<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON OCTOBER 17, 1997
REGISTRATION NO. 333-34265
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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AMENDMENT NO. 3
TO
FORM S-1
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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AMERIPATH, INC.
(Exact name of registrant as specified in its charter)
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<S> <C> <C>
DELAWARE 8099 65-0642485
(State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer
incorporation or organization) Classification Code Number) Identification No.)
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7289 GARDEN ROAD, SUITE 200
RIVIERA BEACH, FLORIDA 33404
(561) 845-1850
(Address, including zip code, and telephone number, including area code, of
registrant's principal executive office)
---------------------
JAMES C. NEW
PRESIDENT AND CHIEF EXECUTIVE OFFICER
AMERIPATH, INC.
7289 GARDEN ROAD, SUITE 200
RIVIERA BEACH, FLORIDA 33404
(561) 845-1850
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
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COPIES OF COMMUNICATIONS TO:
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DANIEL H. ARONSON, ESQ. J. VAUGHAN CURTIS, ESQ.
GREENBERG TRAURIG HOFFMAN ALSTON & BIRD LLP
LIPOFF ROSEN & QUENTEL, P.A. ONE ATLANTIC CENTER
515 E. LAS OLAS BOULEVARD, SUITE 1500 1201 WEST PEACHTREE STREET
FORT LAUDERDALE, FLORIDA 33301 ATLANTA, GA 30309
(954) 765-0500 (404) 881-7000
</TABLE>
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As soon as
practicable after the effective date of this Registration Statement.
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, check the following box. [ ]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration number of the earlier effective
registration statement for the same offering. [ ] ______
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ] ______
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
---------------------
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE SECURITIES AND EXCHANGE COMMISSION, ACTING
PURSUANT TO SAID SECTION 8(A), MAY DETERMINE.
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<PAGE> 2
ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES.
(a) Exhibits:
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EXHIBIT
NUMBER DESCRIPTION OF EXHIBIT
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1.1 -- Form of Underwriting Agreement*
3.1 -- AmeriPath's Amended and Restated Certificate of
Incorporation
3.2 -- AmeriPath's Amended and Restated Bylaws
3.3 -- AmeriPath's Certificate of Amendment to the Amended and
Restated Certificate of Incorporation
5.1 -- Opinion of Greenberg, Traurig, Hoffman, Lipoff, Rosen &
Quentel, P.A. as to the validity of the Common Stock being
registered*
10.1 -- Amended and Restated 1996 Stock Option Plan
10.2 -- Employment Agreement, dated as of October 24, 1995, between
AmeriPath and James C. New
10.3 -- Employment Agreement, dated as of August 2, 1993, as
amended, between ALA and Robert P. Wynn
10.4 -- Employment Agreement, dated as of January 1, 1994, between
AmeriPath and Michael J. Demaray, M.D.
10.5 -- Employment Agreement, dated June 30, 1996, between AmeriPath
and Alan Levin, M.D.
10.6 -- Employment Agreement, dated as of September 30, 1996,
between AmeriPath Florida and Alan Levin, M.D., as amended
10.7 -- Employment Agreement, dated as of June 30, 1996, between
AmeriPath Florida and Timothy Kilpatrick, M.D.
10.8 -- Employment Agreement, dated as of June 30, 1996, between
AmeriPath Florida and Les Rosen, M.D.
10.9 -- Credit Agreement originally dated as of May 29, 1996 and
amended and restated as of June 27, 1997, among AmeriPath,
Inc., the subsidiaries of AmeriPath, Inc. from time to time
party thereto, the lenders from time to time party thereto
and Bank of Boston, N.A.
10.11 -- Lease dated as of April 8, 1988 by and between MLS
Properties, Inc. and E.G. Poulos, M.D., M.J. Demaray, M.D. &
A.P. Kowalczyk, M.D., P.A., doing business as American
Laboratory Associates
10.12 -- Stock Purchase Agreement, dated as of May 23, 1996, among
AmeriPath, Inc., Derrick & Associates and the shareholders
of Derrick & Associates
10.13 -- Stock Purchase Agreement, dated as of September 30, 1996, by
and among AmeriPath, Inc., David R. Barron, M.D., Inc., Ruth
S. Kleier, M.D. and David R. Barron, M.D.
10.14 -- Stock Purchase Agreement, dated as of October 31, 1996 among
AmeriPath, Inc., Gulf Coast Pathology Associates, Inc.,
Richard Fernandez, M.D., and George Kalemeris, M.D.
10.15 -- Form of Stock Rights Surrender & Restricted Stock Grant
Agreement
10.16 -- 1996 Director Stock Option Plan
10.17 -- American Laboratory Associates, Inc. Series A Preferred
Stock, Common Stock and Junior Subordinated Note Purchase
Agreement, dated as of January 1, 1994
10.18 -- Letter Agreement, dated September 18, 1996, between
Acquisition Management Services, Inc. and AmeriPath, Inc.
10.19 -- AmeriPath Management Agreement by and between AmeriPath
Cincinnati, Inc. and AmeriPath Ohio, Inc., dated September
30, 1996
10.20 -- Management Agreement by and between Beno Michel, M.D., Inc.
and AmeriPath, Inc., dated October 15, 1996
10.21 -- Management Agreement by and between Clay J. Cockerell, M.D.,
P.A. and AmeriPath Texas, Inc., dated September 30, 1996, as
amended January 16, 1997
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II-3
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EXHIBIT
NUMBER DESCRIPTION OF EXHIBIT
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10.22 -- Agreement for Professional Pathology Services between
SmithKline Beecham Clinical Laboratories, Inc. and Derrick
and Associates Pathology, P.A., dated April 1, 1992
10.23 -- Agreement for Medical Directorship between SmithKline
Beecham Clinical Laboratories, Inc. and Derrick and
Associates Pathology, P.A., dated April 1, 1992
10.24 -- Agreement for Professional Pathology Services between
SmithKline Beecham Clinical Laboratories, Inc. and AmeriPath
Florida, Inc., dated November 1, 1996
10.25 -- Share Exchange Agreement, dated as of February 15, 1996, by
and among American Laboratory Associates, Inc., AmeriPath,
Inc. and the holders of common and convertible preferred
stock of American Laboratory Associates, Inc.
10.26 -- Trust Agreement, dated as of October 15, 1996, between
AmeriPath, Inc. and Beno Michel, as trustee
10.27 -- Trust Agreement, dated as of September 30, 1996, between
AmeriPath, Inc. and David R. Barron, M.D. as trustee
10.28 -- Form of Nonqualified Stock Option Agreement
10.29 -- Stock Purchase Agreement, dated as of October 15, 1996, by
and among AmeriPath, Inc., Beno Michel, M.D., Inc. and Beno
Michel, M.D.
10.30 -- Stock Purchase Agreement, dated as of October 10, 1996, by
and among AmeriPath, Inc., Drs. Seidenstein, Levine and
Associates, Inc., Seidenstein, Levine Real Estate
Partnership, Lawrence Seidenstein, M.D., Steven E. Levine,
M.D. and David M. Reardon, M.D.
10.31 -- Stock Issuance Agreement, dated as of June 26, 1996, among
AmeriPath, Inc., The First National Bank of Boston, FSC
Corp., NationsBank, N.A. (South) and Atlantic Equity
Corporation
10.32 -- Stock Issuance Agreement, dated as of August 29, 1996, among
AmeriPath, Inc., The First National Bank of Boston, FSC
Corp., NationsBank, N.A. (South) and Atlantic Equity
Corporation
10.33 -- Stock Issuance Agreement, dated as of November 4, 1996,
among AmeriPath, Inc., The First National Bank of Boston and
FSC Corp.
10.34 -- Stock Purchase Agreement, dated August 21, 1997, by and
among AmeriPath, Inc., J. Sloan Leonard, M.D., Joseph A.
Sonnier, M.D., Van Q. Telford, M.D., William C. Burton,
M.D., James Scot Milvenan, M.D., Leslie L. Walters, M.D.,
Thomas M. James, M.D., Stephen W. Aldred, M.D., John E.
McDonald, M.D. and Barbara A. Shinn, M.D.
10.35 -- Stock Purchase Agreement, dated August 15, 1997, by and
among AmeriPath, Inc., Colab Incorporated Professional
Corporation, Anatomical Pathology Services, P.C.,
Microdiagnostics, P.C. and the sellers set forth therein
10.36 -- Lease effective June 1, 1995 by and between Dallas Pathology
Leasing and Unipath, Ltd.
10.37 -- Trust Agreement, dated August 29, 1997, between AmeriPath,
Inc. and Jeffery A. Mossler, M.D.
10.38 -- Management Agreement, by and between Colab, Inc. and
AmeriPath Indianapolis, L.L.C., effective September 1, 1997
10.39 -- Management Agreement by and between AmeriPath Texas, Inc.
and DFW 5.01, effective September 1, 1997
21.1 -- Subsidiaries of AmeriPath*
23.1 -- Consent of Greenberg, Traurig, Hoffman, Lipoff, Rosen &
Quentel, P.A. (to be included in its opinion to be filed as
Exhibit 5.1)*
23.2 -- Consent and Report on Schedules of Deloitte & Touche LLP
23.3 -- Consent of Deloitte & Touche LLP (Fort Lauderdale, Florida)
23.4 -- Consent of Deloitte & Touche LLP (Orlando, Florida)
23.5 -- Consent of Deloitte & Touche LLP (Cincinnati, Ohio)
23.6 -- Consent of Deloitte & Touche LLP (Dallas, Texas)
23.7 -- Consent of Deloitte & Touche LLP (Indianapolis, Indiana)
23.8 -- Consent of Jenkens & Gilchrist a professional corporation
23.9 -- Consent of Bricker & Eckler LLP
23.10 -- Consent of Wyatt, Tarrant & Combs
</TABLE>
II-4
<PAGE> 4
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EXHIBIT
NUMBER DESCRIPTION OF EXHIBIT
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23.11 -- Consent of Baker & Daniels
24.1 -- Reference is made to the Signatures section of this
Registration Statement for the Power of Attorney contained
therein
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* Filed herewith.
(b) Financial Statement Schedules:
The following supplemental schedules can be found on the indicated
pages of this Registration Statement.
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ITEM PAGE
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Schedule II -- Valuation and Qualifying Accounts............ S-1
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All other schedules for which provision is made in the applicable
accounting regulations of the Commission are not required under the related
instructions or are not applicable, and therefore have been omitted.
ITEM 17. UNDERTAKINGS
(a) The undersigned registrant hereby undertakes to provide to the
underwriters at the closing specified in the underwriting agreement certificates
in such denominations and registered in such names as required by the
underwriters to permit prompt delivery to each purchaser.
(b) Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of the
registrant pursuant to the foregoing provisions, or otherwise, the registrant
has been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the Securities Act
and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the registrant of expenses
incurred or paid by a director, officer or controlling person of the registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
(c) The undersigned registrant hereby undertakes that:
(1) For purposes of determining any liability under the Securities
Act, the information omitted from the form of prospectus filed as part of a
registration statement in reliance upon Rule 430A and contained in a form
of prospectus filed by the registrant pursuant to Rule 424(b)(1) or (4) or
497(h) under the Securities Act shall be deemed to be part of the
registration statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the Securities
Act, each post-effective amendment that contains a form of prospectus shall
be deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
II-5
<PAGE> 5
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
has duly caused this registration statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Riviera Beach, State of
Florida, on October 17, 1997.
AMERIPATH, INC.
By: /s/ JAMES C. NEW
------------------------------------
James C. New
President and Chief Executive
Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below hereby constitutes and appoints James C. New and Robert P. Wynn his true
and lawful attorneys-in-fact, each acting alone, with full powers of
substitution and resubstitution, for him and in his name, place and stead, in
any and all capacities, to sign any or all amendments, including any
post-effective amendments, to this registration statement, and any additional
registration statements filed pursuant to Rule 462 under the Securities Act of
1933 relating hereto, and to file the same, with exhibits thereto, and other
documents in connection therewith, with the Securities and Exchange Commission,
hereby ratifying and confirming all that said attorneys-in-fact or their
substitutes, each acting alone, may lawfully do or cause to be done by virtue
hereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities and on the date indicated.
