third party is
required in connection with the lease of the Premises hereunder.
C. Litigation. There are no judicial or
administrative actions or proceedings pending, or to the best of Tenant's
knowledge threatened, that question the validity of this Lease or any
transaction contemplated hereby.
23. Binding Effect. This Lease shall inure to the benefit of
the heirs, successors, representatives, and permitted assigns of the parties
hereto, and shall bind the heirs, successors, representatives, and assigns of
the parties hereto.
24. References to Gender and Number Terms. Whenever the
context requires, the singular number shall include the plural, the plural the
singular, and the use of any gender shall include all genders.
25. Days Defined. Any reference in this Lease to a number of
days shall mean calendar days unless otherwise expressly provided.
26. Attorney's Fees. If any action at law or in equity shall
be brought to recover any rent under this Lease, or for or on account of any
breach of or to enforce or interpret any of the covenants, terms or conditions
of this Lease, or for the recovery of the possession of the Premises, the
prevailing party shall be entitled to recover from the other party as part of
the prevailing party's cost a reasonable attorney's fee, the amount of which
shall be fixed by the court and shall be made a part of any judgment rendered.
27. Headings. The headings of the paragraphs of this Lease
are for convenience or reference only and are not a part of this Lease.
28. Modifications. This Lease can only be modified by a
written agreement duly signed by authorized representatives of each party
hereto. Moreover, in order to avoid uncertainty, ambiguity and misunderstandings
in their relationships, the parties hereto covenant and agree not to enter into
any oral agreement or understanding inconsistent or in conflict with this Lease;
and the parties hereto further covenant and agree that any oral communication
allegedly or purportedly constituting such an agreement or understanding shall
be absolutely null, void and without effect.
29. Waiver. Any waiver by either party of any breach or any
term or condition hereof shall be effective only if in writing and such writing
shall not be deemed to be a waiver of any subsequent or other breach, term or
condition of this Lease.
30. Relationship of the Parties. Nothing herein shall be
deemed to create any partnership, joint venture, or agency relationship between
the parties. Neither party shall make any representation or statement (whether
oral or written) to any person or entity inconsistent with this paragraph.
31. Third Parties. The provisions of this Lease are not
intended to be for the benefit of any third parties, and no third party shall be
deemed to have any privity of contract with either of the parties hereto by
virtue of this Lease.
32. Time of Essence. The parties acknowledge and agree that
time is of the essence in the performance of this Lease.
33. Severability. If any provision or provisions of this
Lease shall be held to be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions shall not in any way be
affected or impaired thereby.
PAGE 42 of 86
34. Governing Law. The construction and interpretation of
this Lease shall at all times and in all respects be governed by the laws of the
State of South Carolina.
35. Venue and Jurisdiction. The parties hereto hereby (i)
agrees that any litigation, action or proceeding arising out of or relating to
this Lease may be instituted in a state or federal court in the State of South
Carolina, (ii) waives any objection which it might have now or hereafter to any
such litigation, action or proceeding based upon improper venue or inconvenient
forum, and (iii) irrevocably submits to the jurisdiction of such courts in any
such litigation, action or proceeding. For all purposes of this Lease, the
parties hereto irrevocably consents to personal jurisdiction of such courts, and
further agrees that service of process upon such party may be effected pursuant
to the United States mail.
36. No Inference Against Author. No provision of this Lease
shall be interpreted against any party because such party or its legal
representative drafted such provision.
37. Entire Lease. This Lease constitutes the entire agreement
between the parties with respect to the subject matter hereof and supersedes all
prior contemporaneous written or oral agreements and representations between the
parties with respect thereto.
38. Recordation. This Lease or a memorandum hereof may be
recorded by either party. The parties agree to execute for recording purposes
any such memorandum.
39. Notices. Any notice, request, approval, consent, demand
or other communication shall be effective upon the first to occur of the
following: (i) upon receipt by the party to whom such notice, request, approval,
consent, demand or other communication is being given; or (ii) three (3)
business days after being duly deposited in the United States mail, certified or
registered, return receipt requested, and addressed as follows:
Landlord: Elaine B. Baxley, M.D.
206 Firetower Road
Camden, SC 29020
Tenant: UCI Medical Affiliates of South Carolina, Inc.
6168 St. Andrews Road
Columbia, SC 29212
Attn.: Stephen Seeling, Esquire
The parties hereto may change their respective addresses by notice in writing
given to the other party to this Lease.
[SIGNATURE PAGE ATTACHED]
PAGE 43 of 86
IN WITNESS WHEREOF, the parties hereto have executed this Lease
Agreement to be effective as of the day and year first above written.
IN THE PRESENCE OF: LANDLORD:
/s/ Julian Hennig, III /s/ E. B. Baxley, M.D.
(Witness) ELAINE B. BAXLEY, M.D.
/s/ Charles Baxley
(Witness)
/s/ Julian Hennig, III /s/ Ronald Paul Hargrave, M.D.
(Witness) RONALD PAUL HARGRAVE, M.D.
/s/ Charles Baxley
(Witness)
/s/ Julian Hennig, III /s/ Guy B. Kahler, M.D.
(Witness) GUY B. KAHLER, M.D.
/s/ Charles Baxley
(Witness)
TENANT:
UCI MEDICAL AFFILIATES OF SOUTH
CAROLINA, INC.
/s/ Julian Hennig, III By: /s/ M.F. McFarland, III, M.D.
(Witness as to Tenant) Its: President
/s/ Charles Baxley
(Witness as to Tenant)
[GUARANTY ATTACHED HERETO]
PAGE 44 of 86
GUARANTY
The undersigned UCI MEDICAL AFFILIATES, Inc., a Delaware corporation
("UCI"), hereby irrevocably and unconditionally guarantee the proper and timely
performance and/or full and timely payment of each and every term, obligation,
covenant, representation and warranty of UCI MEDICAL AFFILIATES OF SOUTH
CAROLINA, INC. ("UCI of SC") contained in the foregoing Lease Agreement (the
"Lease") by and between UCI of SC as Tenant, and Elaine B. Baxley, M.D.; Ronald
Paul Hargrave, M.D.; Guy B. Kahler, M.D. collectively as Landlord respecting the
premises located at 1060 Highway 1 South, Lugoff, South Carolina and dated June
11, 1996, as amended from time to time. This guaranty is a guarantee of payment
and not of collection and shall survive any amendment or termination of the
Lease until all obligations of UCI of SC under the Lease are satisfied in full.
UCI hereby waives presentment, demand, protest, notice of non-payment, notice of
default, notice of compromise or surrender, and any other demand or notice
whatsoever in connection with this Guaranty. In the event this Guaranty is
placed in the hands of an attorney for collection, all expenses of the
prevailing party, including reasonable attorney's fees, shall be added to this
Guaranty and collected as a part hereof. This Guaranty shall be governed by and
construed in accordance with the laws of the State of South Carolina.
IN THE PRESENCE OF: UCI MEDICAL AFFILIATES, INC.
/s/ Julian Hennig, III By:/s/ M.F. McFarland, III, M.D.
(Witness) Its: President
/s/ Charles Baxley
(Witness)
PAGE 45 of 86
STATE OF SOUTH CAROLINA )
) PROBATE
COUNTY OF KERSHAW )
PERSONALLY appeared before me the undersigned witness and made oath
that s/he saw the within-named ELAINE B. BAXLEY, M.D. sign, seal, and as his/her
act and deed, deliver the within-written instrument for the uses and purposes
therein mentioned, and that s/he with the other witness whose signature appears
above, witnessed the execution thereof.
/s/ Charles Baxley
WITNESS
SWORN TO before me this
11th day of June, 1996.
/s/ Julian Hennig, III (L.S.)
Notary Public for South Carolina
My Commission Expires: 1-10-2000
STATE OF SOUTH CAROLINA )
) PROBATE
COUNTY OF KERSHAW )
PERSONALLY appeared before me the undersigned witness and made oath
that s/he saw the within-named RONALD PAUL HARGRAVE, M.D. sign, seal, and as
his/her act and deed, deliver the within-written instrument for the uses and
purposes therein mentioned, and that s/he with the other witness whose signature
appears above, witnessed the execution thereof.
/s/ Charles Baxley
WITNESS
SWORN TO before me this
11th day of June, 1996.
/s/ Julian Hennig, III (L.S.)
Notary Public for South Carolina
My Commission Expires: 1-10-2000
PAGE 46 of 86
STATE OF SOUTH CAROLINA )
) PROBATE
COUNTY OF KERSHAW )
PERSONALLY appeared before me the undersigned witness and made oath
that s/he saw the within-named GUY B. KAHLER, M.D. sign, seal, and as his/her
act and deed, deliver the within-written instrument for the uses and purposes
therein mentioned, and that s/he with the other witness whose signature appears
above, witnessed the execution thereof.
/s/ Charles Baxley
WITNESS
SWORN TO before me this
11th day of June, 1996.
/s/ Julian Hennig, III (L.S.)
Notary Public for South Carolina
My Commission Expires: 1-10-2000
STATE OF SOUTH CAROLINA )
) PROBATE
COUNTY OF KERSHAW )
PERSONALLY appeared before me the undersigned witness and made oath
that s/he saw the within-named UCI Medical Affiliates of South Carolina, Inc.,
by M.F. McFarland, III, M.D., its President, sign, seal, and as its act and
deed, deliver the within-written instrument for the uses and purposes therein
mentioned, and that s/he with the other witness whose signature appears above,
witnessed the execution thereof.
