3,775,000
Laboratory Corporation of America Holdings
Common Stock, par value $.10 per share
UNDERWRITING AGREEMENT
October 13, 2000
CREDIT SUISSE FIRST BOSTON CORPORATION
As Representative of the Several Underwriters,
Eleven Madison Avenue,
New York, NY 10010-3629
Dear Sirs:
1. Introductory. Laboratory Corporation of America Holdings, a Delaware
corporation (the "Company") has registered 4,953,182 shares of its common
stock, par value $.10 per share ("Common Stock") under the registration
statement referred to in Section 2(i) (the "Registered Securities") for sale
from time to time by certain stockholders of the Company. The stockholders
listed in Schedule A hereto ("Selling Stockholders") propose to sell 3,775,000
outstanding shares ("Firm Securities") of the Common Stock, and Roche Holdings,
Inc., one of the Selling Stockholders ("Roche"), proposes to sell to the
Underwriters, at the option of the Underwriters, an aggregate of not more than
375,000 additional outstanding shares ("Optional Securities") of the Common
Stock as set forth below. The Firm Securities and the Optional Securities are
herein collectively called the "Offered Securities". The Selling Stockholders
hereby agree with the Company and with the several underwriters named in
Schedule B hereto ("Underwriters") as follows:
2. Representations and Warranties of the Company and the Selling
Stockholders. (a) The Company represents and warrants to, and agrees with, the
several Underwriters that:
(i) A registration statement (No. 333-46776), including a prospectus,
relating to the Registered Securities, has been filed with the Securities
and Exchange Commission ("Commission") and has been declared effective
under the Securities Act of 1933 ("Act"). Such registration statement as
amended as of the date of this Agreement is hereinafter referred to as the
"Registration Statement". The prospectus included in such Registration
Statement, as supplemented as contemplated by Section 4 to reflect the
terms of offering of the Offered Securities, as first filed with the
Commission pursuant to and in accordance with Rule 424(b) ("Rule 424(b)")
under the Act, including all material incorporated by reference in such
prospectus, is hereinafter referred to as the "Prospectus". No document
has been or will be prepared or distributed in reliance on Rule 434 under
the Act.
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(ii) On the effective date of the registration statement relating to
the Registered Securities, such registration statement conformed in all
respects to the requirements of the Act and the rules and regulations of
the Commission ("Rules and Regulations") and did not include any 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 on the date of this Agreement, the Registration Statement
and the Prospectus conform, in all respects to the requirements of the Act
and the Rules and Regulations, and neither of such documents includes, or
will include, any untrue statement of a material fact or omits, or will
omit, to state any material fact required to be stated therein or
necessary to make the statements therein not misleading except that the
foregoing does not apply to statements in or omissions from a Registration
Statement or the Prospectus based upon written information furnished to
the Company by any Underwriter through the Representative specifically for
use therein, it being understood and agreed that the only such information
is that described as such in Section 7(c) hereof.
(iii) The Company has been duly incorporated and is an existing
corporation in good standing under the laws of the State of Delaware, with
power and authority (corporate and other) to own its properties and
conduct its business as described in the Prospectus; and the Company is
duly qualified to do business as a foreign corporation in good standing in
all other jurisdictions in which its ownership or lease of property or the
conduct of its business requires such qualification, except to the extent
that the failure to be so qualified or to be in good standing, considering
all such cases in the aggregate, would not be reasonably likely to have a
material adverse effect on the business, properties, financial position or
result of operations of the Company and its subsidiaries taken as a whole
("Material Adverse Effect").
(iv) Each subsidiary of the Company has been duly incorporated and is
an existing corporation in good standing under the laws of the
jurisdiction of its incorporation, with power and authority (corporate and
other) to own its properties and conduct its business as described in the
Prospectus; and each subsidiary of the Company is duly qualified to do
business as a foreign corporation in good standing in all other
jurisdictions in which its ownership or lease of property or the conduct
of its business requires such qualification, except to the extent that the
failure to be so qualified or to be in good standing would not be
reasonably likely to have a Material Adverse Effect; all of the issued and
outstanding capital stock of each subsidiary of the Company has been duly
authorized and validly issued and is fully paid and nonassessable; and the
capital stock of each subsidiary owned by the Company, directly or through
subsidiaries, is owned free from liens, encumbrances and defects.
(v) The Offered Securities and all other outstanding shares of
capital stock of the Company have been duly authorized and validly issued,
fully paid and nonassessable and conform to the description thereof
contained in the Prospectus; and the stockholders of the Company have no
preemptive rights with respect to the Securities.
(vi) Except as disclosed in the Prospectus, there are no contracts,
agreements or understandings between the Company and any person that would
give rise to a valid claim against the Company or any Underwriter for a
brokerage commission, finder's fee or other like payment.
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(vii) Except for the Stockholder Agreement dated as of April 28, 1995
(the "Stockholder Agreement") among the Company, Hoffmann-LaRoche Inc. and
HLR Holdings Inc., there are no contracts, agreements or understandings
between the Company and any person granting such person 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
person or to require the Company to include such securities in the
securities registered pursuant to a Registration Statement or in any
securities being registered pursuant to any other registration statement
filed by the Company under the Act.
(viii) The Securities are listed on The New York Stock Exchange.
(ix) No consent, approval, authorization, or order of, or filing
with, any governmental agency or body or any court is required to be
obtained or made by the Company for the consummation of the transactions
contemplated by this Agreement in connection with the sale of the Offered
Securities, except such as have been obtained and made under the Act and
such as may be required under state securities laws.
(x) The execution, delivery and 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 and provisions of, or
constitute a default under, any statute, any rule, regulation or order of
any governmental agency or body or any court, domestic or foreign, having
jurisdiction over the Company or any subsidiary of the Company or any of
their properties, or any agreement or instrument to which the Company or
any such subsidiary is a party or by which the Company or any such
subsidiary is bound or to which any of the properties of the Company or
any such subsidiary is subject, or the charter or by-laws of the Company
or any such subsidiary, except to the extent that such breaches,
violations or defaults, individually or in the aggregate, would not be
reasonably likely to have a Material Adverse Effect.
(xi) This Agreement has been duly authorized, executed and delivered
by the Company.