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SIGNATURE TITLE DATE
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/s/ JAMES C. NEW President, Chief Executive October 17, 1997
- - ----------------------------------------------------- Officer and Director
James C. New (principal executive
officer)
* Chief Operating Officer and October 17, 1997
- - ----------------------------------------------------- Director
Alan Levin, M.D.
/s/ ROBERT P. WYNN Executive Vice President and October 17, 1997
- - ----------------------------------------------------- Chief Financial Officer
Robert P. Wynn (principal financial
officer and principal
accounting officer)
* Chairman of the Board and October 17, 1997
- - ----------------------------------------------------- Director
Thomas S. Roberts
* Director October 17, 1997
- - -----------------------------------------------------
Timothy Kilpatrick, M.D.
* Director October 17, 1997
- - -----------------------------------------------------
C. Arnold Renschler, M.D.
Director
- - -----------------------------------------------------
E. Roe Stamps, IV
</TABLE>
*By: /s/ JAMES C. NEW
---------------------------------
James C. New
Attorney-in-fact
II-6
<PAGE> 1
EXHIBIT 1.1
ALSTON & BIRD DRAFT 10/16/97
5,000,000 Shares
AMERIPATH, INC.
Common Stock
UNDERWRITING AGREEMENT
October ___, 1997
DONALDSON, LUFKIN & JENRETTE
SECURITIES CORPORATION
MORGAN STANLEY & CO. INCORPORATED
SMITH BARNEY INC.
PIPER JAFFRAY INC.
As representatives of the several Underwriters
named in Schedule I hereto
c/o Donaldson, Lufkin & Jenrette Securities Corporation
277 Park Avenue
New York, New York 10172
Dear Sirs:
AmeriPath, Inc., a Delaware corporation (the Company"), proposes to
issue and sell to the several underwriters named in Schedule I hereto (the
Underwriters") an aggregate of 5,000,000 shares of the Common Stock, $.01 par
value per share, of the Company (the Firm Shares"). The Company also proposes
to issue and sell to the several Underwriters, and certain stockholders of the
Company named in Schedule II hereto (collectively, the "Selling Stockholders")
severally propose to sell to the several Underwriters, not more than an
aggregate of 750,000 additional shares of the Common Stock, $.01 par value per
share, of the Company (the "Additional Shares") if requested by the
Underwriters as provided in Section 2 hereof, each Selling Stockholder to sell
not more than the amount set forth opposite such Selling Stockholder's name in
Schedule II hereto. The Firm Shares and the Additional Shares are hereinafter
referred to collectively as the Shares". The shares of common stock of the
Company to be outstanding after giving effect to the sales contemplated hereby
are hereinafter referred to as the Common Stock". The Company and the Selling
Stockholders are hereinafter sometimes referred to collectively as the
Sellers."
<PAGE> 2
SECTION 1. Registration Statement and Prospectus. The Company has
prepared and filed with the Securities and Exchange Commission (the
Commission") in accordance with the provisions of the Securities Act of 1933,
as amended, and the rules and regulations of the Commission thereunder
(collectively, the Act"), a registration statement on Form S-1, including a
prospectus, relating to the Shares. The registration statement, as amended at
the time it became effective, including the information (if any) deemed to be
part of the registration statement at the time of effectiveness pursuant to
Rule 430A under the Act, is hereinafter referred to as the Registration
Statement"; and the prospectus in the form first used to confirm sales of
Shares is hereinafter referred to as the Prospectus". If the Company has
filed or is required pursuant to the terms hereof to file a registration
statement pursuant to Rule 462(b) under the Act registering additional shares
of Common Stock (a Rule 462(b) Registration Statement"), then, unless
otherwise specified, any reference herein to the term Registration Statement"
shall be deemed to include such Rule 462(b) Registration Statement.
SECTION 2. Agreements to Sell and Purchase and Lock-Up Agreements.
On the basis of the representations and warranties contained in this Agreement,
and subject to its terms and conditions, (i) the Company agrees to issue and
sell 5,000,000 Firm Shares to the Underwriters and (ii) each Underwriter
agrees, severally and not jointly, to purchase from the Company at a price per
Share of $______ (the Purchase Price") the number of Firm Shares set forth
opposite the name of such Underwriter in Schedule I hereto.
On the basis of the representations and warranties contained in this
Agreement, and subject to its terms and conditions, (i) the Company agrees to
issue and sell up to 210,230 Additional Shares to the Underwriters, (ii) the
Selling Stockholders agree to sell, severally and not jointly, up to 539,770
Additional Shares to the Underwriters and (iii) the Underwriters shall have the
right to purchase, severally and not jointly, up to 210,230 Additional Shares
from the Company at the Purchase Price and up to the number of Additional
Shares set forth opposite each Selling Stockholder's name in Schedule II hereto
from such Selling Stockholder at the Purchase Price. Additional Shares may be
purchased solely for the purpose of covering over-allotments made in connection
with the offering of the Firm Shares. The Underwriters may exercise their
right to purchase Additional Shares in whole or in part from time to time by
giving written notice thereof to the Company within 30 days after the date of
this Agreement. You shall give any such notice on behalf of the Underwriters
and such notice shall specify the aggregate number of Additional Shares to be
purchased pursuant to such exercise and the date for payment and delivery
thereof, which date shall be a business day (i) no earlier than two business
days after such notice has been given (and, in any event, no earlier than the
Closing Date (as hereinafter defined)) and (ii) no later than ten business days
after such notice has been given. If any Additional Shares are to be
purchased, each Underwriter, severally and not jointly, agrees to purchase from
the Company the number of Additional Shares (subject to such adjustments to
eliminate fractional shares as you may determine) which bears the same
proportion to the total number of Additional Shares to be purchased as the
number of Firm Shares set forth opposite the name of such Underwriter in
Schedule I bears to the total number of Firm Shares. In the event the
Underwriters elect to exercise their option to purchase the Additional Shares
in part, the Company and the Selling Stockholders shall sell to the
Underwriters, and the Underwriters shall purchase (i) first, the Additional
Shares to be sold by the Selling Stockholders until all such Additional Shares
have been sold, and (ii) second, the Additional Shares to be issued and sold by
the Company until all such Additional Shares have been sold. In the event the
Underwriters elect to exercise their option to purchase Additional Shares such
that the Underwriters will purchase a portion but not all of the Additional
Shares to be sold by the Selling Stockholders, the Underwriters shall purchase
from each Selling Stockholder, and each Selling Stockholder shall
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sell to the Underwriters, that number of Additional Shares equal to the total
number of Additional Shares to be purchased multiplied by a fraction, the
numerator of which is the number of Additional Shares set forth opposite the
name of such Selling Stockholder in Schedule II hereto and the denominator of
which is the aggregate number of Additional Shares offered by all of the
Selling Stockholders as set forth in Schedule II hereto.
Each Seller hereby agrees not to (i) offer, pledge, sell, contract to
sell, sell any option or contract to purchase, purchase any option or contract
to sell, grant any option, right or warrant to purchase, or otherwise transfer
or dispose of, directly or indirectly, any shares of Company common stock or
any securities convertible into or exercisable or exchangeable for Company
common stock or (ii) enter into any swap or other arrangement that transfers
all or a portion of the economic consequences associated with the ownership of
any Company common stock (regardless of whether any of the transactions
described in clause (i) or (ii) is to be settled by the delivery of Company
common stock, or such other securities, in cash or otherwise), except to the
Underwriters pursuant to this Agreement, for a period of 180 days after the
date of the Prospectus without the prior written consent of Donaldson, Lufkin &
Jenrette Securities Corporation. Notwithstanding the foregoing, during such
period (i) the Company may grant stock options pursuant to the Company's
existing stock option plans, (ii) the Company may issue shares of its common
stock upon the exercise of an option or warrant outstanding on the date hereof
or the conversion of a security outstanding on the date hereof and (iii) the
Company may issue shares of its common stock pursuant to acquisitions of
anatomic pathology practices that have been approved by the Board of Directors
of the Company or by an authorized committee thereof. The Company also agrees
not to file any registration statement (other than one or more registration
statements on form S-8 relating to the Company's presently existing stock
option plans) with respect to any shares of its common stock or any securities
convertible into or exercisable or exchangeable for Company common stock for a
period of 180 days after the date of the Prospectus without the prior written
consent of Donaldson, Lufkin & Jenrette Securities Corporation. In addition,
each Selling Stockholder agrees that, for a period of 180 days after the date
of the Prospectus without the prior written consent of Donaldson, Lufkin &
Jenrette Securities Corporation, it will not make any demand for, or exercise
any right with respect to, the registration of any shares of Company common
stock or any securities convertible into or exercisable or exchangeable for
Company common stock. The Company shall, prior to or concurrently with the
execution of this Agreement, deliver an agreement executed by (i) each Selling
Stockholder, (ii) each of the directors and officers of the Company who is not
a Selling Stockholder and (iii) each stockholder listed on Annex I hereto to
the effect that such person will not, during the period commencing on the date
such person signs such
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<PAGE> 4
agreement and ending 180 days after the date of the Prospectus, without the
prior written consent of Donaldson, Lufkin & Jenrette Corporation, (A) engage
in any of the transactions described in the first sentence of this paragraph or
(B) make any demand for, or exercise any right with respect to, the
registration of any shares of Company common stock or any securities
convertible into or exercisable or exchangeable for Company common stock.
SECTION 3. Terms of Public Offering. The Sellers are advised by you
that the Underwriters propose (i) to make a public offering of their respective
portions of the Shares as soon after the execution and delivery of this
Agreement as in your judgment is advisable and (ii) initially to offer the
Shares upon the terms set forth in the Prospectus.
SECTION 4. Delivery and Payment. Delivery to the Underwriters of and
payment for the Firm Shares shall be made at 10:00 A.M., New York City time, on
October ___, 1997 (the Closing Date") at such place as you shall designate.
The Closing Date and the location of delivery of and payment for the Firm
Shares may be varied by agreement between you and the Company.
Delivery to the Underwriters of and payment for any Additional Shares
to be purchased by the Underwriters shall be made at such place as you shall
designate at 10:00 A.M., New York City time, on the date specified in the
applicable exercise notice given by you pursuant to Section 2 (an Option
Closing Date"). Any such Option Closing Date and the location of delivery of
and payment for such Additional Shares may be varied by agreement between you
and the Company.
Certificates for the Shares shall be registered in such names and
issued in such denominations as you shall request in writing not later than two
full business days prior to the Closing Date or an Option Closing Date, as the
case may be. Such certificates shall be made available to you for inspection
not later than 9:30 A.M., New York City time, on the business day prior to the
Closing Date or the applicable Option Closing Date, as the case may be.
Certificates in definitive form evidencing the Shares shall be delivered to you
on the Closing Date or the applicable Option Closing Date, as the case may be,
with any transfer taxes thereon duly paid by the respective Sellers, for the
respective accounts of the several Underwriters, against payment to the Sellers
of the Purchase Price therefor by wire transfer of Federal or other funds
immediately available in New York City.
