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As filed with the Securities and Exchange Commission on November 13, 1998
Registration No.
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
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AMERIPATH, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
DELAWARE 65-0642485
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NO.)
7289 GARDEN ROAD, SUITE 200, RIVIERA BEACH, FLORIDA 33404
(Address of Principal Executive Offices, Zip Code)
AMERISAVE 401(K) PLAN
(Full title of the plan)
JAMES C. NEW
PRESIDENT AND CHIEF EXECUTIVE OFFICER
AMERIPATH, INC.
7289 GARDEN ROAD, SUITE 200
RIVIERA BEACH, FLORIDA 33404
(Name, address, and telephone number,
including area code, of agent for service)
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BEATRIZ LLORENS KOLTIS, ESQ.
JOSEPH I. EMAS, ESQ.
STEEL HECTOR & DAVIS LLP
200 SOUTH BISCAYNE BOULEVARD
SUITE 4000
MIAMI, FLORIDA 33131-2398
(305) 577-7000
APPROXIMATE DATE OF PROPOSED COMMENCEMENT OF SALES PURSUANT TO THE PLAN: From
time to time after the effective date of this Registration Statement.
CALCULATION OF REGISTRATION FEE
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<CAPTION>
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AMOUNT TO PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
TITLE OF SECURITIES BE OFFERING PRICE PER UNIT AGGREGATE OFFERING PRICE REGISTRATION
TO BE REGISTERED REGISTERED (1) (1) FEE
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<S> <C> <C> <C> <C>
COMMON STOCK, $. 01 PAR
VALUE 5,000,000(2)(3) $13.41 $67,050,000 $18,639.90
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(1) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(h)(1) under the Securities Act of 1933, as
amended.
(2) This Registration Statement also relates to such indeterminate number
of additional shares of Common Stock of the Registrant as may be
issuable as a result of stock splits, stock dividends,
recapitalizations, mergers, reorganizations, combinations or exchanges
of shares or other similar events.
(3) In addition, pursuant to Rule 416(c) under the Securities Act of 1933,
as amended, this Registration Statement also covers an indeterminate
amount of interests to be offered or sold pursuant to the AmeriSave
401(k) Plan described herein.
THIS REGISTRATION STATEMENT SHALL BECOME EFFECTIVE UPON FILING WITH THE
SECURITIES AND EXCHANGE COMMISSION (THE "COMMISSION") IN ACCORDANCE WITH
SECTION 8(A) OF THE SECURITIES ACT OF 1933, AS AMENDED, AND RULES 456 AND 462
PROMULGATED THEREUNDER.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
ITEM 1. PLAN INFORMATION.
Not required to be filed with the Commission.
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION.
Not required to be filed with the Commission.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The Registrant hereby incorporates by reference into this Registration
Statement the following documents:
(i) The Registrant's Annual Report on Form 10-K (Commission File
No 000-22313) for the fiscal year ended December 31, 1997.
(ii) The Registrant's Quarterly Reports on Form 10-Q (Commission
File No 000-22313) for the quarterly periods ended March 31,
1998, June 30, 1998 and September 30, 1998.
(iii) The Registrant's Current Reports on Form 8-K filed on February
13, 1998 and April 28, 1998.
(iv) The Registrant's Proxy Statement dated May 8, 1998 and filed
on April 15, 1998 (Commission File No. 000-22313).
(v) The description of the Registrant's Common Stock which is
contained in its Registration Statement on Form 8-A, dated
September 8, 1997, including all amendments and reports filed
for the purpose of updating such description.
(vi) All other reports filed by the Registrant pursuant to Section
13(a) or 15(d) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act") since the end of the fiscal year
covered by the report referred to in (1) above.
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All documents subsequently filed by the Registrant pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a
post-effective amendment which indicates that all securities offered hereby have
been sold or which deregisters all securities then remaining unsold, shall be
deemed to be incorporated herein by reference and to be a part hereof from the
date of filing of such documents.