(xii) The Company and its subsidiaries possess adequate certificates,
authorities or permits issued by appropriate governmental agencies or
bodies necessary to conduct the business now operated by them and have not
received any notice of proceedings relating to the revocation or
modification of any such certificate, authority or permit that, if
determined adversely to the Company or any of its subsidiaries, would have
a Material Adverse Effect.
(xiii) No labor dispute with the employees of the Company or any
subsidiary exists or, to the knowledge of the Company, is imminent that
might have a Material Adverse Effect.
(xiv) The Company and its subsidiaries own, possess or can acquire on
reasonable terms, adequate trademarks, trade names and other rights to
inventions, know-how, patents, copyrights, confidential information and
other intellectual property (collectively, "intellectual property rights")
necessary to conduct the business now operated by them, or presently
employed by them, and have not received any notice of infringement of or
conflict with asserted rights of others with respect to any intellectual
property rights that, if determined adversely to the Company or any of its
subsidiaries, would individually or in the aggregate have a Material
Adverse Effect.
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(xv) Except as disclosed in the Prospectus, neither the Company nor
any of its subsidiaries is in violation of any statute, any rule,
regulation, decision or order of any governmental agency or body or any
court, domestic or foreign, relating to the use, disposal or release of
hazardous or toxic substances or relating to the protection or restoration
of the environment or human exposure to hazardous or toxic substances
(collectively, "environmental laws"), owns or operates any real property
contaminated with any substance that is subject to any environmental laws,
is liable for any off-site disposal or contamination pursuant to any
environmental laws, or is subject to any claim relating to any
environmental laws, which violation, contamination, liability or claim
would individually or in the aggregate have a Material Adverse Effect; and
the Company is not aware of any pending investigation which might lead to
such a claim.
(xvi) Except as disclosed in the Prospectus, there are no pending
actions, suits or proceedings against or affecting the Company, any of its
subsidiaries or any of their respective properties that, if determined
adversely to the Company or any of its subsidiaries, would individually or
in the aggregate have a Material Adverse Effect, or would materially and
adversely affect the ability of the Company to perform its obligations
under this Agreement, or which are otherwise material in the context of
the sale of the Offered Securities; and no such actions, suits or
proceedings are threatened or, to the Company's knowledge, contemplated.
(xvii) The financial statements included in each Registration
Statement and the Prospectus present fairly the financial position of the
Company and its consolidated subsidiaries as of the dates shown and their
results of operations and cash flows for the periods shown, and such
financial statements have been prepared in conformity with the generally
accepted accounting principles in the United States applied on a
consistent basis; and the schedules included in each Registration
Statement present fairly the information required to be stated therein.
(xviii) Since the respective dates as of which information is given
or incorporated by reference in the Prospectus, and except as otherwise
stated or contemplated therein, (A) there has been no material adverse
change and no development reasonably likely to result in a prospective
material adverse change in the condition (financial or otherwise),
business, properties, or results of operations of the Company and its
subsidiaries taken as a whole whether or not arising in the ordinary
course of business; (B) there have been no transactions entered into by
the Company or any of its subsidiaries which are material to the Company
and its subsidiaries, taken as a whole, other than those entered into in
the ordinary course of business or in connection with the Offered
Securities; (C) except for changes occurring in connection with the
offering of the Offered Securities or pursuant to the issuance or exercise
of options pursuant to the Company's stock option or other employee
benefit plans described in the Registration Statement, there has been no
material change in the capital stock of the Company or any of its
subsidiaries; and (D) except in connection with the offering of the
Offered Securities, there has been no dividend or distribution of any kind
declared, paid or made by the Company or any of its wholly owned
subsidiaries on any class of their capital stock.
(xix) The Company is not and, after giving effect to the offering and
sale of the Offered Securities, will not be an "investment company" as
defined in the Investment Company Act of 1940.
(b) Each Selling Stockholder severally represents and warrants to, and
agrees with, the several Underwriters that:
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(i) Such Selling Stockholder has and on each Closing Date hereinafter
mentioned will have valid and unencumbered title to the Offered Securities
to be delivered by such Selling Stockholder on such Closing Date and full
right, power and authority to enter into this Agreement and to sell,
assign, transfer and deliver the Offered Securities to be delivered by
such Selling Stockholder on such Closing Date hereunder; and upon the
delivery of and payment for the Offered Securities on each Closing Date
hereunder the several Underwriters will acquire valid and unencumbered
title to the Offered Securities to be delivered by such Selling
Stockholder on such Closing Date.
(ii) On the effective date of the Registration Statement relating to
the Registered Securities, such registration statement conformed in all
respects to the requirements of the Act and the Rules and Regulations and
did not include any 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 on the date of this Agreement, the
Registration Statement and the Prospectus conform, in all respects to the
requirements of the Act and the Rules and Regulations, and neither of such
documents includes, or will include, any untrue statement of a material
fact or omits, or will omit, to state any material fact required to be
stated therein or necessary to make the statements therein not misleading,
except that the foregoing applies only to the extent that any statements
in or omissions from a Registration Statement or the Prospectus are based
on written information furnished to the Company by such Selling
Stockholder specifically for use therein.
(iii) Except as disclosed in the Prospectus, there are no contracts,
agreements or understandings between such Selling Stockholder and any
person that would give rise to a valid claim against the Company or any
Underwriter for a brokerage commission, finder's fee or other like
payment.
3. Purchase, Sale and Delivery of Offered Securities. On the basis of the
representations, warranties and agreements herein contained, but subject to the
terms and conditions herein set forth, each Selling Stockholder agrees,
severally and not jointly, to sell to the Underwriters, and each Underwriter
agrees, severally and not jointly, to purchase from each Selling Stockholder,
at a purchase price of $115.10 per share, that number of Firm Securities
(rounded up or down, as determined by Credit Suisse First Boston Corporation
("CSFBC") in its discretion, in order to avoid fractions) obtained by
multiplying the number of Firm Securities set forth opposite the name of such
Selling Stockholder in Schedule A hereto by a fraction the numerator of which
is the number of Firm Securities set forth opposite the name of such
Underwriter in Schedule B hereto and the denominator of which is the total
number of Firm Securities.