SECTION 5. Agreements of the Company. The Company agrees with you:
(a) To advise you promptly and, if requested by you, to confirm
such advice in writing, (i) of any request by the Commission for amendments to
the Registration Statement or amendments or supplements to the Prospectus or
for additional information, (ii) of the issuance by the Commission of any stop
order suspending the effectiveness of the Registration Statement or of the
suspension of qualification of the Shares for offering or sale in any
jurisdiction, or the initiation of any proceeding for such purposes, (iii) when
any amendment to the Registration Statement becomes effective, (iv) if the
Company is required to file a Rule 462(b) Registration Statement after the
effectiveness of this
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<PAGE> 5
Agreement, when the Rule 462(b) Registration Statement has become effective and
(v) of the happening of any event during the period referred to in Section 5(d)
below which makes any statement of a material fact made in the Registration
Statement or the Prospectus untrue or which requires any additions to or
changes in the Registration Statement or the Prospectus in order to make the
statements therein not misleading. If at any time the Commission shall issue
any stop order suspending the effectiveness of the Registration Statement, the
Company will use its best efforts to obtain the withdrawal or lifting of such
order at the earliest possible time.
(b) To furnish to you five signed copies of the Registration
Statement as first filed with the Commission and of each amendment to it,
including all exhibits, and to furnish to you and each Underwriter designated
by you such number of conformed copies of the Registration Statement as so
filed and of each amendment to it, without exhibits, as you may reasonably
request.
(c) To prepare the Prospectus, the form and substance of which
shall be satisfactory to you, and to file the Prospectus in such form with the
Commission within the applicable period specified in Rule 424(b) under the Act;
during the period specified in Section 5(d) below, not to file any further
amendment to the Registration Statement and not to make any amendment or
supplement to the Prospectus of which you shall not previously have been
advised or to which you shall reasonably object after being so advised; and,
during such period, to prepare and file with the Commission, promptly upon your
reasonable request, any amendment to the Registration Statement or amendment or
supplement to the Prospectus which may be necessary or advisable in connection
with the distribution of the Shares by you, and to use its best efforts to
cause any such amendment to the Registration Statement to become promptly
effective.
(d) Prior to 10:00 A.M., New York City time, on the first business
day after the date of this Agreement and from time to time thereafter for such
period as in the opinion of counsel for the Underwriters a prospectus is
required by law to be delivered in connection with sales by an Underwriter or a
dealer, to furnish in New York City to each Underwriter and any dealer as many
copies of the Prospectus (and of any amendment or supplement to the Prospectus)
as such Underwriter or dealer may reasonably request.
(e) If during the period specified in Section 5(d), any event
shall occur or condition shall exist as a result of which, in the opinion of
counsel for the Underwriters, it becomes necessary to amend or supplement the
Prospectus in order to make the statements therein, in the light of the
circumstances when the Prospectus is delivered to a purchaser, not misleading,
or if, in the opinion of counsel for the Underwriters, it is necessary to amend
or supplement the Prospectus to comply with applicable law, forthwith to
prepare and file with the Commission an appropriate amendment or supplement to
the Prospectus so that the statements in the Prospectus, as so amended or
supplemented, will not in the light of the circumstances when it is so
delivered, be misleading, or so that the Prospectus will comply with applicable
law, and to furnish to each Underwriter and to any dealer as many copies
thereof as such Underwriter or dealer may reasonably request.
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<PAGE> 6
(f) Prior to any public offering of the Shares, to cooperate with
you and counsel for the Underwriters in connection with the registration or
qualification of the Shares for offer and sale by the several Underwriters and
by dealers under the state securities or Blue Sky laws of such jurisdictions as
you may request, to continue such registration or qualification in effect so
long as required for distribution of the Shares and to file such consents to
service of process or other documents as may be necessary in order to effect
such registration or qualification; provided, however, that the Company shall
not be required in connection therewith to qualify as a foreign corporation in
any jurisdiction in which it is not now so qualified or to take any action that
would subject it to general consent to service of process or taxation other
than as to matters and transactions relating to the Prospectus, the
Registration Statement, any preliminary prospectus or the offering or sale of
the Shares, in any jurisdiction in which it is not now so subject.
(g) To mail and make generally available to its stockholders as
soon as practicable an earnings statement covering the twelve-month period
ending December 31, 1998 that shall satisfy the provisions of Section 11(a) of
the Act, and to advise you in writing when such statement has been so made
available.
(h) During the period of three years after the date of this
Agreement, to furnish to you as soon as available copies of all reports or
other communications furnished to the record holders of Common Stock or
furnished to or filed with the Commission or any national securities exchange
on which any class of securities of the Company is listed and such other
publicly available information concerning the Company and its subsidiaries as
you may reasonably request.
(i) Whether or not the transactions contemplated in this Agreement
are consummated or this Agreement is terminated, except as provided in the
immediately succeeding sentence, to pay or cause to be paid all expenses
incident to the performance of the Sellers' obligations under this Agreement,
including: (i) the fees, disbursements and expenses of the Company's counsel,
the Company's accountants and any Selling Stockholder's counsel (in addition to
the Company's counsel) in connection with the registration and delivery of the
Shares under the Act and all other fees and expenses in connection with the
preparation, printing, filing and distribution of the Registration Statement
(including financial statements and exhibits), any preliminary prospectus, the
Prospectus and all amendments and supplements to any of the foregoing,
including the mailing and delivering of copies thereof to the Underwriters and
dealers in the quantities specified herein, (ii) all costs and expenses related
to the transfer and delivery of the Shares to the Underwriters, including any
transfer or other taxes payable thereon, (iii) all costs of printing or
producing this Agreement and any other agreements or documents in connection
with the offering, purchase, sale or delivery of the Shares, (iv) all expenses
in connection with the registration or qualification of the Shares for offer
and sale under the securities or Blue Sky laws of the several states and all
costs of printing or producing any Preliminary and Supplemental Blue Sky
Memoranda in connection therewith (including the filing fees and fees and
disbursements of counsel for the Underwriters in connection with such
registration or qualification and memoranda relating thereto), (v) the filing
fees and disbursements of counsel for the Underwriters in connection with the
review and
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<PAGE> 7
clearance of the offering of the Shares by the National Association of
Securities Dealers, Inc., (vi) all fees and expenses in connection with the
preparation and filing of the registration statement on Form 8-A relating to
the Common Stock and all costs and expenses incident to the listing of the
Shares on the Nasdaq National Market, (vii) the cost of printing certificates
representing the Shares, (viii) the costs and charges of any transfer agent,
registrar and/or depository, and (ix) all other costs and expenses incident to
the performance of the obligations of the Company and the Selling Stockholders
hereunder for which provision is not otherwise made in this Section.
Notwithstanding the foregoing, the Underwriters shall pay all travel, lodging,
meal and entertainment expenses of the "road show" (other than expenses of
traveling by private or charter airplane, which shall be shared 2/3 by the
Company and 1/3 by the Underwriters). The provisions of this Section shall not
supersede or otherwise affect any agreement that the Company and the Selling
Stockholders may otherwise have for allocation of such expenses among
themselves.
(j) To use its best efforts to list for quotation the Shares on
the Nasdaq National Market and to maintain the listing of the Shares on the
Nasdaq National Market for a period of three years after the date of this
Agreement.
(k) To use its best efforts to do and perform all things required
or necessary to be done and performed under this Agreement by the Company prior
to the Closing Date or any Option Closing Date, as the case may be, and to
satisfy all conditions precedent to the delivery of the Shares.
(l) If the Registration Statement at the time of the effectiveness
of this Agreement does not cover all of the Shares, to file a Rule 462(b)
Registration Statement with the Commission registering the Shares not so
covered in compliance with Rule 462(b) by 10:00 P.M., New York City time, on
the date of this Agreement and to pay to the Commission the filing fee for such
Rule 462(b) Registration Statement at the time of the filing thereof or to give
irrevocable instructions for the payment of such fee pursuant to Rule 111(b)
under the Act.
SECTION 6. Representations and Warranties of the Company. The
Company represents and warrants to and agrees with each Underwriter that:
(a) The Registration Statement has been carefully prepared by the
Company in conformity with the requirements of the Act. The Registration
Statement has become effective (other than any Rule 462(b) Registration
Statement to be filed by the Company after the effectiveness of this
Agreement); any Rule 462(b) Registration Statement filed after the
effectiveness of this Agreement will become effective no later than 10:00 P.M.,
New York City time, on the date of this Agreement; and no stop order suspending
the effectiveness of the Registration Statement is in effect, and no
proceedings for such purpose are pending before or threatened by the
Commission.
(b) (i) The Registration Statement (other than any Rule
462(b) Registration Statement to be filed by the Company after the
effectiveness of this Agreement), when it became effective, did not contain
and, as amended, if applicable, will not contain any
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<PAGE> 8
untrue statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein not
misleading, (ii) the Registration Statement (other than any Rule 462(b)
Registration Statement to be filed by the Company after the effectiveness of
this Agreement) and the Prospectus comply and, as amended or supplemented, if
applicable, will comply in all material respects with the Act, (iii) if the
Company is required to file a Rule 462(b) Registration Statement after the
effectiveness of this Agreement, such Rule 462(b) Registration Statement and
any amendments thereto, when they become effective (A) will not contain any
untrue statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein not misleading
and (B) will comply in all material respects with the Act, (iv) the Prospectus
does not contain and, as amended or supplemented, if applicable, will not
contain any untrue statement of a material fact or omit to state a material
fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, and (v) each
preliminary prospectus filed as part of the Registration Statement as
originally filed or as part of any amendment thereto, or filed pursuant to Rule
424 under the Act, complied when so filed in all material respects with the
Act, and did not contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, except that the representations and warranties set forth
in this paragraph do not apply to statements or omissions in the Registration
Statement or the Prospectus based upon information furnished to the Company in
writing by such Underwriter through you expressly for use therein or relating
to any Selling Stockholder furnished to the Company in writing by such Selling
Stockholder expressly for use therein.
(c) Subsequent to the respective dates as of which information is
given in the Registration Statement and Prospectus: (A) neither the Company nor
any of its subsidiaries, nor the professional associations and professional
corporations which are separate legal entities that contract with the Company
or its subsidiaries to provide physician services in certain states
(collectively, the "PA Contractors"), has incurred any liabilities or
obligations (indirect, direct or contingent) or entered into any oral or
written agreements or other transactions not in the ordinary course of business
that, singly or in the aggregate, could reasonably be expected to be material
to the Company and its subsidiaries or PA Contractors considered as a whole or
that could reasonably be expected to result in a material reduction in the
earnings of the Company and its subsidiaries considered as a whole; (B) neither
the Company nor any of its subsidiaries or PA Contractors has sustained any
loss or interference with its business or properties from strike, fire, flood,
windstorm, accident or other calamity (whether or not covered by insurance)
that, singly or in the aggregate, could reasonably be expected to be material
to the Company and its subsidiaries and PA Contractors considered as a whole;
(C) there has been no material change in the indebtedness of the Company, no
change in the capital stock of the Company and no dividend or distribution of
any kind declared, paid or made by the Company on any class of its capital
stock; and (D) there has not been any material adverse change, nor any
development that could, singly or in the aggregate, result in a material
adverse change in the condition (financial or other), business, prospects or
results
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<PAGE> 9
of operations of the Company and its subsidiaries and PA Contractors considered
as a whole, whether or not arising in the ordinary course of business
("Material Adverse Effect").
(d) The financial statements, together with the related notes and
schedules, set forth in the Prospectus and elsewhere in the Registration
Statement, fairly present, on the basis stated in the Registration Statement,
the financial position and the results of operations and changes in financial
position of the Company and its consolidated subsidiaries and PA Contractors at
the respective dates or for the respective periods therein specified. Such
financial statements and related notes and schedules have been prepared in
accordance with generally accepted accounting principles applied on a
consistent basis except as may be set forth in the Prospectus. The selected
financial data set forth in the Prospectus under the caption "Selected
Consolidated Financial Data" fairly presents, on the basis stated in the
Registration Statement, the information set forth therein.
(e) Deloitte & Touche LLP, who have expressed their opinions on
the audited financial statements and related schedules included in the
Registration Statement, are independent public accountants as required by the
Act.