/s/ Charles Baxley
WITNESS
SWORN TO before me this 11th day of June, 1996.
/s/ Julian Hennig, III (L.S.)
Notary Public for South Carolina
My Commission Expires: 1-10-2000
PAGE 47 of 86
STATE OF SOUTH CAROLINA )
) PROBATE
COUNTY OF KERSHAW )
PERSONALLY appeared before me the undersigned witness and made oath
that s/he saw the within-named UCI Medical Affiliates, by M.F. McFarland, III,
M.D., its President, sign, seal, and as its act and deed, deliver the
within-written instrument for the uses and purposes therein mentioned, and that
s/he with the other witness whose signature appears above, witnessed the
execution thereof.
/s/ Charles Baxley
WITNESS
SWORN TO before me this
11th day of June, 1996.
/s/ Julian Hennig, III (L.S.)
Notary Public for South Carolina
My Commission Expires: 1-10-2000
PAGE 48 of 86
SCHEDULE 1
Legal Description of the Premises
All that piece, parcel or lot of land containing .51 acre, with improvements
thereon, if any, lying, being and situate in the Community of Lugoff, County of
Kershaw, State of South Carolina, and being bound as follows: NORTHWEST by other
property of Plantation Development; NORTHEAST by property of Kershaw Baptist
Association; SOUTHEAST by the right-of-way of U.S. Highway No. 1; and SOUTHWEST
by other property of Plantation Development.
The foregoing is more clearly shown on a plat prepared for Wateree Medical
Center, Owners: Elaine B. Baxley, M.D., Guy B. Kahler, M.D. and Ronald P.
Hargrave, M.D. by S. Tetterton, R.L.S., dated August 8, 1988, and recorded in
the office of the Clerk of Court for Kershaw County in Plat Book 38 at page 813,
incorporation of which is made by specific reference thereto.
PAGE 49 of 86
Exhibit G
PHYSICIAN SERVICES AGREEMENT
This Physician Services Agreement ("Agreement") is made and entered
into as of June 11, 1996, to be effective as of June 12, 1996, by and between
Emergency Medicine Specialists, P.A., a South Carolina professional association
("EMS"), and Doctor's Care, P.A., a South Carolina professional association
("Doctor's Care").
INTRODUCTION. UCI Medical Affiliates of South Carolina, Inc., a South
Carolina corporation ("Buyer"), 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. Wateree Emergency
Specialists, a South Carolina professional corporation d/b/a Wateree Medical
Center (""Wateree"), owns and operates a medical practice located at 1060
Highway 1 South, Lugoff, South Carolina 29078 ("Premises").
Wateree, Buyer, Doctor's Care, and EMS among others have entered into
that certain Asset Purchase Agreement And Plan Of Reorganization, dated as of
June 11, 1996 (the "Purchase Agreement") respecting the sale by Wateree to Buyer
of substantially all of the assets of Wateree, which assets are utilized in
Wateree's business at the Premises. In connection with the above-described sale
of assets, EMS, as an independent contractor, desires to supply physicians to
Doctor's Care to staff the Premises pursuant to the terms and conditions
contained herein.
AGREEMENT. In consideration of the foregoing, and the mutual promises
contained herein and other valuable consideration, the legal sufficiency of
which is hereby acknowledged, Doctor's Care and EMS hereby agree as follows:
1. Term.
1.1 Initial Term. The initial term of this Agreement shall
commence on the effective date hereof, and shall continue unless earlier
terminated pursuant to Section 5 hereof for a term of two (2) years ending at
midnight on June 11, 1998 (the "Initial Term").
1.2 Additional Terms. This Agreement shall renew for
consecutive additional one (1) year terms (collectively the "Additional Terms"
or singularly an "Additional Term") unless either party hereto delivers written
notice to the other party hereto on or before ninety (90) days prior to the
expiration of the then existing term stating such party's desire not to renew
this Agreement.
2. EMS's Responsibilities. In addition to the other specific
obligations set forth herein, EMS shall be responsible for the following:
2.1 Professional Services. During the term of this Agreement,
EMS, as an independent contractor, shall provide to Doctor's Care primarily at
the Premises and any other Doctor's Care's facility determined by mutual
agreement of the parties hereto, the services of physicians licensed in the
State of South Carolina, who are employed by EMS, and who have been prior
approved by Doctor's Care (the "Approved Physicians"), all as set forth herein
(the "Physician Services"). On or before the twentieth (20th) day of each month,
EMS shall deliver to Doctor's Care, for Doctor's Care's review and approval
which cannot be unreasonably withheld, a physician work schedule of the Premises
for all hours of operation during the succeeding month. Such schedule shall
include an average of no less than sixty (60) hours per week of Physician
Services to be provided by EMS hereunder. The remainder of the physician hours
necessary to staff the Premises during all hours of operation shall be supplied
by Doctor's Care. In the event that such schedule is not approved by Doctor's
Care, EMS shall be required to provide a revised physician schedule to Doctor's
Care, for Doctor's Care's review and approval which cannot be unreasonably
withheld, within two (2) calendar days after notice of such unapproved schedule
is given to EMS. In the
PAGE 50 of 86
event such revised schedule is not acceptable to Doctor's Care, the parties
hereto acknowledge that the schedule of physician services at the Premises shall
be determined Doctor's Care in its sole discretion; provided however, Doctor's
Care cannot schedule any employee of EMS to work during any work shift without
the consent of EMS. The parties hereto acknowledge that the services of more
than one Approved Physician may be scheduled to be provided simultaneously to
Doctor's Care hereunder. It is anticipated that the services of at least one
Approved Physician will be scheduled to be provided to Doctor's Care's facility
at the Premises on at least every other Saturday during the term of this
Agreement. The parties hereto acknowledge that EMS shall have complete
discretion to determine which Approved Physician(s) provides Physician Services
to Doctor's Care hereunder. The Approved Physicians shall be determined in
accordance with Section 6 hereof. EMS shall have complete control of and
responsibility for the hiring, compensation, supervision, training, evaluation
and termination of all employees of EMS, including but not limited to the
Approved Physicians. Subject to the foregoing, the parties hereto agree to
cooperate in the physician staffing of the Premises in the event of a personal
or family emergency or illness.
2.2 Application of Standards. Doctor's Care agrees not to
interfere with any Approved Physician's independent medical judgment relating to
the services to be rendered under this Agreement. EMS acknowledges and agrees
that all Approved Physicians shall perform their duties under this Agreement in
conformity with and shall comply with: (i) all applicable standards, rulings,
regulations and requirements of the United States Department of Health and Human
Services, the South Carolina Department of Health and Environmental Control, and
any federal, state, or local government agency, or accrediting body having
jurisdiction over the services provided by Doctor's Care and/or the Approved
Physicians and any programs and services offered by Doctor's Care; (ii) the
policies, rules and regulations of Doctor's Care (including those of any
department, section or division thereof), as the same may be amended and in
effect from time to time; (iii) the Principles of Medical Ethics of the American
Medical Association; and (iv) the standard of care required of physicians
practicing in the State of South Carolina.
2.3 Expenses/Insurance. At all times during the term of this
Agreement, EMS shall be solely responsible to provide, and shall provide, on
behalf of each Approved Physician providing Physician Services hereunder any and
all employee benefits including but not limited to worker's compensation
coverage (if required by law) and professional liability insurance in maximum
amounts as are offered by the Joint Underwriters Association and the South
Carolina Patient's Compensation Fund, or, if with another insurance company
licensed in the State of South Carolina, "occurrence" coverage of at least
$1,000,000 annual/$3,000,000 aggregate. During the term of this Agreement,
Doctor's Care and UCI of SC shall be listed as additional insureds under such
policies, and such insurance coverage shall provide Doctor's Care and UCI of SC
with at least thirty (30) days prior written notice of cancellation,
non-renewal, or material amendment. Upon written request at any time during the
term of this Agreement, EMS shall promptly provide Doctor's Care and UCI of SC
with written evidence in form and substance reasonably satisfactory to Doctor's
Care and UCI of SC of such insurance. At the execution of this Agreement, EMS
shall provide to Doctor's Care written evidence in form and substance reasonably
satisfactory to Doctor's Care of such insurance.
2.4 Administrative Duties. EMS shall perform such
administrative duties on behalf of Doctor's Care and EMS as are determined by
Doctor's Care to be reasonable and necessary to ensure the proper and efficient
operation of Doctor's Care's business, including but not limited to all record
keeping for patients treated by Approved Physicians hereunder shall be the sole
responsibility of EMS, and each Approved Physician shall complete all such
charts and records for such patients in accordance with the highest medical
standards.
2.5 Licensure; Narcotics. EMS shall ensure that during the
term of this Agreement, all Approved Physicians supplying Physician Services
hereunder are (a) duly licensed to practice medicine in the State of South
Carolina, and (b) have all required narcotics and controlled substances numbers.
2.6 Programs. Upon the reasonable request of Doctor's Care,
EMS and its Approved Physicians shall execute any agreements necessary for
Doctor's Care's participation in and reimbursement from public or private third
party payers including, but not limited to, insurance, HMO, Medicaid,
PAGE 51 of 86
Medicare, and other private managed care programs with whom Doctor's Care
otherwise contracts as a participant or a provider. Notwithstanding anything
contained in this Section 2.6, at no time shall the medical judgment of the
Approved Physicians related to patient care, patient management, or medical
treatment of the patients of Doctor's Care be limited by this Section 2.6.