The Selling Stockholders will deliver the Firm Securities to the
Representative for the accounts of the Underwriters against payment of the
purchase price in Federal (same day) funds by official bank check or checks or
wire transfer to an account at a bank designated by each Selling Stockholder
and acceptable to CSFBC drawn to the order of Roche in the case of 3,625,000
Firm Securities, Thomas P. MacMahon in the case of 115,000 Firm Securities and
Bradford T. Smith in the case of 35,000 Firm Securities at the office of
Skadden, Arps, Slate, Meagher & Flom LLP, at 10:00 A.M., New York time, on
October 18, 2000, or at such other time not later than seven full business days
thereafter as CSFBC and the Selling Stockholders determine, such time being
herein referred to as the "First Closing Date". For purposes of Rule 15c6-1
under the Securities Exchange Act of 1934, the First Closing Date (if later
than the otherwise applicable settlement date) shall be the settlement date for
payment of funds and delivery of securities for all the Offered Securities sold
pursuant to the offering. The certificates for the Firm Securities so to be
delivered will be in definitive form, in such denominations and registered in
such
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names as CSFBC requests and will be made available for checking and packaging
at the above office of Skadden, Arps, Slate, Meagher & Flom LLP at least 24
hours prior to the First Closing Date.
In addition, upon written notice from CSFBC given to the Company and Roche
from time to time not more than 30 days subsequent to the date of the
Prospectus, the Underwriters may purchase all or less than all of the Optional
Securities at the purchase price per Security to be paid for the Firm
Securities. Roche agrees to sell to the Underwriters the number of Optional
Securities specified in such notice and the Underwriter agrees to purchase such
Optional Securities. Such Optional Securities shall be purchased from Roche for
the account of each Underwriter in the same proportion as the number of Firm
Securities set forth opposite such Underwriter's name bears to the total number
of Firm Securities (subject to adjustment by CSFBC to eliminate fractions) and
may be purchased by the Underwriters only for the purpose of covering
over-allotments made in connection with the sale of the Firm Securities. No
Optional Securities shall be sold or delivered unless the Firm Securities
previously have been, or simultaneously are, sold and delivered. The right to
purchase the Optional Securities or any portion thereof may be exercised from
time to time and to the extent not previously exercised may be surrendered and
terminated at any time upon notice by CSFBC to the Selling Stockholders.
Each time for the delivery of and payment for the Optional Securities,
being herein referred to as an "Optional Closing Date", which may be the First
Closing Date (the First Closing Date and each Optional Closing Date, if any,
being sometimes referred to as a "Closing Date"), shall be determined by CSFBC
but shall be not later than five full business days after written notice of
election to purchase Optional Securities is given. Roche will deliver the
Optional Securities being purchased on each Optional Closing Date to the
Representative for the accounts of the several Underwriters, against payment of
the purchase price in Federal (same day) funds by official bank check or checks
or wire transfer to an account at a bank acceptable to CSFBC drawn to the order
of Roche, at the above office of Skadden, Arps, Slate, Meagher & Flom LLP. The
certificates for the Optional Securities being purchased on each Optional
Closing Date will be in definitive form, in such denominations and registered
in such names as CSFBC requests upon reasonable notice prior to such Optional
Closing Date and will be made available for checking and packaging at the above
office of Skadden, Arps, Slate Meagher & Flom LLP at a reasonable time in
advance of such Optional Closing Date.
4. Offering by Underwriters. It is understood that the several
Underwriters propose to offer the Offered Securities for sale to the public as
set forth in the Prospectus. The terms of the offering will be reflected in a
supplement to the Prospectus.
5. Certain Agreements of the Company and the Selling Stockholder(s). (a)
The Company agrees with the several Underwriters and the Selling Stockholders
that:
(i) The Company will file the Prospectus with the Commission pursuant
to and in accordance with Rule 424(b)(1)(or if applicable and consented to
by CSFBC, subparagraph (5)) not later than the second business day
following the execution and delivery of this Agreement.
(ii) The Company will advise the Underwriter promptly of any proposal
to amend or supplement the Registration Statement or the Prospectus and
will afford CSFBC a reasonable opportunity to comment on any such proposed
amendment or supplement; and the Company will also advise CSFBC promptly
of the filing of any such amendment or supplement and of the institution
by the Commission of any stop order proceedings in respect of a
Registration Statement and will use its best efforts to prevent the
issuance of any such stop order and to obtain as soon as possible its
lifting, if issued.
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(iii) If, at any time when a prospectus relating to the Offered
Securities is required to be delivered under the Act in connection with
sales by any Underwriter or dealer, any event occurs as a result of which
the Prospectus as then amended or supplemented would include an untrue
statement of a material fact or omit to state any material fact necessary
to make the statements therein, in the light of the circumstances under
which they were made, not misleading, or if it is necessary at any time to
amend the Prospectus to comply with the Act, the Company will promptly
notify CSFBC of such event and will promptly prepare and file with the
Commission, at its own expense, an amendment or supplement which will
correct such statement or omission or an amendment which will effect such
compliance. Neither CSFBC's consent to, nor the Underwriters' delivery of,
any such amendment or supplement shall constitute a waiver of any of the
conditions set forth in Section 6.
(iv) As soon as practicable, but not later than 16 months, after the
date of this Agreement, the Company will make generally available to its
securityholders an earnings statement covering a period of at least 12
months beginning after the later of (A) the effective date of the
registration statement relating to the Registered Securities, (B) the
effective date of the most recent post-effective amendment to the
Registration Statement to become effective prior to the date of this
Agreement, and (C) the date of the Company's most recent Annual Report on
Form 10-K filed with the Commission prior to the date of this Agreement,
which will satisfy the provisions of Section 11(a) of the Act including
Rule 158 thereunder.
(v) The Company will furnish to the Representative copies of each
Registration Statement (two of which will be signed and will include all
exhibits), each related preliminary prospectus, and, so long as a
prospectus relating to the Offered Securities is required to be delivered
under the Act in connection with sales by any Underwriter or dealer, the
Prospectus and all amendments and supplements to such documents, in each
case as soon as available in such quantities as CSFBC requests. The
Company will pay the expenses of printing and distributing to the
Underwriters all such documents.
(vi) The Company will arrange for the qualification of the Offered
Securities for sale under the laws of such jurisdictions as CSFBC
designates and will continue such qualifications in effect so long as
required for the distribution.