(f) The pro forma consolidated financial data of the Company and
its consolidated subsidiaries and PA Contractors and the related notes thereto
included in the Registration Statement and the Prospectus have been prepared in
accordance with the Commission's rules and guidelines with respect to pro forma
financial statements and have been properly compiled on the bases described
therein, and the assumptions used in the preparation thereof are reasonable and
the adjustments used therein are appropriate to give effect to the transactions
and circumstances referred to therein.
(g) The Company and each of its subsidiaries and PA Contractors
have been duly organized and are validly existing and in good standing as
corporations under the laws of their respective jurisdictions of organization,
with corporate power and authority to own, lease and operate their properties
and to conduct their businesses as described in the Registration Statement and
Prospectus; the Company and each of its subsidiaries and PA Contractors are in
possession of and operating in compliance in with all franchises, grants,
authorizations, licenses, permits, easements, consents, certificates and orders
required for the conduct of their businesses, all of which are valid and in
full force and effect, except where the failure to posses or operate in
compliance with such items would not singly or in the aggregate result in a
Material Adverse Effect, and neither the Company nor any of its subsidiaries or
PA Contractors has received any notice of proceedings relating to the
revocation or modification of any such franchise, grant, authorization,
license, permit, easement, consent, certificate or order which, singly or in
the aggregate, if the subject of an unfavorable decision, would result in a
Material Adverse Effect; and the Company and each of such subsidiaries and PA
Contractors are duly qualified to do business and in good standing as foreign
corporations in all other jurisdictions where their ownership or leasing of
properties or the conduct of their businesses requires such
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<PAGE> 10
qualification, except where the failure to be so qualified would not singly or
in the aggregate have a Material Adverse Effect.
(h) The Company has authorized, issued and outstanding capital
stock as set forth under the heading "Capitalization" in the Prospectus (except
for subsequent issuances, if any, pursuant to reservations or agreements
referred to in the Prospectus); the issued and outstanding shares of Common
Stock (including the outstanding shares of the Shares) of the Company conform
to the description thereof in the Prospectus and have been duly authorized and
validly issued and are fully paid and nonassessable and have been issued in
compliance with all applicable federal and state securities laws and
regulations and are listed on the Nasdaq National Market; the stockholders of
the Company have no preemptive or similar rights with respect to any shares of
capital stock of the Company and all outstanding shares of capital stock of
each corporate subsidiary have been duly authorized and validly issued, and are
fully paid and nonassessable and are owned directly by the Company or by
another subsidiary of the Company, and except as disclosed in the Prospectus,
free and clear of any liens, encumbrances, equities or claims.
(i) The Shares to be issued and sold by the Company to the
Underwriters hereunder have been duly and validly authorized and, when issued
and delivered against payment therefor as provided herein, will be duly and
validly issued and fully paid and nonassessable and will conform to the
description thereof in the Prospectus.
(j) Except as disclosed in the Prospectus, there are no legal or
governmental proceedings pending to which the Company or any of its
subsidiaries or PA Contractors is a party or of which any property of the
Company or any subsidiary or PA Contractors is the subject, that are required
to be disclosed in the Registration Statement (other than as described
therein), or which, if determined adversely to the Company or any subsidiary,
would individually or in the aggregate result in a Material Adverse Effect to
the Company and its subsidiaries and PA Contractors or which might materially
and adversely affect the consummation of this Agreement; and to the best of the
Company's knowledge no such proceedings are threatened or contemplated by
governmental authorities or threatened by others.
(k) Neither the Company nor any of its subsidiaries or PA
Contractors is, or with the giving of notice or passage of time or both would
be, in breach or violation of any of the terms or provisions of or in default
under: (A) any statute, rule or regulation applicable to the Company or any of
its subsidiaries or PA Contractors; (B) any indenture, contract, lease,
mortgage, deed of trust, note or other agreement or instrument to which the
Company or such subsidiary or PA Contractor is a party or by which it may be
bound; (C) its certificate of incorporation, by-laws or other organizational
documents; (D) any order, decree or judgment of any court or governmental
agency or body having jurisdiction over the Company or any of its subsidiaries
or PA Contractors; or (E) any Licenses (as defined below), in each case (other
than clause (C) of this Section l(k)) where such breach, violation or default
would have a Material Adverse Effect. The performance of this Agreement and
the consummation of the transactions herein contemplated will not, with the
giving of notice or passage of time or both, result in a breach or violation of
any
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<PAGE> 11
of the terms or provisions of or constitute a default under: (V) any statute,
rule or regulation, to the best of the Company's knowledge after due inquiry,
applicable to the Company or any of its subsidiaries or PA Contractors; (W) any
indenture, contract, mortgage, lease, deed of trust, note or other agreement or
instrument to which the Company or any of its subsidiaries or PA Contractors is
a party or by which it or any of them is bound; (X) the Company's or any such
subsidiary's or PA Contractor's certificate of incorporation, by-laws or other
organizational documents; (Y) any order, decree judgment of any court or
governmental agency or body having jurisdiction over the Company or any of its
subsidiaries or PA Contractors or any of their respective properties; or (Z)
any Licenses (as defined below).
(l) No labor dispute with the employees of the Company or any of
its subsidiaries exists or, to the best of the Company's knowledge after due
inquiry, is imminent.
(m) No consent, approval, authorization, order, registration or
qualification of or with any court or governmental agency or body is required
for the issuance and sale of the Shares by the Company or for the consummation
by the Company of the transactions contemplated by this Agreement, including,
without limitation, the use of the proceeds from the sale of the Shares to be
sold by the Company in the manner contemplated in the Prospectus under the
caption "Use of Proceeds," except such as may be required by the National
Association of Securities Dealers, Inc. (the "NASD") or under the Act or the
securities or Blue Sky laws of any jurisdiction in connection with the purchase
and distribution of the Shares by the Underwriters.
(n) This Agreement has been duly authorized, executed and delivered
by the Company.
(o) Except as disclosed in the Prospectus, the Company and its
subsidiaries and PA Contractors have no trademarks, trademark registrations,
service marks, service mark registrations, trade names or copyrights that are
necessary for the conduct of their respective businesses as described in the
Prospectus.
(p) The Company and its subsidiaries and PA Contractors have such
certificates, permits, licenses, franchises, consents, approvals,
authorizations and clearances issued by the appropriate federal, state or
foreign regulatory authorities as are necessary to own, lease or operate their
respective properties and to conduct their respective businesses in the manner
described in the Prospectus ("Licenses") and all such Licenses are valid and in
full force and effect, except where the failure to possess such Licenses would
not singly or in the aggregate have a Material Adverse Effect. The Company and
each of its subsidiaries and PA Contractors are in compliance in all material
respects with their respective obligations under such Licenses and no event has
occurred that allows, or after notice or lapse of time or both would allow,
revocation, suspension or termination of any such License or a violation of any
such laws or regulations, except where such revocation, suspension, termination
or violation would not singly or in the aggregate have a Material Adverse
Effect. Neither the Company nor any Subsidiary or
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<PAGE> 12
PA Contractor has received any notice of proceedings relating to the revocation
or modification of any such License which, singly or in the aggregate, if the
subject of an unfavorable decision, ruling or finding, would result in a
Material Adverse Effect, except as described in or contemplated by the
Prospectus. No such License contains a material restriction on the Company or
any of its subsidiaries or PA Contractors that is not adequately disclosed in
the Registration Statement and the Prospectus.
(q) The Company is not an "investment company" or an entity
"controlled" by an "investment company" as such terms are defined in the
Investment Company Act of 1940, as amended.
(r) The Company and its subsidiaries and PA Contractors have good
and marketable title to all properties (real and personal) owned by the Company
and its subsidiaries and PA Contractors, free and clear (except as disclosed in
the Prospectus) of any mortgage, pledge, lien, security interest, claim or
encumbrance of any kind that may materially interfere with the use of such
properties or the conduct of the business of the Company and its subsidiaries
and PA Contractors considered as a whole; and all material properties held
under lease or sublease by the Company or its subsidiaries or PA Contractors
are held under valid, subsisting and enforceable leases or subleases.
(s) The Company and its subsidiaries and PA Contractors maintain
accurate books and records reflecting their respective assets and maintain
internal accounting controls which provide reasonable assurance that (A)
material transactions are executed with Company management's authorization, (B)
transactions are recorded as necessary to permit preparation of financial
statements and to maintain accountability for assets, (C) access to assets is
permitted only in accordance with Company management's authorization and (D)
the reported accountability of assets is compared with existing assets at
reasonable intervals.
(t) The Company has complied, and will continue to comply, with
all provisions of Section 517.075 of the Florida Statutes (Chapter 92-198, Laws
of Florida) and the rules thereunder.
(u) The Company and its subsidiaries and PA Contractors carry or
are entitled to the benefits of insurance in such amounts and covering such
risks as, to the best of the Company's knowledge after due inquiry, is
generally maintained by or on behalf of companies of established repute engaged
in the same or similar business, and all such insurance is in full force and
effect.
(v) The Company and its subsidiaries have filed all federal,
state, local and foreign tax returns required to be filed, such returns are
complete and accurate in all material respects, and all taxes shown by such
returns or otherwise assessed that are due or payable have been paid, except
such taxes as are being contested in good faith and as to which adequate
reserves have been provided. The charges, accruals and reserves on the books
of the Company and its subsidiaries in respect of any tax liability for any
year not finally determined are adequate to meet any assessments or
reassessments for additional
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<PAGE> 13
taxes; and there has been no tax deficiency asserted and, to the best knowledge
of the Company, no tax deficiency might be asserted or threatened against the
Company or any of its subsidiaries that could, singly or in the aggregate, have
a Material Adverse Effect.
(w) Each "employee benefit plan" within the meaning of the
Employee Retirement Income Security Act of 1974, as amended ("ERISA"), in which
employees of the Company or any of its subsidiaries are eligible to participate
is in compliance in all material respects with the applicable provisions of
ERISA and the Internal Revenue Code of 1986, as amended. Neither the Company
nor any of its subsidiaries have any liability under Title IV of ERISA, nor
does the Company or any of its subsidiaries expect that any such liability will
be incurred, that could singly or in the aggregate, have a Material Adverse
Effect.
(x) No transaction has occurred between or among the Company, its
subsidiaries, its PA contractors and any of their respective officers,
directors or affiliates or, to the best of the Company's knowledge, any
affiliate of any such officer or director, that is required to be described in
the Registration Statement that is not so described.
(y) Except as disclosed in the Prospectus, there are no contracts,
agreements or understandings between the Company or its subsidiaries or PA
Contractors and any third party (whether acting in an individual, fiduciary or
other capacity) granting such third party the right to require the Company to
file a registration statement under the Act with respect to any securities of
the Company owned or to be owned by such third party or to require the Company
to include such securities in the securities registered pursuant to the
Registration Statement or in any securities being registered pursuant to any
other registration statement filed by the Company under the Act.
(z) There are no statutes, regulations, contracts or other
documents that are required to be described in the Registration Statement or
the Prospectus or to be filed as an exhibit to the Registration Statement that
are not described or filed as required. The contracts so described in the
Registration Statement and the Prospectus are in full force and effect and
neither the Company or any of its subsidiaries or PA Contractors nor, to the
best knowledge of the Company, any other party is in breach of or default under
any such contracts, except for such defaults or breaches that would not singly
or in the aggregate have a Material Adverse Effect.
(aa) The Company has not taken and will not take, directly or
indirectly, any action designed to or that could reasonably be expected to
cause or result in the stabilization or manipulation of the price of the Common
Stock and the Company has not distributed and will not distribute any offering
material in connection with the offering and sale of the Shares other than any
preliminary prospectus filed with the Commission or the Prospectus or other
materials, if any, permitted by the Act.