2.7 Patients. EMS agrees that all patient lists, records, and
charts for patients treated by Approved Physicians hereunder are the property of
Doctor's Care, and that upon termination of this Agreement for any reason, EMS
and the Approved Physicians shall not be entitled to receive any patient list,
records, or charts.
3. Doctor's Care's Duties. In addition to the other covenants and
obligations set forth herein, Doctor's Care shall have the following duties:
3.1 Management. Doctor's Care and/or UCI of SC shall provide
comprehensive management services for all Doctor's Care facilities, including
without limitation, billing, collection, payment of all expenses, and all other
necessary duties attendant to the proper management of a medical office.
Doctor's Care and/or UCI of SC shall be solely responsible for the employment
and termination decisions regarding nurses and staff other than the Approved
Physicians.
3.2 Facilities/Supplies. Doctor's Care and/or UCI of SC shall
provide suitable office space and facilities, furniture, fixtures, equipment,
supplies and employees and assistants necessary and appropriate for the proper
performance of the duties of the Approved Physicians hereunder; provided
however, EMS and/or the Approved Physician shall supply such Approved Physician
with any necessary doctor's lab coat and stethoscope.
4. Compensation.
4.1 Initial Term. Subject to Section 10 herein, during the
term of this Agreement, Doctor's Care shall pay to EMS for each hour of
Physician Services provided to Doctor's Care during the Initial Term, the sum of
Eighty-Six and 50/100 ($86.50) Dollars (the "Fee"), payable no less frequently
than monthly.
4.2 Additional Term. Subject to Section 10 herein, during the
term of this Agreement, Doctor's Care shall pay to EMS for each hour of
Physician Services provided to Doctor's Care during any Additional Term as
defined in Section 1.2 hereof, no less frequently than monthly, the Fee adjusted
as follows: upon the first anniversary of the commencement of Initial Term (as
defined in Section 4.1, and continuing during each Additional Term as defined
Section 1.2 hereof, the Fee shall be adjusted to reflect any increase (but not
decrease) in the numerical level of the Consumer Price Index for all Urban Wage
Earners and Clerical Workers (base year 1967=100) most recently published by the
Bureau of Labor Statistics of the United States Department of Labor ("CPI").
Each such adjustment shall be determined by dividing the CPI indicator from the
month immediately prior to the commencement of the just commenced Additional
Term, by the CPI indicator published for the month preceding the commencement of
the immediately prior Initial or Additional Term, whichever applicable (provided
however, for purposes hereof in no event shall such resultant number be less
than three (3.0%) percent, nor greater than six (6.0%) percent), and then
multiplying the resultant number by the last adjusted Fee as determined in this
Section 4. In the event the CPI is not available in time to make the
computation, the adjustment will be made retroactively to such commencement of
such Additional Term at such time as the CPI is available. If the base for the
CPI is so changed that 1967 prices are no longer taken as representing 100, an
appropriate adjustment will be applied to the published indices so as to relate
them to the aforesaid base in which 1967 prices are taken as representing 100.
In the event the CPI is discontinued, such other substantially similar
government index or publication as chosen by EMS for a reasonable replacement
shall be used for such adjustment.
PAGE 52 of 86
5. Termination. Upon a breach of any term of this Agreement which is
not cured to the non-breaching party's reasonable satisfaction within thirty
(30) days after written notice thereof, the non-breaching party hereto may
terminate this Agreement upon written notice to the breaching party.
6. Approved Physicians. For purposes hereof, the initial Approved
Physicians shall be Elaine B. Baxley, M.D.; Ronald P. Hargrave, M.D.; and Guy B.
Kahler, M.D. No other physician may provide services hereunder unless such
physician is approved as an Approved Physician by Doctor's Care in writing in
advance of such physician providing services hereunder. Such approval by
Doctor's Care shall not be unreasonably withheld. Notwithstanding the foregoing,
unless waived in writing by Doctor's Care, a physician shall not be approved as
an Approved Physician hereunder in the event such physician (i) is not licensed
to practice medicine in the State of South Carolina, (ii) losses such
physician's controlled substances number; or (iii) is not Board Certified in
Family Practice, Emergency Medicine, or Internal Medicine.
7. Independent Contractor. It is mutually understood and agreed that
EMS and its agents (including the Approved Physicians) shall be and at all times
shall act and perform as independent contractors. As an independent contractor,
EMS shall be responsible for the payment of all applicable salaries and wages of
EMS's employees and agents, as well as all applicable federal, state, and local
taxes and any payments related to unemployment compensation.
8. Fees For Services Provided To Patients. EMS acknowledges that all
fees receivable, received or collected as a result of EMS's and the Approved
Physicians' professional medical services rendered hereunder, together with all
emoluments, e.g. witness fees, report fees, etc., shall be the sole and
exclusive property of Doctor's Care. Accordingly EMS hereby acknowledges and
assigns to Doctor's Care any and all fees related to the Physician Services
provided hereunder, regardless of whether such fees are collected during or
after the term of this Agreement.
9. Indemnity Rights.
9.1 General Indemnity. EMS shall indemnify and hold Doctor's
Care, UCI of SC, and UCI Medical Affiliates, Inc., a Delaware corporation and
parent corporation of UCI of SC ("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 Doctor's Care, UCI, or UCI of SC as a result of any
breach by EMS or its agents (including the Approved Physicians) of any covenant,
warranty, representation, or agreement, made by EMS 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. EMS shall indemnify and hold Doctor's
Care, UCI, and UCI of SC and their respective officers, directors, and agents
harmless from any and all losses, damages, liabilities, claims, suits, demands,
penalties, taxes, assessments, obligations, causes of action, or costs
(including reasonable litigation expenses and legal fees) asserted against or
incurred by Doctor's Care, UCI, or UCI of SC as a result of:
9.2.1 Malpractice. Any negligent or willful act or
omission of EMS or its agents (including the Approved Physicians), including but
not limited to any medical malpractice claim asserted against EMS, UCI, UCI of
SC, Doctor's Care, and/or any Approved Physician arising out of, or in any way
related to, this Agreement and/or the services provided by EMS to Doctor's Care
hereunder.
9.2.2 Independent Contractor Status. Any
determination by the Internal Revenue Service, South Carolina Department of
Revenue, or any other governmental agency, court, or tribunal that any Approved
Physician providing services hereunder is an employee of Doctor's Care, UCI
and/or UCI of SC.
PAGE 53 of 86
9.3 Survival. The terms of this Section 9 shall
survive the termination or expiration of this Agreement.
10. Non-Disclosure of Information. During the term of this Agreement
and for a period of three (3) years after the termination or expiration of this
Agreement for any reason, EMS shall not directly or indirectly, divulge or
disclose for any purpose whatsoever any confidential information that has been
developed or obtained by, or disclosed to, EMS and/or the Approved Physicians at
any time on or after the date hereof (exclusive of such information as is in the
public domain). EMS acknowledges that such confidential information is of a
special and unique nature and value relating to matters of the Doctor's Care and
UCI of SC's business, including without limitation, Doctor's Care's procedures,
manuals, confidential reports, records, operational expertise, lists of patients
and potential patients, pricing information and lists, and marketing materials
and methods (all of which are deemed for all purposes to be confidential,
proprietary, and trade secrets of the Doctor's Care and UCI of SC). Any
confidential information in EMS's possession shall be returned to the Doctor's
Care upon any termination or expiration of this Agreement. The terms of this
Section shall survive the termination or expiration of this Agreement.
11. Covenants against Competition. In consideration of the restrictions
and covenants contained herein and such other consideration set forth in this
Agreement, the receipt and adequacy of which are hereby acknowledged, EMS
covenants as follows:
11.1 Patients, Etc. During the term of this Agreement and for
a period of three (3) years after the termination or expiration of this
Agreement for any reason, EMS shall not, directly or through an Affiliate (as
defined below), (i) solicit or divert (or assist another person or entity to
solicit or divert) any DC Patient (as defined below) from purchasing or using
any of Doctor's Care's and/or UCI of SC's services, or (ii) provide anywhere in
the Territory (as defined below) medical care or services in any primary,
urgent, general family, or industrial or occupational medical care facility or
practice providing the same or similar services provided or offered by Doctor's
Care and/or UCI of SC. For purposes of this Section 11.1, the term "DC Patient"
shall mean any patient of Doctor's Care and/or UCI of SC and shall include
(without limitation) every such person to which EMS and/or any agent of EMS
(including any Approved Physician) provides or has provided medical services
hereunder directly or indirectly on behalf of Doctor's Care or UCI of SC. For
purposes hereof, the term "Territory" shall mean everywhere within a fifteen
(15) mile radius of the Premises.
11.2 Ownership. During the term of this Agreement and for a
period of three (3) years after the termination or expiration of this Agreement
for any reason, in addition to (but not in limitation of) the restrictions of
Section 11.1, EMS shall not, directly or through an Affiliate (as defined
below), own an equity interest (other than as the holder for investment purposes
only of up to 2% of the outstanding capital stock of any corporation which is
publicly traded on a national stock exchange or the NASDAQ National Market
System, so long as EMS is not a controlling person of, or a member of a group
that controls, such corporation, and EMS is not otherwise affiliated in any
capacity with such corporation) in any entity or enterprise conducting
operations in the Territory which is competitive with the business activities
engaged in by Doctor's Care and/or UCI of SC.