Any statement contained in this Registration Statement, or in a
document incorporated or deemed to be incorporated by reference herein, shall be
deemed to be modified or superseded for purposes of this Registration Statement
to the extent that a statement contained herein or in any other subsequently
filed document which is deemed to be incorporated by reference herein modifies
or supersedes such statement. Any such statement so modified or superseded shall
not be deemed, except as so modified or superseded, to constitute a part of this
Registration Statement.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
None.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Registrant's Amended and Restated Certificate of Incorporation
provide that each person who was or is made a party to, or is involved in, any
action, suit or proceeding by reason of the fact that he or she was a director
or officer of the Registrant (or was serving at the request of the Registrant as
a director, officer, employee or agent for another entity) will be indemnified
and held harmless by the Registrant, to the full extent authorized by the
Delaware General Corporation Law.
Under Section 145 of the Delaware General Corporation Law, a
corporation may indemnify a director, officer, employee or agent of the
corporation against expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred by him or her if he
or she acted in good faith and in a manner he or she reasonably believed to be
in or not opposed to the best interests of the corporation and, with respect to
any criminal action or proceeding, had no reasonable cause to believe his or her
conduct was unlawful. In the case of an action brought by or in the right of a
corporation, the corporation may indemnify a director, officer, employee or
agent of the corporation against expenses (including attorneys' fees) actually
and reasonably incurred by him or her if he or she acted in good faith and in a
manner he or she reasonably believed to be in the best interests of the
corporation, except that no indemnification shall be made in respect of any
claim, issue or matter as to which such person shall have been adjudged to be
liable to the corporation unless a court finds that, in view of all the
circumstances of the case, such person is fairly and reasonably entitled to
indemnity for such expenses as the court shall deem proper.
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The Registrant's Amended and Restated Certificate of Incorporation
provides that, to the fullest extent permitted by the Delaware General
Corporation Law as the same exists or may hereafter be amended, a director of
the Registrant shall not be liable to the Registrant or its stockholders for
monetary damages for breach of fiduciary duty as a director. The Delaware
General Corporation Law permits Delaware corporations to include in their
certificates of incorporation a provision eliminating or limiting director
liability for monetary damages arising from breaches of their fiduciary duty.
The only limitations imposed under the statute are that the provision may not
eliminate or limit a director's liability (i) for breaches of the director's
duty of loyalty to the corporation or its stockholders, (ii) for acts or
omissions not in good faith or involving intentional misconduct or known
violations of law, (iii) for the payment of unlawful dividends or unlawful stock
purchases or redemptions, or (iv) for transactions in which the director
received an improper personal benefit.
At present, there is no pending litigation or other proceeding
involving a director or officer of the Registrant as to which indemnification is
being sought, nor is the Registrant aware of any threatened litigation that may
result in claims for indemnification by any officer or director.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
See "Exhibit Index" on page 8 below.
ITEM 9. UNDERTAKINGS.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section
10(a)(3) of the Securities Act of 1933, as amended (the
"Securities Act");
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the Registration Statement
(or the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental
change in the information set forth in this Registration
Statement; and
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(iii) To include any material information with
respect to the plan of distribution not previously disclosed
in the Registration Statement or any material change to such
information in the Registration Statement;
provided, however, that paragraphs (i) and (ii) do not apply if the information
required to be included in a post-effective amendment is contained in periodic
reports filed with or furnished to the Commission by the Registrant pursuant to
Section 13 or Section 15(d) of the Exchange Act that are incorporated by
reference in the Registration Statement.
(2) That, for the purpose of determining any liability under
the Securities Act, each such post-effective amendment 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.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in the Registration Statement 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.
(c) 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 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.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and 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 this 13th day of
November, 1998.
AMERIPATH, INC.