(bb) The business conducted by the Company and its subsidiaries and
PA Contractors and the contractual relationships between (A) the Company or any
of its subsidiaries or PA Contractors and the health care payors with which
they contract and
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<PAGE> 14
(B) the Company or any of its subsidiaries or PA Contractors and the health
care providers with which they contract, to the best knowledge of the Company
after due inquiry, do not violate any federal or state health care laws and
regulations, or any federal or state patient confidentiality laws and
regulations or any federal or state insurance laws and regulations (including
but not limited to those governing health maintenance organizations and
preferred provider organizations) in such jurisdictions in which the Company
and any of its subsidiaries or PA Contractors are operating that are applicable
to such business and such relationships, including those laws governing
insurance risk and risk allocation, corporate practice of medicine, medical
practices, professional corporations, fee splitting, fraud and abuse and
self-referral, except for violations that would not have a Material Adverse
Effect and except as disclosed in the Prospectus.
(cc) Except as set forth in Section 1.2(g) of the Stock Purchase
Agreement, dated as of October 15, 1996, by and among the Company, Beno
Michell, M.D., Inc. and Beno Michell, M.D. and except for certain other rights
that expire upon the closing of the transactions contemplated hereby, there are
no outstanding subscriptions, rights, warrants, options, calls, convertible
securities, commitments of sale or liens granted or issued by the Company or
any of its subsidiaries or PA Contractors relating to or entitling any person
to purchase or otherwise to acquire any shares of the capital stock of the
Company or any of its subsidiaries or PA Contractors, except as otherwise
disclosed in the Registration Statement and the Prospectus.
(dd) Each certificate signed by any officer of the Company and
delivered to the Underwriters or counsel for the Underwriters shall be deemed
to be a representation and warranty by the Company to the Underwriters as to
the matters covered thereby.
SECTION 7. Representations and Warranties of the Selling
Stockholders.. Each Selling Stockholder, severally and not jointly, represents
and warrants to each Underwriter that:
(a) Such Selling Stockholder has beneficial ownership of the
Shares to be sold by such Selling Stockholder pursuant to this Agreement and on
any Option Closing Date on which any of such Shares are to be sold hereunder
will be the lawful owner of such Shares and will have good and valid title to
such Shares, free of all restrictions on transfer, pledges, liens,
encumbrances, security interests and claims whatsoever.
(b) On any Option Closing Date on which any Shares are to be sold
hereunder, the Shares to be sold by such Selling Stockholder will have been
duly authorized, validly issued, fully paid and non-assessable prior to the
time that such Shares are delivered to the Underwriters.
(c) Such Selling Stockholder has, and on the Closing Date will
have, full legal right, power and authority, and all authorization and approval
required by law, to enter into this Agreement, the Custody Agreement signed by
such Selling Stockholder and American Stock Transfer and Trust Company, as
Custodian, relating to the deposit of the Shares to be sold by such Selling
Stockholder (the "Custody Agreement") and the Power
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<PAGE> 15
of Attorney of such Selling Stockholder appointing certain individuals as such
Selling Stockholder's attorneys-in-fact (the "Attorneys") to the extent set
forth therein, relating to the transactions contemplated hereby and by the
Registration Statement and the Custody Agreement (the Power of Attorney") and
to sell, assign, transfer and deliver the Shares to be sold by such Selling
Stockholder in the manner provided herein and therein.
(d) This Agreement has been duly authorized, executed and
delivered by or on behalf of such Selling Stockholder.
(e) The Custody Agreement of such Selling Stockholder has been
duly authorized, executed and delivered by such Selling Stockholder and is a
valid and binding agreement of such Selling Stockholder, enforceable in
accordance with its terms.
(f) The Power of Attorney of such Selling Stockholder has been
duly authorized, executed and delivered by such Selling Stockholder and is a
valid and binding instrument of such Selling Stockholder, enforceable in
accordance with its terms, and, pursuant to such Power of Attorney, such
Selling Stockholder has, among other things, authorized the Attorneys, or any
one of them, to execute and deliver on such Selling Stockholder's behalf this
Agreement and any other document that they, or any one of them, may deem
necessary or desirable in connection with transactions contemplated hereby and
thereby and to deliver the Shares to be sold by such Selling Stockholder
pursuant to this Agreement.
(g) Upon delivery of and payment for the Shares to be sold by such
Selling Stockholder pursuant to this Agreement, good and clear title to such
Shares will pass to the Underwriters, free of all restrictions on transfer,
liens, encumbrances, security interests, equities and claims whatsoever.
(h) The execution, delivery and performance of this Agreement and
the Custody Agreement and Power of Attorney of such Selling Stockholder by or
on behalf of such Selling Stockholder, the compliance by such Selling
Stockholder with all the provisions hereof and thereof and the consummation of
the transactions contemplated hereby and thereby will not (i) require any
consent, approval, authorization or other order of, or qualification with, any
court or governmental body or agency (except such as may be required under the
securities or Blue Sky laws of the various states), (ii) conflict with or
constitute a breach of any of the terms or provisions of, or a default under,
the organizational documents of such Selling Stockholder, if such Selling
Stockholder is not an individual, or any indenture, loan agreement, mortgage,
lease or other agreement or instrument to which such Selling Stockholder is a
party or by which such Selling Stockholder or any property of such Selling
Stockholder is bound or (iii) violate or conflict with any applicable law or
any rule, regulation, judgment, order or decree of any court or any
governmental body or agency having jurisdiction over such Selling Stockholder
or any property of such Selling Stockholder.
(i) All information furnished or to be furnished in writing to the
Company by or on behalf of such Selling Stockholder expressly for use in the
Registration Statement
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<PAGE> 16
and the Prospectus, insofar as it relates to such Selling Stockholder, is or
will be true and correct in all material respects and, with respect to the
Registration Statement, does not and will not contain an untrue statement of a
material fact or omit to state any material fact required to be stated therein
or necessary to make the statements therein not misleading, and, with respect
to the Prospectus, does not and will not contain any untrue statement of a
material fact or omit to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading.
(j) At any time during the period described in Section 5(d), if
there is any change in the information referred to in Section 7(i), such
Selling Stockholder will immediately notify you of such change.
(k) Nothing has come to such Selling Stockholder's attention that
has caused such Selling Stockholder to believe that (i) at the time the
Registration Statement became effective and at the date hereof, it included or
includes any untrue statement of a material fact or omitted or omits to state
any material fact required to be stated therein or necessary to make the
statements therein not misleading and (ii) the Prospectus, at the time it
became effective and as of the date hereof and at the Closing Date, the
Prospectus included, includes or will include any untrue statement of material
fact or omitted, omits or will omit to state any material fact necessary in
order to make the statements therein, in the light of the circumstances under
which they were made, not misleading. The foregoing representations and
warranties in this subsection (k) shall not apply to information contained in
or omitted from the Registration Statement or the Prospectus in reliance upon,
and in conformity with, written information furnished to the Company by or on
behalf of any Underwriter, directly or through the Representatives,
specifically for use in the preparation thereof.
(l) Such Selling Stockholder has not (i) taken, directly or
indirectly, any action designed to cause or result in, or that has constituted
or might reasonably be expected to constitute, the stabilization or
manipulation of the price of any security of the Company to facilitate the sale
or resale of the Shares or (ii) since the filing of the Registration Statement
(A) sold, bid for, purchase or paid anyone any compensation for soliciting
purchases of, the Shares or (B) paid or agreed to pay to any person any
compensation for soliciting another to purchase any other securities of the
Company.
(m) Each certificate signed by or on behalf of such Selling
Stockholder and delivered to the Underwriters or counsel for the Underwriters
shall be deemed to be a representation and warranty by such Selling Stockholder
to the Underwriters as to the matters covered thereby.
SECTION 8. Indemnification.
(a) (i) The Company agrees to indemnify and hold harmless each
Underwriter, its directors, its officers and each person, if any, who controls
any Underwriter within the meaning of Section 15 of the Act or Section 20 of
the Securities Exchange Act of 1934, as
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<PAGE> 17
amended (the "Exchange Act"), from and against any and all losses, claims,
damages, liabilities and judgments (including, without limitation, any legal or
other expenses incurred in connection with investigating or defending any
matter, including any action, that could give rise to any such losses, claims,
damages, liabilities or judgments) caused by any untrue statement or alleged
untrue statement of a material fact contained in the Registration Statement (or
any amendment thereto), the Prospectus (or any amendment or supplement thereto)
or any preliminary prospectus, or caused by any omission or alleged omission to
state therein a material fact required to be stated therein or necessary to
make the statements therein not misleading, except insofar as such losses,
claims, damages, liabilities or judgments are caused by any such untrue
statement or omission or alleged untrue statement or omission based upon
information relating to any Underwriter furnished in writing to the Company by
such Underwriter through you expressly for use therein.
(ii) Each Selling Stockholder, severally and not jointly,
agrees to indemnify and hold harmless each Underwriter, its directors, its
officers and each person, if any, who controls any Underwriter within the
meaning of Section 15 of the Act or Section 20 of the Exchange Act, from and
against any and all losses, claims, damages, liabilities and judgments
(including, without limitation, any reasonable legal or other expenses incurred
in connection with investigating or defending any matter, including any action,
that could give rise to any such losses, claims, damages, liabilities or
judgments) caused by any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement (or any amendment
thereto), the Prospectus (or any amendment or supplement thereto) or any
preliminary prospectus, or caused by any omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, except insofar as such losses, claims,
damages, liabilities or judgments are caused by any such untrue statement or
omission or alleged untrue statement or omission based upon information
relating to any Underwriter furnished in writing to the Company by such
Underwriter through you expressly for use therein, and except that the
indemnification obligation of each Selling Stockholder hereunder shall be
limited solely to losses, claims, damages, liabilities and judgments caused by
untrue statements or alleged untrue statements or omissions or alleged
omissions made in reliance upon information relating to such Selling
Stockholder furnished in writing to the Company by or on behalf of such Selling
Stockholder expressly for use therein. Notwithstanding the foregoing, the
aggregate liability of any Selling Stockholder pursuant to this Section 8(a)
shall be limited to an amount equal to the total proceeds (net of discounts and
expenses) received by such Selling Stockholder from the Underwriters for the
sale of the Shares sold by such Selling Stockholder hereunder.
(b) Each Underwriter agrees, severally and not jointly, to
indemnify and hold harmless the Company, its directors, its officers who sign
the Registration Statement, each person, if any, who controls the Company
within the meaning of Section 15 of the Act or Section 20 of the Exchange Act,
each Selling Stockholder and each person, if any, who controls such Selling
Stockholder within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act to the same extent as the foregoing indemnity from the Sellers to
such Underwriter but only with reference to information relating to such
Underwriter
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<PAGE> 18
furnished in writing to the Company by such Underwriter through you expressly
for use in the Registration Statement (or any amendment thereto), the
Prospectus (or any amendment or supplement thereto) or any preliminary
prospectus.