11.3 Employees. During the term of this Agreement and for a
period of three (3) years after the termination or expiration of this Agreement
for any reason, in addition to (but not in limitation of) the restrictions of
Sections 11.1 and 11.2, EMS 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, Doctor's Care or UCI of SC to terminate such
person's association or contract of employment or agency, as the case may be,
with Doctor's Care and/or UCI of SC.
11.4 Definition of Affiliate. For purposes of this Agreement,
an "Affiliate" of EMS 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 EMS. 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
PAGE 54 of 86
such person or any of the persons specified in Section 11.4(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 11.4(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.
11.5 Exception. Notwithstanding the foregoing, EMS shall not
be deemed to be in violation of any covenant contained herein as a result of
EMS's or its agents' (including any Approved Physician): (i) providing urgent or
emergency medical services within the emergency room of any medical facility
licensed as a hospital in the State of South Carolina, or (ii) providing
emergency care to any patient in a potentially life-threatening situation, or
(iii) providing medical services directly or indirectly on behalf of Doctor's
Care, or (iv) providing medical services to any family member by blood or
marriage to Elaine B. Baxley, M.D., Ronald P. Hargrave, M.D., or Guy B. Kahler,
M.D., within the third degree of consanguinity.
11.6 The terms of this Section 11 shall survive the
termination or expiration of this Agreement.
12. Remedies.
12.1 Injunctive Relief. In the event of a breach or threatened
breach by EMS or any of its agents (including any Approved Physician) of any of
the provisions of Sections 10 or 11 hereof, Doctor's Care and/or UCI of SC, in
addition to, and not in limitation of, any other rights, remedies, or damages
available to Doctor's Care and/or UCI of SC 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 EMS or by EMS's
partners, agents, representatives, servants, employers, employees, companies,
consulting clients, and/or any and all persons directly or indirectly acting for
or with EMS. EMS agrees that in the event of any breach by EMS of the covenants
set forth in this Agreement, Doctor's Care and UCI of SC shall suffer
irreparable harm for which the remedy of monetary damages may be inadequate.
12.2 The terms of this Section 12 shall survive the
termination or expiration of this Agreement.
13. Reasonableness of Restrictions.
13.1 Acknowledgment. EMS has carefully read and considered the
provisions of Sections 10, 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, the geographical areas of
restriction, and the scope of restricted activities set forth in Section 11, are
fair and reasonable and are reasonably required for the protection of the
legitimate interests of Doctor's Care and UCI of SC, and their respective parent
or subsidiary corporations, partnerships, officers, directors, partners,
employees and affiliates, including but not limited to UCI. The parties hereto
acknowledge that EMS and its agents (including the Approved Physicians) during
the term of this Agreement will make use of, acquire, and add to confidential
and proprietary information and trade secrets of Doctor's Care and/or UCI of SC,
and will develop unique relationships with patients, suppliers, and employees of
Doctor's Care and/or UCI of SC and unique information and knowledge about the
competitive market, locations, potential patients and customers, processes and
prospects of Doctor's Care and UCI of SC's business. Doctor's Care has required,
as a condition precedent to its enter into this Agreement, that EMS covenant not
to divulge any confidential information and not to compete with Doctor's Care
and/or UCI of SC as set forth herein. EMS has agreed to provide such covenants
as set forth herein as a material inducement to Doctor's Care to enter into this
Agreement and in consideration of the payments to be made hereunder.
13.2 Enforcement. In the event that, notwithstanding the
foregoing, any of the provisions of Sections 10, 11, or 13 or any parts thereof
shall be held to be invalid or unenforceable, the
PAGE 55 of 86
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 10 or 11
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.
13.3 The terms of this Section 13 shall survive the
termination or expiration of this Agreement.
14. Modifications. This Agreement can only be modified by a written
agreement duly signed by authorized representatives of the parties hereto, and
variances from or addition to the terms and conditions of this Agreement in any
order or other writing from the Customer will be of no effect. 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.
15. 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.
16. Relationship of the Parties. Nothing herein shall be deemed to
create any partnership, joint venture, or agency relationship between the
parties. Neither party shall make any representation or statement (whether oral
or written) to any person or entity inconsistent with this Section.
17. Third Parties. Other than UCI and UCI of SC, the provisions of this
Agreement are not intended to be for the benefit of any third parties, and no
third party shall be deemed to have any privity of contract with either of the
parties hereto by virtue of this Agreement.
18. Assignments. Neither this Agreement nor any rights hereunder may be
assigned or otherwise transferred by either party without the prior written
consent of the other party hereto.
19. Cumulative Remedies. All rights and remedies of a party hereunder
shall be cumulative and in addition to such rights and remedies as may be
available to a party at law or equity.
20. Venue and Jurisdiction. The parties hereto hereby (i) agree that
any litigation, action or proceeding arising out of or relating to this
Agreement may be instituted in a state or federal court in South Carolina, (ii)
waive any objection which it might have now or hereafter to any such litigation,
action or proceeding based upon improper venue or inconvenient forum, and (iii)
irrevocably submit to the jurisdiction of such courts in any such litigation,
action or proceeding. For all purposes of this Agreement, each party hereto
hereby submits to the venue and jurisdiction of the courts in the State of South
Carolina (federal and state), irrevocably consents to personal jurisdiction of
such courts, and further agrees that service of process upon each party hereto
may be effected pursuant to United States mail.
21. Collection. If it is necessary for either party hereto to employ
attorneys for the collection of amounts payable hereunder or to enforce any
right hereunder, all costs and expenses of the prevailing party incident to such
collection or enforcement, including without limitation reasonable fees of such
attorneys, shall be paid by the non-prevailing party.
PAGE 56 of 86
22. Severability. If any provision or provisions of this Agreement
shall be held to be invalid, illegal or unenforceable, the validity, legality
and enforceability of the remaining provisions shall not in any way be affected
or impaired thereby.
23. 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.
24. 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.
25. Captions and Headings. The captions and headings are inserted in
this Agreement for convenience only, and in no event be deemed to define, limit
or describe the scope or intent of this Agreement, or of any provision hereof,
nor in any way affect the interpretation of this Agreement.
26. Usage. All pronouns and defined terms appearing herein shall be
deemed to include both the singular and plural, and to refer to all genders,
unless the context clearly requires otherwise. The words "hereby", "herein",
"hereof", "hereunder" and words of similar import shall refer to this Agreement
in its entirety and not to any particular provision or subdivision hereof. The
words "Section" or "Article" shall refer to the referenced portions of this
Agreement.
27. 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:
Doctor's Care: Doctor's Care, P.A.
6168 St. Andrews, Road
Columbia, SC 29212-3132
Attn.: M.F. McFarland, III, MD
EMS: Emergency Medicine Specialists, P.A.
206 Firetower Road
Camden, SC 29020
Attn: Elaine B. Baxley, M.D.
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.
28. Counterparts. This Agreement may be executed simultaneously in
several counterparts, each of which shall be deemed an original but which
together shall constitute one and the same original.
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IN WITNESS WHEREOF, the parties have entered into this Agreement as of
the date and year first above written.
IN THE PRESENCE OF: EMS:
EMERGENCY MEDICINE SPECIALISTS, P.A.
/s/ Julian Hennig, III By: /s/ E.B. Baxley, M.D.
(Witness as to EMS) Its: President
/s/ Charles Baxley
(Witness as to EMS)
DOCTOR'S CARE:
DOCTOR'S CARE, P.A.
/s/ Julian Hennig, III By: /s/ M.F. McFarland, III, M.D.
(Witness as to Doctor's Care) Its: President
/s/ Charles Baxley
(Witness as to Doctor's Care)
[GUARANTY ATTACHED HERETO]
PAGE 58 of 86
GUARANTY
The undersigned shareholders of Emergency Medicine Specialists, P.A., a
South Carolina professional association ("EMS"), hereby irrevocably and
unconditionally guarantee, jointly and severally, the proper and timely
performance and/or full and timely payment of each and every term, obligation,
covenant, representation and warranty of EMS contained in the foregoing
Physician Services Agreement (the "Agreement") by and between EMS and Doctor's
Care, P.A., a South Carolina professional association, dated effective as of
June 12, 1996, as amended from time to time. This guaranty is a guarantee of
payment and not of collection and shall survive any amendment or termination of
the Agreement until all obligations of EMS under the Agreement are satisfied in
full. Each of the undersigned hereby waives presentment, demand, protest, notice
of non-payment, notice of default, notice of compromise or surrender, and any
other demand or notice whatsoever in connection with this Guaranty. In the event
this Guaranty is placed in the hands of an attorney for collection, all expenses
of the prevailing party, including reasonable attorney's fees, shall be added to
this Guaranty and collected as a part hereof. This Guaranty shall be governed by
and construed in accordance with the laws of the State of South Carolina.
IN THE PRESENCE OF:
/s/ Julian Hennig, III /s/ E. B. Baxley, M.D.
(Witness) Elaine B. Baxley, M.D.
/s/ Charles Baxley
(Witness)
/s/ Julian Hennig, III /s/ Ronald P. Hargrave, M.D.
(Witness) Ronald P. Hargrave, M.D.
/s/ Charles Baxley
(Witness)
/s/ Julian Hennig, III /s/ Guy B. Kahler, M.D.
(Witness) Guy B. Kahler, M.D.