(vii) During the period of one year hereafter, the Company will
furnish to the Representative as soon as practicable after the end of each
fiscal year, a copy of its annual report to stockholders for such year;
and the Company will furnish to the Representative (i) as soon as
available, a copy of each report and any definitive proxy statement of the
Company filed with the Commission under the Securities Exchange Act of
1934 or mailed to stockholders, and (ii) from time to time, such other
information concerning the Company as CSFBC may reasonably request.
(viii) For a period of 90 days after the date of the initial public
offering of the Offered Securities, the Company will not offer, sell,
contract to sell, pledge or otherwise dispose of, directly or indirectly,
or file with the Commission a registration statement under the Act
relating to, any additional shares of its Securities or securities
convertible into or exchangeable or exercisable for any shares of its
Securities, or publicly disclose the intention to make any such offer,
sale, pledge, disposition or filing, without the prior written consent of
CSFBC, except grants of employee stock options pursuant to the terms of a
plan in effect on the date hereof, issuances of Securities pursuant to the
exercise of such options or the exercise of any other employee stock
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options outstanding on the date hereof or issuances of Securities pursuant
to the Company's dividend reinvestment plan.
(ix) The Company will pay all expenses incident to the performance of
the obligations of the Selling Stockholders and the obligations of the
Company under this Agreement, for any filing fees and other expenses
(including fees and disbursements of counsel) incurred in connection with
qualification of the Offered Securities for sale under the laws of such
jurisdictions as CSFBC designates and the printing of memoranda relating
thereto, for the filing fee incident to, and the reasonable fees and
disbursements of counsel to the Underwriters in connection with, the
review by the National Association of Securities Dealers, Inc. of the
Offered Securities, for any travel expenses of the Company's officers and
employees and any other expenses of the Company in connection with
attending or hosting meetings with prospective purchasers of the Offered
Securities, for any transfer taxes on the sale of the Offered Securities
to the Underwriters and for expenses incurred in distributing preliminary
prospectuses and the Prospectus (including any amendments and supplements
thereto) to the Underwriters.
(b) The Selling Stockholders severally agree with the several Underwriters
and the Company that:
(i) Each Selling Stockholder agrees to deliver to CSFBC, attention:
Transactions Advisory Group on or prior to the First Closing Date a
properly completed and executed United States Treasury Department Form W-9
(or other applicable form or statement specified by Treasury Department
regulations in lieu thereof).
(ii) Each Selling Stockholder agrees, for a period of 90 days after
the date of the initial public offering of the Offered Securities, not to
offer, sell, contract to sell, pledge or otherwise dispose of, directly or
indirectly, any additional shares of the Securities of the Company or
securities convertible into or exchangeable or exercisable for any shares
of Securities, or publicly disclose the intention to make any such offer,
sale, pledge or disposition, without the prior written consent of CSFBC,
provided, however the foregoing will not apply to the 375,000 shares of
common stock owned by Roche that are subject to the over-allotment option
and are not purchased by the Underwriters pursuant to such over-allotment
option.
6. Conditions of the Obligations of the Underwriters. The obligations of
the several Underwriters to purchase and pay for the Firm Securities on the
First Closing Date and the Optional Securities to be purchased on each Optional
Closing Date will be subject to the accuracy of the representations and
warranties on the part of the Company and the Selling Stockholders herein, to
the accuracy of the statements of Company officers made pursuant to the
provisions hereof, to the performance by the Company and the Selling
Stockholders of their obligations hereunder and to the following additional
conditions precedent:
(a) On or prior to the date of this Agreement, the Representative shall
have received a letter, dated the date of delivery thereof of
PricewaterhouseCoopers LLP confirming that they are independent public
accountants within the meaning of the Act and the applicable published Rules
and Regulations thereunder and stating to the effect that:
(i) in their opinion the financial statements and schedules examined
by them and included in the Registration Statements comply as to form in
all material
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respects with the applicable accounting requirements of the Act and the
related published Rules and Regulations;
(ii) they have performed the procedures specified by the American
Institute of Certified Public Accountants for a review of interim
financial information as described in Statement of Auditing Standards No.
71, Interim Financial Information, on the unaudited financial statements
included in the Registration Statements;
(iii) on the basis of the review referred to in clause (ii) above, a
reading of the latest available interim financial statements of the
Company, inquiries of officials of the Company who have responsibility for
financial and accounting matters and other specified procedures, nothing
came to their attention that caused them to believe that:
(A) the unaudited financial statements included in the
Registration Statements do not comply as to form in all material
respects with the applicable accounting requirements of the Act and
the related published Rules and Regulations or any material
modifications should be made to such unaudited financial statements
for them to be in conformity with generally accepted accounting
principles;
(B) at the date of the latest available balance sheet read by
such accountants, or at a subsequent specified date not more than
three business days prior to the date of such letter, there was any
change in the capital stock or any increase in short-term
indebtedness or long-term debt of the Company and its consolidated
subsidiaries or, at the date of the latest available balance sheet
read by such accountants, there was any decrease in consolidated net
current assets or net assets, as compared with amounts shown on the
latest balance sheet included in the Prospectus; or
(C) for the period from the closing date of the latest income
statement included in the Prospectus to the closing date of the
latest available income statement read by such accountants there were
any decreases, as compared with the corresponding period of the
previous year and with the period of corresponding length ended the
date of the latest income statement included in the Prospectus, in
consolidated net sales or net operating income in the total or per
share amounts of consolidated income before extraordinary items or
net income;
except in all cases set forth in clauses (B) and (C) above for changes,
increases or decreases which the Prospectus discloses have occurred or may
occur or which are described in such letter; and
(iv) they have compared specified dollar amounts (or percentages
derived from such dollar amounts) and other financial information
contained in the Registration Statements (in each case to the extent that
such dollar amounts, percentages and other financial information are
derived from the general accounting records of the Company and its
subsidiaries subject to the internal controls of the Company's accounting
system or are derived directly from such records by analysis or
computation) with the results obtained from inquiries, a reading of such
general accounting records and other procedures specified in such letter
and have found such dollar amounts, percentages and other financial
information to be in agreement with such results, except as otherwise
specified in such letter.