(c) In case any action shall be commenced involving any person in
respect of which indemnity may be sought pursuant to Section 8(a) or 8(b) (the
indemnified party"), the indemnified party shall promptly notify the person
against whom such indemnity may be sought (the indemnifying party") in writing
and the indemnifying party shall assume the defense of such action, including
the employment of counsel reasonably satisfactory to the indemnified party and
the payment of all fees and expenses of such counsel, as incurred (except that
in the case of any action in respect of which indemnity may be sought pursuant
to both Sections 8(a) and 8(b), the Underwriter shall not be required to assume
the defense of such action pursuant to this Section 8(c), but may employ
separate counsel and participate in the defense thereof, but the fees and
expenses of such counsel, except as provided below, shall be at the expense of
such Underwriter). Any indemnified party shall have the right to employ
separate counsel in any such action and participate in the defense thereof, but
the fees and expenses of such counsel shall be at the expense of the
indemnified party unless (i) the employment of such counsel shall have been
specifically authorized in writing by the indemnifying party, (ii) the
indemnifying party shall have failed to assume the defense of such action or
employ counsel reasonably satisfactory to the indemnified party or (iii) the
named parties to any such action (including any impleaded parties) include both
the indemnified party and the indemnifying party, and the indemnified party
shall have been advised by such counsel that there may be one or more legal
defenses available to it which are different from or additional to those
available to the indemnifying party (in which case the indemnifying party shall
not have the right to assume the defense of such action on behalf of the
indemnified party). In any such case, the indemnifying party shall not, in
connection with any one action or separate but substantially similar or related
actions in the same jurisdiction arising out of the same general allegations or
circumstances, be liable for (i) the fees and expenses of more than one
separate firm of attorneys (in addition to any local counsel) for all
Underwriters, their officers and directors and all persons, if any, who control
any Underwriter within the meaning of either Section 15 of the Act or Section
20 of the Exchange Act, (ii) the fees and expenses of more than one separate
firm of attorneys (in addition to any local counsel) for the Company, its
directors, its officers who sign the Registration Statement and all persons, if
any, who control the Company within the meaning of either such Section and
(iii) the fees and expenses of more than one separate firm of attorneys (in
addition to any local counsel) for all Selling Stockholders and all persons, if
any, who control any Selling Stockholder within the meaning of either such
Section, and all such fees and expenses shall be reimbursed as they are
incurred. In the case of any such separate firm for the Underwriters, their
officers and directors and such control persons of any Underwriters, such firm
shall be designated in writing by Donaldson, Lufkin & Jenrette Securities
Corporation. In the case of any such separate firm for the Company and such
directors, officers and control persons of the Company, such firm shall be
designated in writing by the Company. In the case of any such separate firm
for the Selling Stockholders and such control persons of any Selling
Stockholders, such firm shall be designated in writing by the
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<PAGE> 19
Attorneys. The indemnifying party shall indemnify and hold harmless the
indemnified party from and against any and all losses, claims, damages,
liabilities and judgments by reason of any settlement of any action (i)
effected with its written consent or (ii) effected without its written consent
if the settlement is entered into more than twenty business days after the
indemnifying party shall have received a request from the indemnified party for
reimbursement for the fees and expenses of counsel (in any case where such fees
and expenses are at the expense of the indemnifying party) and, prior to the
date of such settlement, the indemnifying party shall have failed to comply
with such reimbursement request. No indemnifying party shall, without the
prior written consent of the indemnified party, effect any settlement or
compromise of, or consent to the entry of judgment with respect to, any pending
or threatened action in respect of which the indemnified party is or could have
been a party and indemnity or contribution may be or could have been sought
hereunder by the indemnified party, unless such settlement, compromise or
judgment (i) includes an unconditional release of the indemnified party from
all liability on claims that are or could have been the subject matter of such
action and (ii) does not include a statement as to or an admission of fault,
culpability or a failure to act, by or on behalf of the indemnified party.
(d) To the extent the indemnification provided for in this Section
8 is unavailable to an indemnified party or insufficient in respect of any
losses, claims, damages, liabilities or judgments referred to therein, then
each indemnifying party, in lieu of indemnifying such indemnified party, shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages, liabilities and judgments (i) in such
proportion as is appropriate to reflect the relative benefits received by the
Sellers on the one hand and the Underwriters on the other hand from the
offering of the Shares or (ii) if the allocation provided by clause 8(d)(i)
above is not permitted by applicable law, in such proportion as is appropriate
to reflect not only the relative benefits referred to in clause 8(d)(i) above
but also the relative fault of the Sellers on the one hand and the Underwriters
on the other hand in connection with the statements or omissions which resulted
in such losses, claims, damages, liabilities or judgments, as well as any other
relevant equitable considerations. The relative benefits received by the
Sellers on the one hand and the Underwriters on the other hand shall be deemed
to be in the same proportion as the total net proceeds from the offering (net
of discounts and expenses) received by the Sellers, and the total underwriting
discounts and commissions received by the Underwriters, bear to the total price
to the public of the Shares, in each case as set forth in the table on the
cover page of the Prospectus. The relative fault of the Sellers on the one
hand and the Underwriters on the other hand shall be determined by reference
to, among other things, whether the untrue or alleged untrue statement of a
material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Company or the Selling Stockholders on
the one hand or the Underwriters on the other hand and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission.
The Sellers and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Section 8(d) were determined by pro
rata allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of
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<PAGE> 20
allocation which does not take account of the equitable considerations referred
to in the immediately preceding paragraph. The amount paid or payable by an
indemnified party as a result of the losses, claims, damages, liabilities or
judgments referred to in the immediately preceding paragraph shall be deemed to
include, subject to the limitations set forth above, any legal or other
expenses incurred by such indemnified party in connection with investigating or
defending any matter, including any action, that could have given rise to such
losses, claims, damages, liabilities or judgments. Notwithstanding the
provisions of this Section 8, no Underwriter shall be required to contribute
any amount in excess of the amount by which the total price at which the Shares
underwritten by it and distributed to the public were offered to the public
exceeds the amount of any damages which such Underwriter has otherwise been
required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligations to contribute pursuant to
this Section 8(d) are several in proportion to the respective number of Shares
purchased by each of the Underwriters hereunder and not joint. The obligations
of the Sellers to contribute pursuant to this Section 8(d) are several in
proportion to the respective number of Shares sold by each of the Sellers
hereunder and not joint.
(e) The remedies provided for in this Section 8 are not exclusive
and shall not limit any rights or remedies which may otherwise be available to
any indemnified party at law or in equity.
(f) Each Selling Stockholder hereby designates AmeriPath, Inc.,
7289 Garden Road, Suite 200, Riviera Beach, Florida 33404, as its authorized
agent, upon which process may be served in any action which may be instituted
in any state or federal court in the State of New York by any Underwriter, any
director or officer of any Underwriter or any person controlling any
Underwriter asserting a claim for indemnification or contribution under or
pursuant to this Section 8, and each Selling Stockholder will accept the
jurisdiction of such court in such action, and waives, to the fullest extent
permitted by applicable law, any defense based upon lack of personal
jurisdiction or venue. A copy of any such process shall be sent or given
promptly to such Selling Stockholder, at the address for notices specified in
Section 12 hereof.
SECTION 9. Conditions of Underwriters' Obligations. The several
obligations of the Underwriters to purchase the Firm Shares under this
Agreement are subject to the satisfaction of each of the following conditions:
(a) All the representations and warranties of the Company
contained in this Agreement shall be true and correct on the Closing Date with
the same force and effect as if made on and as of the Closing Date.
(b) If the Company is required to file a Rule 462(b) Registration
Statement after the effectiveness of this Agreement, such Rule 462(b)
Registration Statement shall have become effective by 10:00 P.M., New York City
time, on the date of this Agreement;
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<PAGE> 21
and no stop order suspending the effectiveness of the Registration Statement
shall have been issued and no proceedings for that purpose shall have been
commenced or shall be pending before or contemplated by the Commission.
(c) You shall have received on the Closing Date a certificate
dated the Closing Date, signed by James C. New and Robert P. Wynn, in their
capacities as the President and Chief Executive Officer and Executive Vice
President and Chief Financial Officer, respectively, of the Company, confirming
the matters set forth in Sections 6(t), 9(a) and 9(b) and that the Company has
complied with all of the agreements and satisfied all of the conditions herein
contained and required to be complied with or satisfied by the Company on or
prior to the Closing Date.
(d) Since the respective dates as of which information is given in
the Prospectus other than as set forth in the Prospectus (exclusive of any
amendments or supplements thereto subsequent to the date of this Agreement),
(i) there shall not have occurred any change or any development involving a
prospective change in the condition, financial or otherwise, or the earnings,
business, management or operations of the Company and its subsidiaries, taken
as a whole, (ii) there shall not have been any change or any development
involving a prospective change in the capital stock or in the long-term debt of
the Company or any of its subsidiaries and (iii) neither the Company nor any of
its subsidiaries shall have incurred any liability or obligation, direct or
contingent, the effect of which, in any such case described in clause 9(d)(i),
9(d)(ii) or 9(d)(iii), in your judgment, is material and adverse and, in your
judgment, makes it impracticable to market the Shares on the terms and in the
manner contemplated in the Prospectus.
(e) All the representations and warranties of each Selling
Stockholder contained in this Agreement shall be true and correct in all
material respects (except that those representations and warranties which are
qualified as to materiality shall be true and correct in all respects) on the
Closing Date with the same force and effect as if made on and as of the Closing
Date and you shall have received on the Closing Date a certificate dated the
Closing Date from each Selling Stockholder to such effect and to the effect
that such Selling Stockholder has complied with all of the agreements and
satisfied all of the conditions herein contained and required to be complied
with or satisfied by such Selling Stockholder on or prior to the Closing Date.
(f) You shall have received on the Closing Date an opinion
(satisfactory to you and counsel for the Underwriters), dated the Closing Date,
of Greenberg, Traurig, Hoffman, Lipoff, Rosen & Quentel, P.A. counsel for the
Company, to the effect that:
(i) The Company has been duly incorporated, is validly
existing as a corporation in good standing under the laws of Delaware
and has corporate power and authority to own or lease its properties
and conduct its business as described in the Prospectus. The Company
is duly qualified as a foreign corporation in good standing in all
other jurisdictions where its ownership or leasing of properties or
the conduct of its business requires such qualification, except where
the failure to so qualify would not, singly or in the aggregate, have
a Material Adverse Effect.
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<PAGE> 22
(ii) The Company has authorized and, to the best of such
counsel's knowledge, outstanding capital stock as set forth under the
heading "Capitalization" in the Prospectus; all outstanding shares of
Common Stock (including the Shares to be sold by the Selling
Stockholders) conform to the description thereof in the Prospectus and
have been duly authorized and validly issued and are fully paid and
nonassessable, and the stockholders of the Company have no statutory
preemptive rights, or to the best of such counsel's knowledge, similar
rights with respect to any shares of capital stock of the Company; the
Shares to be issued and sold by the Company hereunder have been duly
authorized and, when issued and delivered to the Underwriters against
payment therefor as provided by this Agreement, will be validly
issued, fully paid and non-assessable, and the issuance of such Shares
will not be subject to any statutory preemptive rights, or to the best
of such counsel's knowledge, similar rights with respect to any shares
of capital stock of the Company.
(iii) To the best of such counsel's knowledge, there are no
legal or governmental proceedings pending other than those set forth
under "Business _ Legal Proceedings" in the Prospectus to which the
Company or any of its subsidiaries or PA Contractors is a party or of
which any property of the Company or any subsidiary or PA Contractor
is the subject, which individually or in the aggregate, if adversely
determined, would have a Material Adverse Effect; and to the best of
such counsel's knowledge no such proceedings are threatened by
governmental authorities or others.
(iv) This Agreement has been duly authorized, executed and
delivered by the Company; and the performance of this Agreement and
the consummation of the transactions herein contemplated will not
result in a breach or violation of any of the terms or provisions of
or constitute a default under any federal or Florida statute,
contract, indenture, mortgage, deed of trust, loan agreement, note,
lease or other agreement or instrument known to such counsel to which
the Company is a party or by which it is bound, the Company's
Certificate of Incorporation or Bylaws, or any order, rule or
regulation known to such counsel of any court or governmental agency
or body having jurisdiction over the Company or any of its properties
(except any state securities or "Blue Sky" rules or regulations, as to
which such counsel shall render no opinion).
(v) No consent, approval, authorization or order of any
court or governmental agency or body is required for consummation by
the Company of the transactions contemplated by this Agreement, except
as such as may be required under the Act or as may be required under
the securities or Blue Sky laws of any jurisdiction or by the NASD in
connection with the purchase and distribution of the Shares by the
Underwriters.
(vi) The Registration Statement has become effective under
the Act and, to the best of the knowledge of such counsel, no stop
order suspending the
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<PAGE> 23
effectiveness thereof has been issued and no proceedings for that
purpose have been instituted or are pending or contemplated under the
Act.