/s/ Charles Baxley
(Witness)
PAGE 59 of 86
Exhibit H
NON-COMPETITION COVENANT
THIS NON-COMPETITION COVENANT ("Agreement"), is made and entered into
to be effective as of this 11th day of June, 1996, by and between UCI Medical
Affiliates of South Carolina, Inc., a South Carolina corporation ("Buyer"), and
("Shareholder").
Preliminary Statement
Shareholder is currently an officer and shareholder of Wateree
Emergency Specialists, P.A., a South Carolina professional corporation d/b/a
Wateree Medical Center ("Seller"). Buyer owns and/or leases various
medical-related facilities and equipment in South Carolina and has contracted
with Doctor's Care, P.A., a South Carolina professional corporation ("Doctor's
Care"), to provide health care services at such facilities.
Seller, Buyer, Shareholder, UCI Medical Affiliates, Inc., and Doctor's
Care among others have entered into that certain Asset Purchase Agreement And
Plan of Reorganization, dated as of June 11, 1996 (the "Purchase Agreement")
respecting the sale by Seller to Buyer of substantially all of the assets of
Seller (the "Assets"), which assets are utilized in Seller's business of a
medical practice located at 1060 Highway 1 South, Lugoff, Kershaw County, South
Carolina (the "Business"). Also, pursuant to that certain Lease Agreement dated
the date hereof (the "Lease"), Seller shall lease certain real estate and
improvements located at 1060 Highway 1 South, Lugoff, South Carolina at which
the Business is operated (the "Building").
Seller has conducted the Business for a substantial number of years,
and Shareholder has been an officer, director, shareholder, and employee of the
Business since Seller's incorporation in 1989. Thereby, Shareholder has made use
of, acquired, and added to confidential and proprietary information and trade
secrets of Seller, all of which are portions of the Assets of Seller (which
Assets are being sold to Buyer pursuant to the Purchase Agreement).
Shareholder also has developed unique relationships with patients,
suppliers, and employees of Seller and unique information and knowledge about
the competitive market, locations, potential patients, processes and prospects
of Seller's Business.
Buyer intends to operate the Assets acquired by it for Buyer's business
similar to Seller's Business. The value of Buyer's acquisition would be
diminished in the event that Shareholder were to compete with Buyer and/or
Doctor's Care, to assist another person or entity to compete with Buyer and/or
Doctor's care, or to wrongfully divulge any confidential information.
Buyer has required, as a condition precedent to its purchase of such
Assets and lease of the Building pursuant to the Purchase Agreement, that
Shareholder covenant not to divulge any confidential information and not to
compete with Buyer and/or Doctor's Care as set forth herein.
Shareholder has agreed to provide such covenants as set forth herein as
a material inducement to Buyer to enter into and close the Purchase Agreement
and in consideration of the payments to be made thereunder. Shareholder's
covenants contained herein are ancillary to the Purchase Agreement. Shareholder
acknowledges that he/she will benefit from the Purchase Agreement.
Pursuant to the Purchase Agreement, Buyer and Shareholder desire to set
forth the terms and conditions of their agreements and understandings respecting
such covenants.
PAGE 60 of 86
Statement of Agreement
NOW, THEREFORE, in consideration of the foregoing premises, the
promises set forth herein, the Purchase Agreement, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
Shareholder and Buyer, intending to be legally bound, hereby agree and covenant
as follows:
1. Non-Disclosure of Information. Shareholder shall not, at any time
after the date hereof, directly or indirectly, divulge or disclose for any
purpose whatsoever any confidential information that has been developed or
obtained by, or disclosed to, Shareholder at any time before or after the date
hereof (exclusive of such information as is in the public domain or as is
required to be disclosed pursuant to an applicable law, rule, regulation, or
final non-appealable order of a court of competent jurisdiction). Shareholder
acknowledges that such confidential information is of a special and unique
nature and value relating to matters of Seller's Business, including, without
limitation, Seller's lists of patients and potential patients, leases or
contacts (which were specifically targeted by Seller prior to Closing), pricing
information and lists, sales and marketing materials and methods, proprietary
information, trade secrets, trademarks, systems, procedures, manuals,
confidential reports, records, operational expertise, the nature and type of
services rendered by Seller, the equipment and methods used and preferred by
Seller's patients and customers, and the fees paid by them (all of which are
deemed for all purposes to be confidential, proprietary, and trade secrets of
Seller transferred to Buyer pursuant to the Purchase Agreement).
2. Covenants against Competition. For a period of three (3) years after
the effective date hereof:
a. Patients, Etc. Shareholder shall not, directly or through
an Affiliate (as defined below), (i) provide medical care or services to (or
assist another person or entity to provide medical care or services to) any
Seller Patient (as hereinafter defined), or (ii) solicit or divert (or assist
another person or entity to solicit or divert) any Seller Patient from
purchasing or using any of the Buyer's and/or Doctor's Care's services, or (iii)
provide anywhere in the Territory (as defined below) medical care or services in
any primary, urgent, general family, or industrial or occupational medical care
facility or practice providing the same or similar services provided or offered
by Buyer and/or Doctor's Care. For purposes of this Section 2(a), the term
"Seller Patient" shall mean any patient of Seller and/or Doctor's Care and shall
include (without limitation) every such person to which Seller has provided
medical services prior to the date hereof and/or provides medical services after
the date hereof directly or indirectly on behalf of Doctor's Care or Buyer. For
purposes hereof, the term "Territory" shall mean everywhere within a fifteen
(15) mile radius of the Building.
b. Ownership. In addition to (but not in limitation of) the
restrictions of Section 2(a), Shareholder shall not, directly or through an
Affiliate (as defined below), own an equity interest (other than as the holder
for investment purposes only of up to 2% of the outstanding capital stock of any
corporation which is publicly traded on a national stock exchange or the NASDAQ
National Market System, so long as Shareholder is not a controlling person of,
or a member of a group that controls, such corporation, and Shareholder is not
otherwise affiliated in any capacity with such corporation) in any entity or
enterprise conducting operations in the Territory which is competitive with the
business activities engaged in by Seller prior to Closing or by the Buyer and/or
Doctor's Care after the Closing.
c. Employees. In addition to (but not in limitation of) the
restrictions of Sections 2(a) and (b), Shareholder shall not, directly or
through an Affiliate (as defined below) solicit or in any manner attempt to
solicit or induce any person employed by, or an agent of, Buyer or Doctor's Care
to terminate such person's association or contract of employment or agency, as
the case may be, with Buyer and/or Doctor's Care.
d. Definition of Affiliate. For purposes of this Agreement, an
"Affiliate" of Shareholder is a Person (as defined below) that directly, or
indirectly through one or more intermediaries, controls, or is controlled by, or
is under common control with Shareholder. For purposes of this
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Agreement, a "Person" includes, in addition to such person, all of the following
persons: (i) any relative or spouse of such person, or any relative of such
spouse, any one of whom has the same home as such person; (ii) any trust or
estate in which such person or any of the persons specified in Section 2(d)(i)
of this Agreement collectively own ten percent (10%) or more of the total
beneficial interest, or of which any of such persons serve as trustee, executor
or in any other capacity; and (iii) any corporation, partnership, limited
liability company or other organization in which such person or any of the
persons specified in Section 2(d)(i) of this Agreement are the beneficial owners
collectively of ten percent (10%) of any class of equity securities, of the
equity interest, or of the partnership interest.
e. Exception. Notwithstanding the foregoing, Shareholder shall
not be deemed to be in violation of any covenant contained herein as a result of
Shareholder's: (i) providing medical services within the emergency room of any
medical facility licensed as a hospital in the State of South Carolina, or (ii)
providing emergency care to any Seller Patient in a potentially life-threatening
situation, or (iii) providing medical services directly or indirectly on behalf
of Doctor's Care, P.A., a South Carolina professional corporation ("Doctor's
Care"), or (iv) providing medical services to any family member by blood or
marriage of Shareholder within the third degree of consanguinity.
3, Consideration. In consideration of the restrictions and covenants
contained herein, Shareholder hereby acknowledges the receipt and adequacy of
ten ($10.00) dollars and such other consideration set forth in the Purchase
Agreement.
4. Remedies.
a. Accounting for Lost Profits. If Shareholder shall violate
any of the provisions of Sections 1 or 2, Buyer shall be entitled to recover any
non-speculative lost profits incurred by Buyer and/or Doctor's Care as a result
of, growing out of, or in connection with, any such violation by Shareholder.
This remedy shall be in addition to, and not in limitation of, any injunctive
relief or other rights, remedies, or damages, to which Buyer and/or Doctor's
Care is or may be entitled as a result of this Agreement.
b. Injunctive Relief. In the event of a breach or threatened
breach by Shareholder of any of the provisions of Sections 1 or 2, Buyer and/or
Doctor's Care, in addition to, and not in limitation of, any other rights,
remedies, or damages available to Buyer and/or Doctor's Care at law or in
equity, shall be entitled to a temporary restraining order, preliminary
injunction, and permanent injunction in order to prevent or restrain any such
breach by Shareholder or by Shareholder's partners, agents, representatives,
servants, employers, employees, companies, consulting clients, and/or any and
all persons directly or indirectly acting for or with Shareholder. Shareholder
agrees that in the event of any breach by Shareholder of the covenants set forth
in this Agreement, Buyer and Doctor's Care shall suffer irreparable harm for
which the remedy of monetary damages may be inadequate.
c. Default. Any breach by Shareholder of this Agreement shall
be deemed a breach by Shareholder of the Purchase Agreement.
e. Alternatives. Buyer and/or Doctor's Care shall have the
option, in its sole discretion, to enforce the various restrictions of Sections
1 and 2 cumulatively, in the alternative, or consecutively.