By:/s/ JAMES C. NEW
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James C. New
President and Chief Executive Officer
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POWER OF ATTORNEY
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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 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, as amended,
this Registration Statement has been signed by the following persons in the
capacities indicated on November 13, 1998.
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SIGNATURE TITLE DATE
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<S> <C> <C>
/s/ JAMES C. NEW President, Chief Executive Officer and November 13, 1998
----------------------------- Director (principal executive officer)
James C. New
/s/ ALAN LEVIN, M.D. Chief Operating Officer and Director November 13, 1998
-----------------------------
Alan Levin, M.D.
/s/ ROBERT P. WYNN Executive Vice President and Chief November 13, 1998
----------------------------- Financial Officer (principal financial
Robert P. Wynn officer and principal accounting officer)
/s/ THOMAS S. ROBERTS Chairman of the Board and Director November 13, 1998
-----------------------------
Thomas S. Roberts
/s/ TIMOTHY KILPATRICK, M.D. Director November 13, 1998
-----------------------------
Timothy Kilpatrick, M.D.
/s/ C. ARNOLD RENSCHLER, M.D. Director November 13, 1998
-----------------------------
C. Arnold Renschler, M.D.
/s/ E. ROE STAMPS, IV Director November 13, 1998
-----------------------------
E. Roe Stamps, IV
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EXHIBIT INDEX
EXHIBIT NUMBER DESCRIPTION
4.1 AmeriPath's Amended and Restated Bylaws**
4.2 AmeriPath's Amended and Restated Certificate of
Incorporation**
4.3 AmeriPath's Certificate of Amendment to the Amended
and Restated Certificate of Incorporation**
4.4 Form of Stock Certificate**
5 Opinion of Steel Hector & Davis, LLP and consent of
counsel
23.1 Consent of Steel Hector & Davis, LLP, is contained in
its opinion included as Exhibit 5 hereof
23.2 Consent of Deloitte & Touche LLP
24 Power of Attorney is included in the Signature
Section of this Registration Statement
** Incorporated by reference to the exhibit referenced and filed with the
AmeriPath Form S-1 (File No. 333-34265), effective October 21, 1997,
filed September 8, 1997.
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EXHIBIT 5
STEEL HECTOR & DAVIS, LLP
November 13, 1998
AmeriPath, Inc.
7289 Garden Road, Suite 200
Riviera Beach, Florida 33404
Ladies and Gentlemen:
We have acted as counsel to AmeriPath, Inc., a Delaware corporation (the
"Company"), and have reviewed the Company's Registration Statement on Form S-8
covering 5,000,000 shares of the Company's common stock, $.01 par value (the
"Shares") granted pursuant to the AmeriSave 401(k) Plan maintained by the
Company (the "Plan").
In connection therewith, we have examined the Company's Certificate of
Incorporation and the Company's Bylaws, each as amended to the date hereof;
resolutions adopted by the Board of Directors of the Company providing, among
other things, for the purchase of the Shares and the filing of the Registration
Statement; and such other corporate documents and records, certificates of
public officials and questions of law as we deemed necessary or appropriate for
the purposes of this opinion. We have also reviewed the relevant statutory
provisions of the Delaware General Corporation Law, and such other legal
authority in Delaware as we have deemed relevant.
Based upon and subject to the foregoing and the other qualifications,
limitations and assumptions contained herein, we are of the opinion that the
Shares, when issued and delivered pursuant to the terms of the Plan, will be
validly issued, fully paid, and non-assessable.
We hereby consent to the filing of this opinion as Exhibit 5 to the Registration
Statement.
Very truly yours,
STEEL HECTOR & DAVIS, LLP
JIE:MAL:BLK
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EXHIBIT 23.2
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement of
AmeriPath, Inc. on Form S-8 of our report dated March 26, 1998 appearing in the
Annual Report on Form 10-K of AmeriPath, Inc. for the year ended December 31,
1997.
DELOITTE & TOUCHE LLP
Miami, Florida
November 13, 1998