(vii) The Common Stock has been approved for listing on the
Nasdaq National Market. The Registration Statement on Form 8-A
relating to the Common Stock has become effective under the Securities
Exchange Act of 1934, as amended.
(viii) The Registration Statement and the Prospectus (other
than the financial statements and financial statement schedule(s)
included therein, as to which no opinions need be rendered), and each
amendment or supplement thereto, as of their respective effective or
issue dates and as of the Closing Date complied as to form in all
material respects with the requirements of the Act.
(ix) The descriptions in the Registration Statement and
Prospectus of contracts and other documents are accurate in all
material respects and such descriptions fairly present in all material
respects the information required to be shown; and such counsel does
not know of any legal or governmental proceedings or of any contracts
or documents of a character required to be described in the
Registration Statement or Prospectus or to be filed as exhibits to the
Registration Statement or Prospectus which are not described and filed
as required.
(x) The Company is not, and will not be as a result of
the consummation of the transactions contemplated by this Agreement,
an "investment company" or a company "controlled" by an investment
company within the meaning of the Investment Company Act of 1940, as
amended.
(xi) Nothing has come to such counsel's attention that
would lead such counsel to believe that the Registration Statement
(other than the financial statements and financial statement
schedule(s), as to which no opinions need be rendered) and the
Prospectus included therein at the time the Registration Statement
became effective or at the date hereof, contained any untrue statement
of a material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading or that the Prospectus included any untrue statement of a
material fact or omitted to state any material fact necessary to make
the statements therein, in the light of the circumstances under which
they were made, not misleading.
(xii) Each of the subsidiaries of the Company (the
"Subsidiaries") and the PA Contractors, has each been duly
incorporated or organized, is validly existing as a corporation in
good standing under the laws of its respective jurisdiction of
incorporation and has corporate power and authority to own its
respective properties and conduct its respective business as described
in the Prospectus, and each of such Subsidiaries and PA Contractors is
duly qualified as a foreign corporation in good standing and in all
other jurisdictions where its ownership or leasing of properties or
the conduct of its business requires such
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<PAGE> 24
qualification, except where the failure to be so qualified would not
singly or in the aggregate have a Material Adverse Effect.
(xiii) All outstanding shares of capital stock of the
Subsidiaries have been duly authorized and validly issued, are fully
paid and nonassessable, and are owned by the Company, except as
disclosed in the Prospectus, free and clear of any liens,
encumbrances, equities and claims.
(xiv) As of the Closing Date, the business conducted by the
Company and its subsidiaries and the material contractual
relationships between (A) the Company and any of its subsidiaries and
the healthcare payors with which it contracts and (B) the Company and
any of its subsidiaries and the health care providers with which it
contracts do not violate any federal or state health care laws and
regulations in such jurisdictions in which the Company and any of its
subsidiaries are doing business that are applicable to such business
and such relationships, including those laws governing insurance risk,
risk allocation, corporate practice of medicine, professional
corporations, fee splitting, client confidentiality fraud and abuse
and self-referral.
(xv) To such counsel's best knowledge, the Company and its
subsidiaries possess all certificates, authorizations, licenses and
permits issued by the appropriate federal, state or foreign regulatory
authorities necessary to conduct their respective businesses, except
for the certificates, authorizations, licenses and permits the failure
to so possess would not singly or in the aggregate have a Material
Adverse Effect and, to such counsel's best knowledge neither the
Company nor any such subsidiary has received any notice of proceedings
relating to the revocation or modification of any such certificate,
authorization, license or permit which, singly or in the aggregate, if
the subject or an unfavorable decision, ruling or finding, would
result in a Material Adverse Effect, except as described in or
contemplated by the Prospectus.
(g) The Underwriters shall have received on the Closing Date
opinions of Greenberg, Traurig, Hoffman, Lipoff, Rosen & Quentel, P.A. and
Hutchins, Wheeler & Dittmar, each counsel for certain Selling Stockholders,
dated the Closing Date, to the effect that:
(i) Each Selling Stockholder has full right, power and
authority to enter into this Agreement, the Custody Agreement and the
Power of Attorney. Each Selling Stockholder has duly authorized,
executed and delivered this Agreement. The Custody Agreement and the
Power of Attorney have each been duly executed and delivered on behalf
of each Selling Stockholder and constitute the valid and binding
agreement of such Selling Stockholder enforceable against such Selling
Stockholder in accordance with their respective terms subject, as to
enforcement, to applicable bankruptcy, insolvency, reorganization and
moratorium laws and other laws affecting the enforcement of creditors'
rights generally and to equitable principles.
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<PAGE> 25
(ii) Each Selling Stockholder has full right, power and
authority to sell, transfer, assign and deliver the Shares being sold
by such Selling Stockholder hereunder. Immediately prior to the
delivery of the Shares being sold by such Selling Stockholder, such
Selling Stockholder was the sole registered owner of such Shares and,
upon registration of the Share in the names of the Underwriters or
their nominees, assuming that such purchasers purchased such Shares in
good faith without notice of any adverse claims as defined in Section
8-302 of the Uniform Commercial Code, such purchasers will have
acquired all the rights of such Selling Stockholder in such Shares
free of any adverse claim, any lien in favor of the Company or
restrictions on transfer imposed by the Company.
(iii) The performance of this Agreement and the Custody
Agreement and the Power of Attorney and the consummation of the
transactions herein and therein contemplated will not, with the giving
of notice or passage of time or both, result in a breach or violation
of any of the terms or provisions of or constitute a default under any
statute, rule or regulation applicable to any Selling Stockholder, or,
to the best of such counsel's knowledge, any indenture, mortgage, deed
of trust, note agreement or other agreement or instrument to which any
Selling Stockholder is a party or by which it is bound, or any
judgment, order or decree known to such counsel after due inquiry of
any court or governmental agency or body having jurisdiction over any
Selling Stockholder or any of their properties, or, if any Selling
Stockholder is a corporation, the certificate or articles of
incorporation and bylaws of such Selling Stockholder, or, if any
Selling Stockholder is a partnership, the partnership agreement of
such Selling Stockholder.
(iv) No consent, approval, authorization or order of any
court or governmental agency or body is required for the consummation
by the Selling Stockholders covered by such opinion of the
transactions contemplated by this Agreement, except such as may be
required under the Act or as may be required under the securities or
Blue Sky laws of any jurisdiction in connection with the purchase and
distribution of the Shares by the Underwriters.
(v) Any transfer taxes which are required to be paid in
connection with the sale and delivery of the Shares to the
Underwriters hereunder have been paid and all laws imposing such taxes
have been fully complied with.
The opinions of Greenberg, Traurig, Hoffman, Lipoff, Rosen & Quentel,
P.A. and Hutchins, Wheeler & Dittmar described in paragraphs (f) and (g) above
shall be rendered to the Underwriters at the request of the Company or one or
more of the Selling Stockholders, as the case may be, and shall so state
therein.
(h) You shall have received on the Closing Date an opinion, dated
the Closing Date, of Alston & Bird LLP, counsel for the Underwriters, as to the
matters referred to in the last clause of Section 9(f)(ii), the first clause of
Section 9(f)(iv), all of Section 9(f)(viii)
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<PAGE> 26
and all of Section 9(f)(xi). Such opinion shall also be to the effect that the
statements under the captions "Description of Capital Stock" and "Underwriting"
in the Prospectus, insofar as such statements constitute a summary of the legal
matters, documents or proceedings referred to therein, fairly present the
information called for with respect to such legal matters, documents and
proceedings.
In giving such opinions with respect to the matters covered by
Sections 9(f)(viii) and 9(f)(xi), counsel for the Company and the Selling
Stockholders and counsel for the Underwriters may state that their opinion and
belief are based upon their participation in the preparation of the
Registration Statement and Prospectus and any amendments or supplements thereto
and review and discussion of the contents thereof, but are without independent
check or verification except as specified.
(i) You shall have received, on each of the date hereof and the
Closing Date, a letter dated the date hereof or the Closing Date, as the case
may be, in form and substance satisfactory to you, from Deloitte & Touche LLP,
independent public accountants, containing the information and statements of
the type ordinarily included in accountants' "comfort letters" to Underwriters
with respect to the financial statements and certain financial information
contained in the Registration Statement and the Prospectus.
(j) The Company shall have delivered to you the agreements
specified in Section 2 hereof which agreements shall be in full force and
effect on the Closing Date.
(k) The Shares shall have been duly listed for quotation on the
Nasdaq National Market.
(l) The Company and the Selling Stockholders shall not have failed
on or prior to the Closing Date to perform or comply with any of the agreements
herein contained and required to be performed or complied with by the Company
or the Selling Stockholders, as the case may be, on or prior to the Closing
Date.
(m) You shall have received on the Closing Date, a certificate of
each Selling Stockholder who is not a U.S. Person (as defined under applicable
U.S. federal tax legislation) to the effect that such Selling Stockholder is
not a U.S. Person, which certificate may be in the form of a properly completed
and executed United States Treasury Department Form W-8 (or other applicable
form or statement specified by Treasury Department regulations in lieu
thereof).
The several obligations of the Underwriters to purchase any Additional
Shares hereunder are subject to the delivery to you on the applicable Option
Closing Date of such documents as you may reasonably request with respect to
the good standing of the Company, the due authorization and issuance of such
Additional Shares, title to the Additional Shares, the Registration Statement
and Prospectus and other matters related to the Company or the purchase of such
Additional Shares.
- 26 -
<PAGE> 27
SECTION 10. Effectiveness of Agreement and Termination. This
Agreement shall become effective upon the execution and delivery of this
Agreement by the parties hereto.
This Agreement may be terminated at any time on or prior to the
Closing Date by you by written notice to the Sellers if any of the following
has occurred: (i) any outbreak or escalation of hostilities or other national
or international calamity or crisis or change in economic conditions or in the
financial markets of the United States or elsewhere that, in your judgment, is
material and adverse and, in your judgment, makes it impracticable to market
the Shares on the terms and in the manner contemplated in the Prospectus, (ii)
the suspension or material limitation of trading in securities or other
instruments on the New York Stock Exchange, the American Stock Exchange, the
Chicago Board of Options Exchange, the Chicago Mercantile Exchange, the Chicago
Board of Trade or the Nasdaq National Market or limitation on prices for
securities or other instruments on any such exchange or the Nasdaq National
Market, (iii) the suspension of trading of any securities of the Company on any
exchange or in the over-the-counter market, (iv) the enactment, publication,
decree or other promulgation of any federal or state statute, regulation, rule
or order of any court or other governmental authority which in your opinion
materially and adversely affects, or will materially and adversely affect, the
business, prospects, financial condition or results of operations of the
Company and its subsidiaries, taken as a whole, (v) the declaration of a
banking moratorium by either federal or New York State authorities or (vi) the
taking of any action by any federal, state or local government or agency in
respect of its monetary or fiscal affairs which in your opinion has a material
adverse effect on the financial markets in the United States.