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(b) The Prospectus shall have been filed with the Commission in accordance
with the Rules and Regulations and Section 5(a) of this Agreement. No stop
order suspending the effectiveness of the Registration Statement shall have
been issued and no proceedings for that purpose shall have been instituted or,
to the knowledge of any Selling Stockholder, the Company or the Representative,
shall be contemplated by the Commission.
(c) Subsequent to the execution and delivery of this Agreement, there
shall not have occurred (i) any change, or any development or event involving a
prospective change, in the condition (financial or other), business, properties
or results of operations of the Company or its subsidiaries which, in the
judgment of a majority in interest of the Underwriters including the
Representative, is material and adverse and makes it impractical or inadvisable
to proceed with completion of the public offering or the sale of and payment
for the Offered Securities; (ii) any downgrading in the rating of any debt
securities of the Company by any "nationally recognized statistical rating
organization" (as defined for purposes of Rule 436(g) under the Act), or any
public announcement that any such organization has under surveillance or review
its rating of any debt securities of the Company (other than an announcement
with positive implications of a possible upgrading, and no implication of a
possible downgrading, of such rating); (iii) any suspension or limitation of
trading in securities generally on the New York Stock Exchange, or any setting
of minimum prices for trading on such exchange, or any suspension of trading of
any securities of the Company on any exchange or in the over-the-counter
market; (iv) any banking moratorium declared by U.S. Federal or New York
authorities; or (v) any outbreak or escalation of major hostilities in which
the United States is involved, any declaration of war by Congress or any other
substantial national or international calamity or emergency if, in the judgment
of a majority in interest of the Underwriters including the Representative, the
effect of any such outbreak, escalation, declaration, calamity or emergency
makes it impractical or inadvisable to proceed with completion of the public
offering or the sale of and payment for the Offered Securities.
(d) The Representative shall have received an opinion, dated such Closing
Date, of Bradford T. Smith, Executive Vice President, General Counsel,
Corporate Compliance Officer and Secretary of the Company, to the effect that:
(i) The Company has been duly incorporated and is an existing
corporation in good standing under the laws of the State of Delaware, with
corporate power and authority to own its properties and conduct its
business as described in the Prospectus. The Company is duly qualified to
do business as a foreign corporation in good standing in all other
jurisdictions in which its ownership or lease of property or the conduct
of its business requires such qualification, except to the extent that the
failure to be so qualified or to be in good standing, considering all such
cases in the aggregate, will not be reasonably likely to have a Material
Adverse Effect;
(ii) The Offered Securities delivered on such Closing Date have been
duly authorized and validly issued, are fully paid and nonassessable and
conform to the description thereof contained in the Prospectus; and the
stockholders of the Company have no preemptive rights with respect to the
Offered Securities;
(iii) Except for the Stockholder Agreement, there are no contracts,
agreements or understandings known to such counsel between the Company and
any person granting such person 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 person or to require the Company to
include such securities in the securities registered pursuant to the
Registration Statement or in any securities being
10
<PAGE>
registered pursuant to any other registration statement filed by the
Company under the Act;
(iv) The execution, delivery and 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 and provisions of, or
constitute a default under, any statute, any rule, regulation or order of
any governmental agency or body or any court having jurisdiction over the
Company or any subsidiary of the Company or any of their properties, or
any agreement or instrument to which the Company or any such subsidiary is
a party or by which the Company or any such subsidiary is bound or to
which any of the properties of the Company or any such subsidiary is
subject, or the charter or by-laws of the Company or any such subsidiary,
except to the extent that such breaches, violations, or defaults,
individually or in the aggregate, would not be reasonably likely to have a
Material Adverse Effect.
(e) The Representative shall have received an opinion, dated such Closing
Date, of Davis Polk & Wardwell, special counsel for the Company, to the effect
that:
(i) No consent, approval, authorization or order of, or filing with,
any governmental agency or body or any court is required to be obtained or
made by the Company for the consummation of the transactions contemplated
by this Agreement in connection with the sale of the Offered Securities,
except such as have been obtained and made under the Act and such as may
be required under state securities laws;
(ii) The Registration Statement was declared effective under the Act
as of the date and time specified in such opinion, the Prospectus was
filed with the Commission pursuant to the subparagraph of Rule 424(b)
specified in such opinion on the date specified therein and, to the best
of the knowledge of such counsel, no stop order suspending the
effectiveness of the Registration Statement or any part thereof has been
issued as of the date of this Agreement and no proceedings for that
purpose have been instituted or are pending or contemplated under the Act,
and the registration statement relating to the Registered Securities, as
of its effective date, and the Prospectus, as of the date of this
Agreement, and each amendment or supplement thereto, as of its date,
complied as to form in all material respects with the requirements of the
Act and the Rules and Regulations; such counsel have no reason to believe
that such registration statement, as of its effective date, the
Registration Statement, as of the date of this Agreement or as of the
Closing Date or any amendment thereto, as of its date or as of the Closing
Date, contained any untrue statement of a material fact or omitted to
state any material fact required to be stated therein or necessary to make
the statements therein not misleading or that the Prospectus as of the
date of this Agreement or as of the Closing Date or any amendment or
supplement thereto, as of the date of this Agreement or as of such Closing
Date, contained any untrue statement of a material fact or omitted 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; or the descriptions in the Registration Statement and
Prospectus of statutes, legal and governmental proceedings and contracts
and other documents are accurate and fairly present the information
required to be shown; and such counsel do not know of any legal or
governmental proceedings required to be described in the Registration
Statement or the Prospectus which are not described as required or of any
contracts or documents of a character required to be described in a
Registration Statement or the Prospectus or to be filed as exhibits to a
Registration Statement which are not described
11
<PAGE>
and filed as required; it being understood that such counsel need express
no opinion as to the financial statements or other financial data
contained in the Registration Statement or the Prospectus; and
(iii) This Agreement has been duly authorized, executed and delivered
by the Company.