5. Reasonableness of Restrictions.
a. Acknowledgment. Shareholder has carefully read and
considered the provisions of Sections 1, 2, 3 and 4, and, having done so,
voluntarily agrees that the restrictions set forth in those Sections, including,
but not limited to, the time period of restriction, the geographical areas of
restriction, and the scope of restricted activities set forth in Section 2, are
fair and reasonable and are reasonably required for the protection of the
legitimate interests of the Buyer, and its parent or subsidiary corporations,
partnerships, officers, directors, partners, employees and affiliates, including
but not limited to Doctor's Care.
PAGE 62 of 86
b. Enforcement. In the event that, notwithstanding the
foregoing, any of the provisions of Sections 1, 2, or 4 or any parts thereof
shall be held to be invalid or unenforceable, the remaining provisions or parts
thereof shall nevertheless continue to be valid and enforceable as though the
invalid or unenforceable portions or parts had not been included therein. In the
event that any provisions of Sections 1 or 2 relating to the time period and/or
the areas of restriction and/or the scope of restricted activities and/or
related aspects shall be declared by a court of competent jurisdiction to exceed
the maximum restrictiveness such court deems reasonable and enforceable, the
time period and/or areas of restriction and/or the scope of restricted
activities and/or related aspects deemed reasonable and enforceable by the court
shall become and thereafter be the maximum restriction in such regard, and the
restriction shall remain enforceable to the fullest extent deemed reasonable by
such court.
6. Breach of Lease. In the event any breach of the Lease by UCI of SC
remains uncured at the expiration of the applicable grace period contained
therein, Shareholder may declare this Agreement null and void.
7. Miscellaneous.
a. Burden and Benefit. This Agreement shall be binding upon
Buyer's successors and assigns and Shareholder's heirs, personal and legal
representatives, successors and assigns, and shall inure to the benefit of
Buyer's and Doctor's Care's respective successors and permitted assigns and
Shareholder's heirs, personal legal representatives, successors, and permitted
assigns.
b. Modifications. This Agreement can only be modified by a
written agreement duly signed by Shareholder and an authorized representative of
Buyer. Moreover, in order to avoid uncertainty, ambiguity and misunderstandings
in their relationships, the parties hereto covenant and agree not to enter into
any oral agreement or understanding inconsistent or in conflict with this
Agreement; and the parties hereto further covenant and agree that any oral
communication allegedly or purportedly constituting such an agreement or
understanding shall be absolutely null, void and without effect.
c. Waiver. Any waiver by either party of any breach or any
term or condition hereof shall be effective only if in writing and such writing
shall not be deemed to be a waiver of any subsequent or other breach, term or
condition of this Agreement.
d. Assignments. Neither this Agreement nor any rights
hereunder may be assigned or otherwise transferred by Shareholder.
e. Cumulative Remedies. All rights and remedies of a party
hereunder shall be cumulative and in addition to such rights and remedies as may
be available to a party at law or equity.
f. Venue and Jurisdiction. The parties hereto hereby (i)
agrees that any litigation, action or proceeding arising out of or relating to
this Agreement may be instituted in a state or federal court located in South
Carolina, (ii) waives any objection which it might have now or hereafter to any
such litigation, action, or proceeding based upon improper venue or inconvenient
forum, and (iii) irrevocably submits to the jurisdiction of such courts in any
such litigation, action or proceeding. For all purposes of this Agreement, the
parties hereto further agrees that service of process may be effected pursuant
to United States mail.
g. Entire Agreement. This Agreement constitutes the entire
agreement between the parties with respect to the subject matter hereof and
supersedes all prior contemporaneous written or oral agreements and
representations between the parties with respect thereto.
h. Governing Law. The construction and interpretation of this
Agreement shall at all times and in all respects be governed by the laws of the
State of South Carolina.
PAGE 63 of 86
i. Severability. The invalidity or unenforceability or any
provision of this Agreement shall not render invalid or unenforceable any other
provision hereof.
j. Survival. All terms of this Agreement shall survive the
Closing under the Purchase Agreement.
k. Usage. Capitalized terms used herein which are not
otherwise defined herein shall have the meanings ascribed to them in the
Purchase Agreement. The section and paragraph headings contained in this
Agreement are for reference purposes only and shall not affect in any way the
meaning or interpretation of this Agreement. Terms such as "hereof",
"hereunder", "hereto", "herein", and words of similar import shall refer to this
Agreement in its entirety and all references to "Paragraphs", "Sections", and
similar cross references shall refer to specified portions of this Agreement,
unless the context clearly requires otherwise.
l. Enforcement. In the event litigation or other legal
proceedings are commenced to enforce any rights under this Agreement, all
reasonable legal expenses (including reasonable attorney's fees) and other
direct costs of litigation of the prevailing party shall be paid by the
non-prevailing party. All remedies specified herein are cumulative and
non-exclusive, and parties shall be entitled to seek or enforce any other rights
or remedies available to them at law or in equity.
m. Notices. Any notice, request, approval, consent, demand or
other communication shall be effective upon the first to occur of the following:
(i) upon receipt by the party to whom such notice, request, approval, consent,
demand or other communication is being given; or (ii) three (3) business days
after being duly deposited in the United States certified mail, return receipt
requested, and addressed as follows:
Buyer: UCI Medical Affiliates of South Carolina, Inc.
6168 St. Andrews Road
Columbia, South Carolina 29212
Attn.: Stephen Seeling, Esquire
Shareholder:
The parties hereto may change their respective addresses by notice in writing
given to the other party to this Agreement.
PAGE 64 of 86
IN WITNESS WHEREOF, this Non-Competition Covenant is executed under
seal by Buyer and Shareholder to be effective as of the date first above
written.
WITNESSES: SHAREHOLDER:
(SEAL)
Print Name:
Social Security Number:
BUYER:
UCI MEDICAL AFFILIATES OF SOUTH CAROLINA, INC.
By: (SEAL)
Its:
PAGE 65 of 86
Exhibit I
BILL OF SALE
KNOW ALL MEN BY THESE PRESENTS, that WATEREE EMERGENCY SPECIALISTS,
P.A., a South Carolina professional corporation d/b/a Wateree Medical Center
with offices at 1060 Highway 1 South, Lugoff, South Carolina 29078 (the
"Seller"), for the consideration paid 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") set forth in that certain
Asset Purchase Agreement And Plan of Reorganization dated as of June 11, 1996,
by and between among others Seller, Buyer, UCI Medical Affiliates, Inc., and
Doctor's Care, P.A. (the "Agreement"), the receipt and sufficiency whereof is
hereby acknowledge, has bargained and sold and by these presents does sell,
assign and transfer unto Buyer all of Seller's right, title and interest in and
to, all the accounts receivable, cash, cash accounts, machinery, equipment,
computers, telephone systems, inventory, furniture, furnishings, office
equipment, and other tangible personal property composing portions of the Assets
described in the Agreement, all as provided in the Agreement.
TO HAVE AND TO HOLD the same unto Buyer, its successors and assigns,
forever. AND Seller does for itself and its successors and assigns, covenant and
agree to and with Buyer, its successors and assigns, to warrant and defend the
sale and conveyance of the aforesaid assets hereby sold unto Buyer.
This Bill of Sale is made, executed and delivered pursuant to the
Agreement, and is subject to all of the terms, provisions, and conditions
thereof, including (without limitation) the indemnification therein. To the
extent of any conflict between the terms hereof and thereof, the terms of the
Agreement shall be controlling.
All capitalized terms not otherwise defined herein shall have the
meanings ascribed to them in the Agreement unless the context clearly requires
otherwise.
IN WITNESS WHEREOF, Seller has duly executed this Bill of Sale to be
effective as of the 11th day of June, 1996.
IN THE PRESENCE OF: WATEREE EMERGENCY SPECIALISTS, P.A.
(CORPORATE SEAL)
/s/ Julian Hennig, III By: /s/ E. B. Baxley, M.D.
(Witness) Its: President
/s/ Charles Baxley
(Witness)
PAGE 66 of 86
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 WATEREE
EMERGENCY SPECIALISTS, P.A., by /s/ Elaine B. Baxley, M.D., its President, sign,
seal and, as its act and deed, deliver the within written Bill of Sale for the
uses and purposes therein mentioned and that s/he with the other witness whose
signature appears above, witnessed the execution thereof.
/s/ Charles Baxley
Witness
SWORN to before me this 11th
day of June, 1996.
/s/ Julian Hennig, III (L.S.)
Notary Public for South Carolina
My Commission Expires: 01/10/2000
PAGE 67 of 86
Exhibit J
ASSIGNMENT AND ASSUMPTION AGREEMENT
KNOW ALL MEN, that WATEREE EMERGENCY SPECIALISTS, P.A., a South
Carolina professional corporation d/b/a Wateree Medical Center (the "Assignor"),
for and in consideration of good and valuable consideration to it in hand paid
at or before the ensealing and delivery of these presents, by UCI MEDICAL
AFFILIATES OF SOUTH CAROLINA, INC., a South Carolina corporation ("Assignee"),
the receipt and sufficiency whereof is hereby acknowledged, hereby assigns to
Assignee all of Assignor's right, title and interest in and to the permits,
licenses, computer software, and all other intangible assets and rights
composing portions of the Assets as described in the Asset Purchase Agreement
And Plan of Reorganization dated as of June 11, 1996, by and between among
others Assignor, Assignee, UCI Medical Affiliates, Inc., and Doctor's Care, P.A.