If on the Closing Date or on an Option Closing Date, as the case may
be, any one or more of the Underwriters shall fail or refuse to purchase the
Firm Shares or Additional Shares, as the case may be, which it or they have
agreed to purchase hereunder on such date and the aggregate number of Firm
Shares or Additional Shares, as the case may be, which such defaulting
Underwriter or Underwriters, as the case may be, agreed but failed or refused
to purchase is not more than one-tenth of the total number of Shares to be
purchased on such date by all Underwriters, each non-defaulting Underwriter
shall be obligated severally, in the proportion which the number of Firm Shares
set forth opposite its name in Schedule I bears to the total number of Firm
Shares which all the non-defaulting Underwriters, as the case may be, have
agreed to purchase, or in such other proportion as you may specify, to purchase
the Firm Shares or Additional Shares, as the case may be, which such defaulting
Underwriter or Underwriters, as the case may be, agreed but failed or refused
to purchase on such date; provided that in no event shall the number of Firm
Shares or Additional Shares, as the case may be, which any Underwriter has
agreed to purchase pursuant to Section 2 hereof be increased pursuant to this
Section 10 by an amount in excess of one-ninth of such number of Firm Shares or
Additional Shares, as the case may be, without the written consent of such
Underwriter. If on the Closing Date any Underwriter or Underwriters shall fail
or refuse to purchase Firm Shares and the aggregate number of Firm Shares with
respect to which such default occurs is more than one-tenth of the aggregate
number of Firm Shares to be purchased by all Underwriters and arrangements
satisfactory to you, the Company and the Selling Stockholders for purchase of
such Firm Shares are not made within 48 hours after such
- 27 -
<PAGE> 28
default, this Agreement will terminate without liability on the part of any
non-defaulting Underwriter, the Company or the Selling Stockholders. In any
such case which does not result in termination of this Agreement, either you or
the Sellers shall have the right to postpone the Closing Date, but in no event
for longer than seven days, in order that the required changes, if any, in the
Registration Statement and the Prospectus or any other documents or
arrangements may be effected. If, on an Option Closing Date, any Underwriter or
Underwriters shall fail or refuse to purchase Additional Shares and the
aggregate number of Additional Shares with respect to which such default occurs
is more than one-tenth of the aggregate number of Additional Shares to be
purchased on such date, the non-defaulting Underwriters shall have the option
to (i) terminate their obligation hereunder to purchase such Additional Shares
or (ii) purchase not less than the number of Additional Shares that such
non-defaulting Underwriters would have been obligated to purchase on such date
in the absence of such default. Any action taken under this paragraph shall
not relieve any defaulting Underwriter from liability in respect of any default
of any such Underwriter under this Agreement.
SECTION 11. Agreements of the Selling Stockholders. Each Selling
Stockholder agrees with you and the Company:
(a) To pay or to cause to be paid all transfer taxes payable in
connection with the transfer of the Shares to be sold by such Selling
Stockholder to the Underwriters.
(b) To do and perform all things to be done and performed by such
Selling Stockholder under this Agreement prior to the Closing Date and to
satisfy all conditions precedent to the delivery of the Shares to be sold by
such Selling Stockholder pursuant to this Agreement.
SECTION 12. Miscellaneous. Notices given pursuant to any provision
of this Agreement shall be addressed as follows: (i) if to the Company, to
AmeriPath, Inc., 7289 Garden Road, Suite 200, Riviera Beach, Florida 33404,
Attention: President, (ii) if to the Selling Stockholders, to James C. New c/o
AmeriPath, Inc., 7289 Garden Road, Suite 200, Riviera Beach, Florida 33404,
with a copy to Summit Partners, 600 Atlantic Avenue, Suite 2800, Boston,
Massachusetts 02210-2227, Attention: Thomas S. Roberts, and (iii) if to any
Underwriter or to you, to you c/o Donaldson, Lufkin & Jenrette Securities
Corporation, 277 Park Avenue, New York, New York 10172, Attention: Syndicate
Department, or in any case to such other address as the person to be notified
may have requested in writing.
The respective indemnities, contribution agreements, representations,
warranties and other statements of the Company, the Selling Stockholders and
the several Underwriters set forth in or made pursuant to this Agreement shall
remain operative and in full force and effect, and will survive delivery of and
payment for the Shares, regardless of (i) any investigation, or statement as to
the results thereof, made by or on behalf of any Underwriter, the officers or
directors of any Underwriter, any person controlling any Underwriter, the
Company, the officers or directors of the Company, any person controlling the
Company, any Selling Stockholder or any person controlling such Selling
- 28 -
<PAGE> 29
Stockholder, (ii) acceptance of the Shares and payment for them hereunder and
(iii) termination of this Agreement.
If for any reason the Shares are not delivered by or on behalf of any
Seller as provided herein (other than as a result of any termination of this
Agreement pursuant to Section 10), the Sellers agree, jointly and severally, to
reimburse the several Underwriters for all out-of-pocket expenses (including
the fees and disbursements of counsel) incurred by them. Notwithstanding any
termination of this Agreement, the Company shall be liable for all expenses
which it has agreed to pay pursuant to Section 5(i) hereof. The Sellers also
agree, jointly and severally, to reimburse the several Underwriters, their
directors and officers and any persons controlling any of the Underwriters for
any and all fees and expenses (including, without limitation, the fees
disbursements of counsel) incurred by them in connection with enforcing their
rights hereunder (including, without limitation, pursuant to Section 8 hereof).
Except as otherwise provided, this Agreement has been and is made
solely for the benefit of and shall be binding upon the Company, the Selling
Stockholders, the Underwriters, the Underwriters' directors and officers, any
controlling persons referred to herein, the Company's directors and the
Company's officers who sign the Registration Statement and their respective
successors and assigns, all as and to the extent provided in this Agreement,
and no other person shall acquire or have any right under or by virtue of this
Agreement. The term successors and assigns" shall not include a purchaser of
any of the Shares from any of the several Underwriters merely because of such
purchase.
This Agreement shall be governed and construed in accordance with the
laws of the State of New York.
This Agreement may be signed in various counterparts which together
shall constitute one and the same instrument.
- 29 -
<PAGE> 30
Please confirm that the foregoing correctly sets forth the agreement
among the Company, the Selling Stockholders and the several Underwriters.
Very truly yours,
AMERIPATH, INC.
By:
--------------------------------------
Title:
THE SELLING STOCKHOLDERS
NAMED IN SCHEDULE II HERETO,
ACTING SEVERALLY
By:
--------------------------------------
Attorney-in-fact
DONALDSON, LUFKIN & JENRETTE
SECURITIES CORPORATION
MORGAN STANLEY & CO.
INCORPORATED
SMITH BARNEY INC.
PIPER JAFFRAY, INC.
Acting severally on behalf of themselves
and the several Underwriters named in
Schedule I hereto
By: DONALDSON, LUFKIN &
JENRETTE SECURITIES
CORPORATION
By:
--------------------------------------
Title:
<PAGE> 31
SCHEDULE I
<TABLE>
<CAPTION>
Number of Firm
Underwriters Shares to be Purchased
------------ ----------------------
<S> <C>
Donaldson, Lufkin & Jenrette Securities Corporation
Morgan Stanley & Co. Incorporated
Smith Barney Inc.
Piper Jaffray Inc.
Total 5,000,000
=========
</TABLE>
<PAGE> 32
SCHEDULE II
Selling Stockholders
<TABLE>
<CAPTION>
Number of Additional
Name Shares Being Sold
---- ---------------------
<S> <C> <C>
Summit Ventures III, L.P.
Summit Investors II, L.P.
Summit Subordinated Debt Fund , L.P.
Schroder Incorporated
Schroder Ventures, L.P.
Schroder Ventures U.S. Trust
Alexander P. Kowalczyk, M.D. 31,590
Evangelos G. Poulos, M.D. 31,590
Michael J. Demaray, M.D. 31,590
James C. New 50,000
Robert P. Wynn 20,000
-------
Total 539,770
=======
</TABLE>
<PAGE> 33
ANNEX I
All stockholders of the Company.
<PAGE> 1
EXHIBIT 5.1
October , 1997
AmeriPath, Inc.
7289 Garden Road, Suite 200
Riviera Beach, FL 33404
Re: Public Offering of Common Stock
-------------------------------
Gentlemen:
We have acted as special counsel to AmeriPath, Inc., a Delaware corporation
(the "Company"), in connection with its filing with the Securities and Exchange
Commission of a Registration Statement on Form S-1 (File No. 333-34265, the
"Registration Statement") under the Securities Act of 1933, as amended (the
"Act"). The Registration Statement relates to the sale by the Company and
certain selling stockholders of 5,000,000 and 750,000 shares, respectively, of
the Company's Common Stock, par value $.01 per share (collectively, the
"Shares").
In connection with our rendering of this opinion, we have examined and
relied upon the original or a copy, certified to our satisfaction, of: (i) the
Amended and Restated Certificate of Incorporation (the "Certificate of
Incorporation"), the Certificate of Amendment to the Certificate of
Incorporation (the "Amendment") and the Amended and Restated Bylaws of the
Company; (ii) resolutions of the Board of Directors of the Company authorizing
the offering and the issuance of the Shares and related matters; (iii) the
Registration Statement and exhibits thereto; and (iv) such other documents and
instruments as we have deemed necessary for the expression of opinions
contained herein.
We are of the opinion that the Shares, when issued and delivered in
accordance with the Company's Certificate of Incorporation (as amended by the
amendment, the "Amended Certificate") and the Underwriting Agreement filed as
Exhibit 1.1 to the Registration Statement, will be duly and validly authorized
and issued and will be fully paid and nonassessable.
The opinion expressed above is based upon and subject to our assumption
that the Amended Certificate, which has been approved by the Company's Board of
Directors and Stockholders prior to the date hereof, has been filed with and
accepted by the Secretary of State of Delaware.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the use of our name under the caption
"Business--Government Regulation" and "Legal Matters" in the Prospectus forming
a part of the Registration Statement.
Sincerely,
GREENBERG, TRAURIG, HOFFMAN,
LIPOFF, ROSEN & QUENTEL, P.A.
<PAGE> 1
Exhibit 21.1
SUBSIDIARIES
<TABLE>
<CAPTION>
DATE OF INCORPORATION JURISDICTION
--------------------- ------------
<S> <C> <C>
American Laboratory Associates, Inc. 12/22/93 Delaware
AmeriPath Florida, Inc. f/k/a/ D & P Pathology, Inc. 2/13/96 Florida
d/b/a AmeriPath Florida
American Laboratory Associates
Derrick and Associates Pathology
D&P Pathology
Florida Pathology Associates
Gulf Coast Pathology Associates
Volusia Pathology Group
Dr. Seidenstein, Levine and Associates
AmeriPath Alabama, Inc. f/k/a SkinPath, P.C. 1/05/95 Alabama
d/b/a SkinPath
AmeriPath Kentucky, Inc. f/k/a Technical Pathology Services, Inc. 2/02/88 Kentucky
d/b/a Pathology Associates
AmeriPath Ohio, Inc. 9/26/96 Delaware
AmeriPath Cincinnati, Inc. f/k/a/ David R. Barron, M.D., Inc.* 11/01/68 Ohio
d/b/a Richfield Laboratory of Dermatopathology
AmeriPath Cleveland, Inc. f/k/a Beno Michel, M.D., Inc.* 4/15/76 Ohio
d/b/a Cutaneous Pathology & Immunofluorescence Laboratory CPI
AmeriPath Texas, Inc. f/k/a Freeman-Cockerell Laboratories, Inc. 3/02/94 Texas
d/b/a Freeman-Cockerell Laboratories
AmeriPath Mississippi, Inc. f/k/a Sturgis, Henderson & Proctor 12/30/70 Mississippi
Pathology Laboratory, P.A.
d/b/a Sturgis, Henderson & Proctor Pathology Laboratory
AmeriPath Indiana, Inc. f/k/a Colab, Inc. 11/28/94 Indiana
AmeriPath 5.01(a) Corporation** 2/07/97 Texas
d/b/a Freeman-Cockerell Laboratories
DFW 5.01(a) Corporation** 7/21/97 Texas
d/b/a UniPath
Plano Pathology Associates
Dallas Pathology Associates
Arlington-Mansfield Pathology Associates
AmeriPath Dallas
AmeriPath Indianapolis, LLC* 08/28/97 Indiana
d/b/a Colab, Inc.
</TABLE>
- - ------------------
*The record holder is a trust of which AmeriPath, Inc. is the grantor and the
sole beneficiary.
**Non-Profit Corporation of which AmeriPath, Inc. is the sole member.