(f) The Representative shall have received an opinion, dated such Closing
Date, of legal counsel for Thomas P. MacMahon and Bradford T. Smith
(collectively, the "Individual Selling Stockholders"), reasonably acceptable to
the Representative, substantially to the effect that:
(i) Assuming that the Offered Securities have been validly issued by
the Company and are fully paid and nonassessable, and based solely upon a
review of (A) the stock records of the Company, (B) the certificate or
certificates representing the Offered Securities being sold today by the
Individual Selling Stockholders, (C) the representations of the Individual
Selling Stockholders contained in Section 2(b)(i) of this Agreement and
(D) factual certificates obtained from each of the Individual Selling
Stockholders, the Offered Securities to be sold on the Closing Date by the
Individual Selling Stockholders pursuant to the this Agreement are owned
of record as set forth on Schedule A to such opinion of counsel;
(ii) Assuming that each of the several Underwriters purchasing
Offered Securities from an Individual Selling Stockholder pursuant to this
Agreement purchases such Offered Securities in good faith and without
notice of any lien, encumbrance, equity or any other adverse claim within
the meaning of the New York Uniform Commercial Code, upon the delivery of
certificates for the Offered Securities sold on the Closing Date by such
Individual Selling Stockholder pursuant to this Agreement, each of the
several Underwriters who have purchased such Offered Securities will
acquire such Offered Securities free and clear of all liens, encumbrances,
equities or adverse claims within the meaning of the New York Uniform
Commercial Code.
(g) The Representative shall have received an opinion, dated such Closing
Date, of Davis Polk & Wardwell, special counsel for Roche, reasonably
acceptable to the Representative, substantially to the effect that:
(i) Roche has been duly organized and is validly existing as a
corporation in good standing under the laws of Delaware; Roche has full
power and authority to enter into this Agreement and to sell, assign,
transfer and deliver the Securities to be sold by Roche hereunder; and
Roche has duly authorized the execution and delivery of this Agreement;
(ii) Assuming that the Offered Securities have been validly issued by
the Company and are fully paid and nonassessable, and based solely upon a
review of (A) the certificate or certificates representing the Offered
Securities being sold today by Roche, (B) the representations of Roche
contained in Section 2(b)(i) of this Agreement and (C) factual
certificates obtained from the Company, the Offered Securities to be sold
today by Roche pursuant to the this Agreement are owned of record as set
forth on Schedule A to such opinion of counsel;
(iii) Assuming that each of the several Underwriters purchasing
Offered Securities from Roche pursuant to this Agreement purchases such
Offered Securities in good faith and without notice of any lien,
encumbrance, equity or any other adverse claim within the meaning of the
New York Uniform Commercial Code, upon the
12
<PAGE>
delivery of certificates for the Offered Securities sold today by Roche
pursuant to this Agreement, each of the several Underwriters who have
purchased such Offered Securities will acquire such Offered Securities
free and clear of all liens, encumbrances, equities or adverse claims
within the meaning of the New York Uniform Commercial Code.
(h) The Representative shall have received from Skadden, Arps, Slate,
Meagher & Flom LLP, counsel for the Underwriters, such opinion or opinions,
dated such Closing Date, with respect to the incorporation of the Company, the
validity of the Offered Securities delivered on such Closing Date, the
Registration Statements, the Prospectus and other related matters as the
Representative may reasonably require, and the Selling Stockholders and the
Company shall have furnished to such counsel such documents as they request for
the purpose of enabling them to pass upon such matters.
(i) The Representative shall have received a certificate, dated such
Closing Date, of the President or any Vice President and a principal financial
or accounting officer of the Company in which such officers, to the best of
their knowledge after reasonable investigation, shall state that: the
representations and warranties of the Company in this Agreement are true and
correct; the Company has complied with all agreements and satisfied all
conditions on its part to be performed or satisfied hereunder at or prior to
such Closing Date; no stop order suspending the effectiveness of the
Registration Statement or any part thereof has been issued and no proceedings
for that purpose have been instituted or are contemplated by the Commission;
and, subsequent to the respective date of the most recent financial statements
in the Prospectus, there has been no material adverse change, nor any
development or event involving a prospective material adverse change, in the
condition (financial or other), business, properties or results of operations
of the Company and its subsidiaries taken as a whole except as set forth in or
contemplated by the Prospectus or as described in such certificate.
(j) The Representative shall have received a certificate, dated such
Closing Date, of an authorized officer of Roche, in which such authorized
officer, to the best of his or her knowledge after reasonable investigation,
shall state that: the representations and warranties of Roche in this Agreement
are true and correct and Roche has complied with all agreements and satisfied
all conditions on its part to be performed or satisfied under this Agreement at
or prior to such Closing Date.
(k) The Representative shall have received a certificate, dated the
Closing Date, of each of Thomas P. MacMahon and Bradford T. Smith in which such
Selling Stockholder to the best of his knowledge after reasonable
investigation, shall state that the representations and warranties of such
Selling Stockholder in this Agreement are true and correct, and that such
Selling Stockholder has complied with all agreements and satisfied all
conditions on its part to be performed or satisfied hereunder at or prior to
the Closing Date.
(l) The Representative shall have received a letter, dated such Closing
Date, of PricewaterhouseCoopers LLP which meets the requirements of subsection
(a) of this Section, except that the specified date referred to in such
subsection will be a date not more than three days prior to such Closing Date
for the purposes of this subsection.
The Selling Stockholders and the Company will furnish the Representative with
such conformed copies of such opinions, certificates, letters and documents as
the Representative reasonably requests. CSFBC may in its sole discretion waive
on behalf of the Underwriters compliance with any conditions to the obligations
of the Underwriters hereunder, whether in respect of an Optional Closing Date
or otherwise.
7. Indemnification and Contribution. (a) The Company will indemnify and
hold harmless each Underwriter, its partners, directors and officers and each
person, if any, who controls such Underwriter within the meaning of Section 15
of the Act, against any losses, claims, damages or liabilities,
13
<PAGE>
joint or several, to which such Underwriter may become subject, under the Act
or otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon any untrue statement
or alleged untrue statement of any material fact contained in the Registration
Statement, the Prospectus, or any amendment or supplement thereto, or any
related preliminary prospectus, or arise out of or are based upon the omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, and will
reimburse each Underwriter for any legal or other expenses reasonably incurred
by such Underwriter in connection with investigating or defending any such
loss, claim, damage, liability or action as such expenses are incurred;
provided, however, that the Company will not be liable in any such case to the
extent that any such loss, claim, damage or liability arises out of or is based
upon an untrue statement or alleged untrue statement in or omission or alleged
omission from any of such documents in reliance upon and in conformity with
written information furnished to the Company by any Underwriter through the
Representative specifically for use therein, it being understood and agreed
that the only such information furnished by any Underwriter consists of the
information described as such in subsection (c) below.