(the "Agreement"), all as provided in the Agreement.
Assignee hereby covenants with Assignor to assume and faithfully
perform and discharge all of the terms, covenants, liabilities and obligations
set forth on Schedule 1 attached hereto (subject to the Agreement) maturing and
to be performed or discharged by Assignor, if any, under the above assigned
contracts beginning on the date hereof and henceforth.
This Assignment is made, executed, and delivered pursuant to the
Agreement, and is subject to all the terms, provisions and conditions thereof,
including (without limitation) the mutual indemnifications therein. To the
extent of any conflict between the terms hereof and thereof, the terms of the
Agreement shall be controlling.
All capitalized terms not otherwise defined herein shall have the
meanings ascribed to them in the Agreement unless the context clearly requires
otherwise.
IN WITNESS WHEREOF, the parties have duly executed this Assignment and
Assumption Agreement to be effective as of the 11th day of June, 1996.
ASSIGNOR:
WATEREE EMERGENCY SPECIALISTS, P.A.
By: /s/ E. B. Baxley, M.D.
Its: President
ASSIGNEE:
UCI MEDICAL AFFILIATES OF SOUTH CAROLINA, INC.
By: /s/ M.F. McFarland, III, M.D.
Its: President
PAGE 68 of 86
SCHEDULE 1
Liabilities To Be Assumed
None other than the expenses related to the telephone listings of Seller.
PAGE 69 of 86
Exhibit K
[Intentionally Blank]
PAGE 70 of 86
Exhibit L
ACCRUED VACATION SCHEDULE
Sonya McNeill 169 hours
Carol Gorman 60 hours
Kathy Branham 30 hours
Wanda Leviner 80 hours
Kathy Pottinelli 56 hours
Rebecca McCaskill 120 hours
PAGE 71 of 86
Exhibit M
STATE OF SOUTH CAROLINA )
) SECURITY AGREEMENT
COUNTY OF KERSHAW )
THIS SECURITY AGREEMENT is made and given as of the 11th day of June,
1996, by UCI MEDICAL AFFILIATES OF SOUTH CAROLINA, INC., a South Carolina
corporation and M.F. McFarland, M.D. (hereinafter called "Owners"), to WATEREE
EMERGENCY SPECIALISTS, P.A., a South Carolina professional association
(hereinafter called the "Secured Party"), pursuant to that certain Asset
Purchase Agreement and Plan of Reorganization dated as of the date hereof, by
and among others UCI MEDICAL AFFILIATES OF SOUTH CAROLINA, INC.; UCI MEDICAL
AFFILIATES, INC.; DOCTOR'S CARE, P.A.; and the Secured Party (the "Agreement").
Pursuant to the Agreement, and for value received, the Owners hereby grant to
Secured Party a security interest, in accordance with the terms and conditions
hereinafter set forth, in the following described property (hereinafter called
"Collateral"):
(1) The Assets set forth in Section 1 of the Agreement,
more fully defined in Schedule 1 attached hereto; and
(2) The medical records set forth in Section 2 of the
Agreement, more fully described in Schedule 2
attached hereto
to secure the payment of the indebtedness evidenced by that certain secured
Promissory Note (the "Note") in the original principal amount of Sixty Thousand
No/100 ($60,000.00) Dollars executed by UCI Medical Affiliates of South
Carolina, Inc. simultaneously herewith and payable to the Secured Party, and any
extensions or renewals thereof.
OWNERS REPRESENT, WARRANT AND AGREE THAT:
1. The Collateral is used by Owners for a medical facility.
2. The Owners shall do all acts that may be necessary to
maintain, preserve and protect the Collateral.
3. Owners will maintain the Collateral in the condition received from
Secured Party, will not waste or destroy the Collateral or any part thereof,
will not use the Collateral in violation of any applicable law or policy of
insurance and will promptly pay when due all taxes and assessments upon the
Collateral or its operation or use.
4. Owners will keep the Collateral insured until this Security
Agreement is terminated with hazard coverage against all reasonable expected
risk to which it is exposed including fire, theft, accident and physical damage
in such amounts and with an insurance company as shall be reasonably acceptable
to Secured Party. Secured Party shall be provided with continuing evidence of
such insurance.
Notwithstanding anything contained herein to the contrary, nothing
contained herein shall be interpreted in any way to hinder, restrict or in any
way preclude the Owners' relocating, leasing, selling or renting, in whole or in
part, the Collateral in the regular course of Owners' business. Furthermore such
relocation, sale, lease, or rental shall not be deemed, in any way, to
constitute a Default hereunder.
PAGE 72 of 86
THE PARTIES FURTHER AGREE THAT:
1. At its option, and without any obligation to do so, Secured Party
may discharge taxes, liens, or other encumbrances at any time levied or place on
the Collateral, pay for insurance on the Collateral, and pay for the maintenance
and preservation of the Collateral should Owners fail to do so. Owners agree to
reimburse Secured Party on demand for any payments so made and until such
reimbursement the amount so paid by Secured Party shall be added to the
principal amount of the indebtedness secured by this Security Agreement.
2. At the request of Secured Party, Owners will join with Secured Party
in executing one or more financing statements or other documents in form
satisfactory to Secured Party in order to perfect and protect any security
interest granted hereby for filing the same in all public offices wherever
filing or recording is deemed by Secured Party to be necessary or desirable.
EVENT OF DEFAULT: Owners shall be in default under this Security
Agreement upon breach by Owners of any obligation imposed by this Security
Agreement or the Note and the failure of the Owners to correct such breach
within thirty (30) days of receipt of written notice of the breach from the
Secured Party.
REMEDIES OF SECURED PARTY UPON DEFAULT:
Upon default, Secured Party shall have all of the rights and remedies
of a Secured Party under the Uniform Commercial Code in force in this state at
the date hereof and, in addition, the following rights and remedies:
1. Secured Party may peaceably, by its own means or with judicial
assistance, enter Owners' premises and take possession of the Collateral, or
render it unusable, or dispose of the Collateral on Owners' premises, and Owners
will not resist or interfere with such action.
2. Secured Party may require Owners to assemble all or any part of the
Collateral and make it available to Secured Party at any place reasonably
convenient and designated in a notice sent to Owners.
ADDITIONAL PROVISIONS
1. No failure on the part of Secured Party to exercise and no delay in
exercising any right or remedy hereunder shall operate as a waiver hereof nor
shall any single or partial exercise by Secured Party of any right or remedy
hereunder preclude any other or future exercise hereof or the exercise of any
other right or remedy.
2. All rights of Secured Party hereunder shall inure to the benefit of
its successors and assigns and all obligations of Owners shall bind their
successors, executors or administrators, or his or its successors or assigns.
3. Any notice required to be given may be given by mailing
such notice, postage prepaid, to the following addresses:
OWNERS 6168 St. Andrews Road
Columbia, SC 29212
Attn: Stephen S. Seeling, Esquire
SECURED PARTY WATEREE EMERGENCY SPECIALISTS, P.A.
206 Firetower Road
Camden, SC 29020
PAGE 73 of 86
4. This Security Agreement may not be changed orally but only by an
agreement in writing and signed by the party against whom enforcement of any
waiver, change, modification, or discharge is sought.
5. This Security Agreement and the rights and obligations to the
parties hereunder shall be construed and interpreted in accordance with the laws
of the State of South Carolina in force at the date of this Agreement. In the
event of any inconsistency between the terms hereof and the terms of the
Agreement, the terms of the Agreement shall be controlling.
[SIGNATURE PAGE ATTACHED]
PAGE 74 of 86
IN WITNESS THEREOF, the parties hereto have caused these presents to be
executed effective as of the day and year first above written.
WITNESSES: OWNERS:
UCI MEDICAL AFFILIATES OF
SOUTH CAROLINA, INC., a South
Carolina corporation
/s/ Julian Hennig, III By: /s/ M.F. McFarland, III, M.D.
Its: President
/s/ Charles Baxley
/s/ Julian Hennig, III /s/ M.F. McFarland, III, M.D.
M.F. McFarland, III, M.D.
/s/ Charles Baxley
SECURED PARTY:
/s/ Julian Hennig, III WATEREE EMERGENCY SPECIALISTS, P.A.,
a South Carolina professional corporation
/s/ Charles Baxley By: /s/ E. B. Baxley, M.D.