(b) The Selling Stockholders, severally and not jointly, will indemnify
and hold harmless each Underwriter, its partners, directors and officers and
each person, if any, who controls such Underwriter within the meaning of
Section 15 of the Act, against any losses, claims, damages or liabilities,
joint or several, to which such Underwriter may become subject, under the Act
or otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon any untrue statement
or alleged untrue statement of any material fact contained in the Registration
Statement, the Prospectus, or any amendment or supplement thereto, or any
related preliminary prospectus, or arise out of or are based upon the omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, in each
case to the extent, but only to the extent, that such untrue statement or
alleged untrue statement or omission or alleged omission was made in reliance
upon and in conformity with written information furnished to the Company or the
Underwriters by such Selling Stockholder, and will reimburse such Underwriter
for any legal or other expenses reasonably incurred by such Underwriter in
connection with investigating or defending any such loss, claim, damage,
liability or action as such expenses are incurred.
(c) Each Underwriter will severally and not jointly indemnify and hold
harmless the Company, its directors and officers and each person, if any, who
controls the Company within the meaning of Section 15 of the Act, and each
Selling Stockholder against any losses, claims, damages or liabilities to which
the Company or such Selling Stockholder may become subject, under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions
in respect thereof) arise out of or are based upon any untrue statement or
alleged untrue statement of any material fact contained in any Registration
Statement, the Prospectus, or any amendment or supplement thereto, or any
related preliminary prospectus, or arise out of or are based upon the omission
or the alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, in each
case to the extent, but only to the extent, that such untrue statement or
alleged untrue statement or omission or alleged omission was made in reliance
upon and in conformity with written information furnished to the Company by
such Underwriter through the Representative specifically for use therein, and
will reimburse any legal or other expenses reasonably incurred by the Company
and each Selling Stockholder in connection with investigating or defending any
such loss, claim, damage, liability or action as such expenses are incurred, it
being understood and agreed that the only such information furnished by any
Underwriter consists of (i) the following information in the Prospectus
furnished on behalf of each Underwriter: the concession and reallowance figures
appearing in the fourth paragraph under the caption "Underwriting" and the
over-allotments and stabilizing descriptions appearing in the ninth paragraph
under the caption "Underwriting.
(d) Promptly after receipt by an indemnified party under this Section of
notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against an indemnifying party under
subsection (a), (b) or (c) above, notify the indemnifying party of the
14
<PAGE>
commencement thereof; but the omission so to notify the indemnifying party will
not relieve it from any liability which it may have to any indemnified party
otherwise than under subsection (a), (b) or (c) above. In case any such action
is brought against any indemnified party and it notifies an indemnifying party
of the commencement thereof, the indemnifying party will be entitled to
participate therein and, to the extent that it may wish, jointly with any other
indemnifying party similarly notified, to assume the defense thereof, with
counsel satisfactory to such indemnified party (who shall not, except with the
consent of the indemnified party, be counsel to the indemnifying party), and
after notice from the indemnifying party to such indemnified party of its
election so to assume the defense thereof, the indemnifying party will not be
liable to such indemnified party under this Section for any legal or other
expenses subsequently incurred by such indemnified party in connection with the
defense thereof other than reasonable costs of investigation. No indemnifying
party shall, without the prior written consent of the indemnified party, effect
any settlement of any pending or threatened action in respect of which any
indemnified party is or could have been a party and indemnity could have been
sought hereunder by such indemnified party unless such settlement (i) includes
an unconditional release of such indemnified party from all liability on any
claims that are 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 an indemnified party.
(e) If the indemnification provided for in this Section is unavailable or
insufficient to hold harmless an indemnified party under subsection (a), (b) or
(c) above, then each indemnifying party shall contribute to the amount paid or
payable by such indemnified party as a result of the losses, claims, damages or
liabilities referred to in subsection (a), (b) or (c) above (i) in such
proportion as is appropriate to reflect the relative benefits received by the
Company and the Selling Stockholders on the one hand and the Underwriters on
the other from the offering of the Securities or (ii) if the allocation
provided by clause (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 (i) above but also the relative fault of the Company and the
Selling Stockholders on the one hand and the Underwriters on the other in
connection with the statements or omissions which resulted in such losses,
claims, damages or liabilities as well as any other relevant equitable
considerations. The relative benefits received by the Company and the Selling
Stockholders on the one hand and the Underwriters on the other shall be deemed
to be in the same proportion as the total net proceeds from the offering
(before deducting expenses) received by the Selling Stockholders bear to the
total underwriting discounts and commissions received by the Underwriters. The
relative fault 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, the Selling Stockholders or the Underwriters and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such untrue statement or omission. The amount paid by an indemnified
party as a result of the losses, claims, damages or liabilities referred to in
the first sentence of this subsection (e) shall be deemed to include any legal
or other expenses reasonably incurred by such indemnified party in connection
with investigating or defending any action or claim which is the subject of
this subsection (e). Notwithstanding the provisions of this subsection (e), no
Underwriter shall be required to contribute any amount in excess of the amount
by which the total price at which the Securities 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 in
this subsection (e) to contribute are several in proportion to their respective
underwriting obligations and not joint.
(f) The obligations of the Company and the Selling Stockholders under this
Section shall be in addition to any liability which the Company and the Selling
Stockholders may otherwise have and shall extend, upon the same terms and
conditions, to each person, if any, who controls any Underwriter within the
meaning of the Act; and the obligations of the Underwriters under this Section
shall be in addition to any liability which the respective Underwriters may
otherwise have and shall
15
<PAGE>
extend, upon the same terms and conditions, to each director of the Company, to
each officer of the Company who has signed a Registration Statement and to each
person, if any, who controls the Company within the meaning of the Act.
8. Default of Underwriters. If any Underwriter or Underwriters default in
their obligations to purchase Offered Securities hereunder on either the First
or any Optional Closing Date and the aggregate number of shares of Offered
Securities that such defaulting Underwriter or Underwriters agreed but failed
to purchase does not exceed 10% of the total number of shares of Offered
Securities that the Underwriters are obligated to purchase on such Closing
Date, CSFBC may make arrangements satisfactory to the Selling Stockholders for
the purchase of such Offered Securities by other persons, including any of the
Underwriters, but if no such arrangements are made by such Closing Date, the
non-defaulting Underwriters shall be obligated severally, in proportion to
their respective commitments hereunder, to purchase the Offered Securities that
such defaulting Underwriters agreed but failed to purchase on such Closing
Date. If any Underwriter or Underwriters so default and the aggregate number of
shares of Offered Securities with respect to which such default or defaults
occur exceeds 10% of the total number of shares of Offered Securities that the
Underwriters are obligated to purchase on such Closing Date and arrangements
satisfactory to CSFBC and the Selling Stockholders for the purchase of such
Offered Securities by other persons are not made within 36 hours after such
default, this Agreement will terminate without liability on the part of any
non-defaulting Underwriter, the Company or the Selling Stockholders, except as
provided in Section 9 (provided that if such default occurs with respect to
Optional Securities after the First Closing Date, this Agreement will not
terminate as to the Firm Securities or any Optional Securities purchased prior
to such termination). As used in this Agreement, the term "Underwriter"
includes any person substituted for an Underwriter under this Section. Nothing
herein will relieve a defaulting Underwriter from liability for its default.
9. Survival of Certain Representations and Obligations. The respective
indemnities, agreements, representations, warranties and other statements of
the Selling Stockholders, of the Company or its officers and of the several
Underwriters set forth in or made pursuant to this Agreement will remain in
full force and effect, regardless of any investigation, or statement as to the
results thereof, made by or on behalf of any Underwriter, any Selling
Stockholder, the Company or any of their respective representatives, officers
or directors or any controlling person, and will survive delivery of and
payment for the Offered Securities. If for any reason the purchase of the
Offered Securities by the Underwriters is not consummated, the Selling
Stockholders shall remain responsible for the expenses to be paid or reimbursed
by them pursuant to Section 5 and the respective obligations of the Company,
the Selling Stockholders, and the Underwriters pursuant to Section 7 shall
remain in effect, and if any Offered Securities have been purchased hereunder
the representations and warranties in Section 2 and all obligations under
Section 5 shall also remain in effect. If the purchase of the Offered
Securities by the Underwriters is not consummated for any reason other than
solely because of the termination of this Agreement pursuant to Section 8 or
the occurrence of any event specified in clause (iii), (iv) or (v) of Section
6(c), the Company will reimburse the Underwriters for all out-of-pocket
expenses (including fees and disbursements of counsel) reasonably incurred by
it in connection with the offering of the Offered Securities.
10. Notices. All communications hereunder will be in writing and, if sent
to the Underwriters, will be mailed, delivered or telegraphed and confirmed to
the Representative at Eleven Madison Avenue, New York, NY 10010-3629,
Attention: Transactions Advisory Group, or, if sent to the Company, will be
mailed, delivered or telegraphed and confirmed to it at 358 South Main Street,
Burlington, North Carolina 27215, Attention: General Counsel, or, if sent to
Roche, will be mailed, delivered or telegraphed and confirmed to it care of F.
Hoffman-La Roche LTD, Grenzacherstrasse 124, CH-4070 Basel, Switzerland,
Attention: Bernd Wolff or, if sent to the Individual Selling Stockholders or
any of them, will be mailed, delivered or telegraphed and confirmed to such
Individual Selling Stockholder at Laboratory Corporation of America Holdings,
358 South Main Street, Burlington, North
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<PAGE>
Carolina 27215; provided, however, that any notice to an Underwriter pursuant
to Section 7 will be mailed, delivered or telegraphed and confirmed to such
Underwriter.
11. Successors. This Agreement will inure to the benefit of and be binding
upon the parties hereto and their respective successors and the officers and
directors and controlling persons referred to in Section 7, and no other person
will have any right or obligation hereunder.
12. Representation. The Representative will act for the several
Underwriters in connection with the transactions contemplated by this Agreement
and any action under this Agreement taken by the Representative jointly or by
CSFBC will be binding upon all the Underwriters.
13. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same Agreement.
14. Applicable Law. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of New York, without regard to
principles of conflicts of laws.
The Company hereby submits to the non-exclusive jurisdiction of the
Federal and state courts in the Borough of Manhattan in The City of New York in
any suit or proceeding arising out of or relating to this Agreement or the
transactions contemplated hereby.
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<PAGE>
If the foregoing is in accordance with the Representative's understanding
of our agreement, kindly sign and return to the Company one of the counterparts
hereof, whereupon it will become a binding agreement among the Selling
Stockholders, the Company and the several Underwriters in accordance with its
terms.
Very truly yours,
ROCHE HOLDINGS, INC.
By: /s/ Marcel F. Kohler
--------------------------
Name: Marcel F. Kohler
Title: Vice President-Controller and
Secretary
LABORATORY CORPORATION OF
AMERICA HOLDINGS
By /s/ Wesley R. Elingburg
--------------------------
Name: Wesley R. Elingburg
Title: Chief Financial Officer and
Executive Vice President
/s/ Thomas P. MacMahon
--------------------------
Thomas P. MacMahon
/s/ Bradford T. Smith
--------------------------
Bradford T. Smith
The foregoing Underwriting Agreement is hereby confirmed and accepted as of the
date first above written.
CREDIT SUISSE FIRST BOSTON CORPORATION
Acting on behalf of itself and as the
Representative of the several Underwriters.
By CREDIT SUISSE FIRST BOSTON CORPORATION
By /s/ Francois Maisonrouge
-------------------------------------
Name: Francois Maisonrouge
Title: Managing Director,
Head of European Health Care
<PAGE>
SCHEDULE A
Number of
Number of Optional
Firm Securities Securities
Selling Stockholder to be Sold to be Sold
------------------- --------------- ----------
Roche Holdings Inc. ................. 3,625,000 375,000
Thomas P. MacMahon .................. 115,000
Bradford T. Smith.................... 35,000
---------
Total................................ 3,775,000 375,000
========= =======
<PAGE>
SCHEDULE B
Number of
Firm Securities
Underwriter to be Purchased
----------- ---------------
Credit Suisse First Boston Corporation........................ 3,208,750
Merrill Lynch, Pierce Fenner & Smith Incorporated............. 283,125
UBS Warburg LLC.............................................. 283,125
---------
Total.................................................... 3,775,000
=========