Its: President
PAGE 75 of 86
SCHEDULE 1
LIST OF ASSETS
TRAUMA
1/2 bag 4x4 Ns 1 reflex hammer
1 rectal thermometer 1 nail drill
1 bag 1 thigh cuff
1 doppler 1 infant cuff
1 bid gown 1 infant scale
2 curtains 1 apron
2 box electrodes 1 goggles
4 plastic airways 1 doppler kit
5 blankets tube gauze dressing cage dispenser
2 towels instruments- multiple pieces
3 washcloths 1 wire cutter
1 gown 4 scissors
3 sheets
3 pillowcases
2 pillows
1 rolling B/P cuff
2 rolling stools
1 rolling table
2 stretchers
1 scales
1 EKG machine
1 portable IV pole
1 papertowel dispenser
1 soap dispenser
1 magazine rack
1 defribillater
1 wall mount sharps
1 wheelchair
3 trash cans
3 shelves
1 hyfrecator
1 breath alcoholmachine
1 aerosol machine
1 laundry basket
1 x-ray view box
3 doctor tool suture trays
2 towels
2 small basins
4 suture trays
2 battery operated cautery
3 glass jars
1 ring cutter
1 bolt cutter
PAGE 76 of 86
LAB
1 trash can
1 bulletin board
9 file racks
1 paper towel dispenser
1 soap dispenser
lab log book
2 file trays
1 auto crave
1 spore incubator
1 stapler
1 tape dispenser
1 intercom
1 Kodak EK + achem kit
2 Finnip
1 tray (blood)
2 pairs glasses (blood)
45 drapes
1 refrigerator
LAUNDRY CLOSET
1 washer/dryer stack unit
2 brooms
1 dust mop
1 bucket
1 sponge
3 scrub tops
3 scrub bottoms
1 lab coat
1 Bld. draining coat
4 bath towels
2 blankets
TESTING ROOM
1 trash can
1 chair
1 rolling stool
1 PFT machine
1 titmus machine
1 audiogram machine
1 foot stool
1 basket
1 radio
1 intercom
1 chart rack
1 towel dispenser
1 tape dispenser
PAGE 77 of 86
X-RAY
1 x-ray machine
1 rack (file)
1 small metal rack
1 magazine rack
1 chair
1 set calibers
8 cassettes (sizes)
2 trash cans
1 foot stool
1 full apron
1/2 apron
1 wall desk
1 thyroid collar
1 darkroom lights
1 fife (metal) holder
trash can
1 view box
automatic developing machine
PRIVATE BATHROOM
1 towel dispenser
1 soap dispenser
1 trash can
1 wicker rack (wall)
4 pictures
1 wicker stand
HALLWAY #1
1 wall desk
6 pt chart racks
1 intercom
HALLWAY #2
1 large corkboard
1 pull down wall desk
1 trash can
1 hall beeper
1 time clock
1 card rack
1 bulletin board
7 pk chart holders
1 EXIT sign
1 eye wall chart
PAGE 78 of 86
ROOM #1
1 washcloth
2 pillowcases
12 sheets
4 gowns
1 PDR
1 box Kleenex
1 rolling stool
1 chair
1 B/P cuff (wall) SMTHG
1 exam table
1 wall otolopthoscope
1 ear spec dispenser
1 towel dispenser
1 glass container Q-tips
1 glass container blades
1 child chair
1 foot stool
1 magazine rack
1 picture
1 exam table
ROOM #2
1 chair
1 child chair
1 blanket
6 sheets
2 pillowcases
4 gowns
1 pillow
1 B/P wail mount
1 ear spec dispenser
1 otolopthoscope
1 stool
1 trash can
1 picture
1 glass dispenser Q-tips
1 plastic dispenser blades
1 soap dish
1 set bookends
PDR
1 glass container
1 exam table
1 magazine rack
PAGE 79 of 86
ROOM #3
1 PDR
1 set bookends
1 glass cotton dispenser
1 otolopthoscope
1 3/P cuff
1 ear spec dispenser
1 pillow
1 rolling stool
1 chair
1 trash can
1 picture
1 alcohol dispenser
1 soap dispenser
1 towel dispenser
1 magazine rack
1 exam table
5 sheets
6 gowns
2 pillow cases
1 towel
ROOM #4
1 B/P cuff (wall mount)
1 wall mount otoscop/opthm.
1 trash can
1 OB/GYN exam tables
1 magazine rack
1 exam light
1 ring forceps
3 med specs
2 gowns
4 washcloths
5 gowns
4 pillow cases
2 sheets
1 chair
1 rolling stool
1 towel dispenser
1 furnace
1 PDR
1 washcloth
1 glass dispenser Q-tips
1 soap dispenser
1 ear spec dispenser
2 glass containers cottonballs
1 picture
PAGE 80 of 86
ROOM #5
1 B/P cuff (wall)
3 boxes gloves
3 plastic containers
1 soap dispenser
1 PDR
1 chair
1 OB/GYN exam table
1 washcloth
1 box sterile 2x2's
1 box sterile 4x4's
1 box sterile 4x4's
1 trash can
1 rolling stool
1 wall mount oto/en light
1 pair ring forceps
1 small specs
6 med specs
9 sheets
1 light (exam)
3 pillow cases
8 gowns
1 ear spec dispenser
ROOM #6
1 stool
1 chair pt)
1 ENT chair
1 slit lamp
1 B/P cuff
1 oto/opth scope
1 paper towel dispenser
1 rolling stool
1 eye lamp
1 tongue depressor holder
1 magazine holder
1 PDR
1 box Kleenex
1 ear specula holder
1 ear spoon
2 plastic ear basins
PAGE 81 of 86
ROOM #7
1 towel dispenser
1 soap dispenser
1 glass dispenser Q-tips
1 tongue blade dispenser w/blades
1 ear spec dispenser
1 spray bottle
1 basin
1 stretcher
1 portable IV pole
2 pairs scissors
1 otolopth. scope (wall mount)
1 wall S/P cuff (1 med./1 large)
4 pillow cases
1 hand towel
1 washcloth
1 gown
2 sheets
1 pillow
2 bath towels
chair
rolling tables
waste can
1 rolling stool
1 plastic carry tray/lab supplies
BATHROOM
2 soap dispensers
1 towel dispenser
PAGE 82 of 86
FILE ROOM
1 charge card imprinters (/1 Wateree Medical)
1 charge card scanners (/1 Wateree Medical)
1 Fax machine with telephone
1 answering machine
1 postage meter
1 postage scale
1 telephone
1 hole punch
1 paper clip holder
2 black smoke wall bins
1 3-shelf black wrought iron stand
1 white metal 6-shelf stand
1 white adjustable desk
2 beige 4-drawer filing cabinet
1 grey 4-drawer filing cabinet
1 beige magazine holder
1 black rolodex
1 brown 5-shelf organizer (metal)
1 brown wooden
3-shelf organizer
8 grey wall filing organizers
1 pencil holder
1 smoky black letter tray
1 lab corp. printer with stand
1 staple remover
1 stool
1 paper cutter 2 waste baskets
WAITING ROOM
3 large brass planters.artificial trees
1 brass plant stand/ivy
10 orange leather chairs
8 green leather chairs
1 brown coffee table
2 3-seat cloth chairs/table attached
1 2-seat cloth chair
1 2-seat cloth chair/table attached
1 3-shelf book rack
PAGE 83 of 86
FRONT
1 copy machine (Gestetner 2216Z) 2 telephones
3 waste cans 1 8 1/2x11 paper cassette
1 tape dispenser
2 hole punches
2 stamp pads
6 wall hot files (smoky grey)
1 black computer table
1 local area picture
1 wall clock
6 letter trays
2 index boxes
1 magazine holder
1 Texas Instrument calculator (T1 5029)
3 message trays
2 monitors (1 Samtronics/1 Addonics)
2 key boards (1 Mitsumi/1 Slayton)
2 printers (1 GSX-190 Citizen/1 Epson FX-850)
1 Smith Corona XD 5500 Spell Right Typewriter
1 ledger card tray
1 stamper carousel
9 stampers
4 white plastic clipboard
6 brown clipboards
1 nose cup
1 beige magazine rack
1 fileserver - 1 CPU w/o harddrive
1 battery backup
1 black pad divider
1 drawer divider
1 box paper clips
1 microphone
1 candy jar
2 printer stands
1 CD deck with remote
1 receiver
2 chairs
1 Canon palm printer MP 1D
1 phone
1 paper clip letter holder
1 box 3-way files
1 boxes single files (50)
4 boxes file folders (50)
2 AC adapter/Canon
1 shredder
1 2-door metal cabinet
2 staplers
PAGE 84 of 86
BREAK ROOM
1 2-cushion sofa
1 table
6 side chairs
1 refrigerator
1 microwave oven
1 1-duplex coffee maker
1 13" Sharpe TV-VCR combination with stand
PHARMACY
1 refrigerator
1 countertop file
SUPPLY ROOM
2 laminated storage cabinets with doors
3 metal storage cabinets, open
1 cart
DOCTORS' DOWNSTAIRS OFFICE
2 work stations
2 office chairs
1 x-ray view box
1 file cabinet
DOCTORS' UPSTAIRS OFFICE
1 desk
1 bookcase (all books in bookcase personal property of Baxley, Kahler, Hargrave)
1 desk chair
2 upholstered side chairs
UPSTAIRS HALL
1 round laminate topped table
OFFICE MANAGER'S OFFICE
office systems work station w/2 filing cabinets, keyboard tray & desk chair
2 upholstered sid chairs
1 typing table
1 486 DX 66 CPU
1 monitor
1 keyboard
1 wide carriage dot-matrix printer w/stand, Epson LQ 1170
1 dot-matrix printer w/stand, Panasonic KX P1180
STORAGE ROOM ADJACENT TO OFFICE MANAGER
1 desk w/chair
3 metal 4-drawer filing cabinets
PAGE 85 of 86
SCHEDULE 2
LIST OF PATIENT RECORDS
The patient records related to the patients of Secured Party set forth
on the patient list dated 6/10/96 delivered by Secured Party to Debtor on June
11, 1996 in connection with the sale of substantially all the assets of Secured
Party to Debtor, and entitled "Wateree Medical Center List of Accounts."
PAGE 86 of 86