EXHIBIT 10.1
EXECUTION COPY
$275,000,000
XXX ACQUISITION CORP.
10 1/2% SENIOR SUBORDINATED NOTES DUE 2013
PURCHASE AGREEMENT
March 13, 2003
CREDIT SUISSE FIRST BOSTON LLC
DEUTSCHE BANK SECURITIES INC.
WACHOVIA SECURITIES, INC.
c/o Credit Suisse First Boston LLC,
Xxxxxx Xxxxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000-0000
Dear Sirs:
1. INTRODUCTORY. Xxx Xxxxxxxxxxx Corp., a Delaware corporation (the
"COMPANY"), which will be merged with and into AmeriPath, Inc., a Delaware
corporation ("AMERIPATH"), upon closing of the Merger (as defined below),
proposes, subject to the terms and conditions stated herein, to issue and sell
to the several initial purchasers named in Schedule A hereto (the "PURCHASERS")
$275,000,000 principal amount of its 10 1/2% Senior Subordinated Notes due 2013
(the "OFFERED SECURITIES") to be issued under an indenture to be dated as of
March 27, 2003 (the "INDENTURE"), among the Company, the Guarantors (as defined
in paragraph 2(c) below) and U.S. Bank National Association, as Trustee, on a
private placement basis pursuant to an exemption under Section 4(2) of the
United States Securities Act of 1933 (the "SECURITIES ACT"). Concurrently with
the purchase and sale of the Offered Securities, the Company will be merged with
and into AmeriPath (the "MERGER") pursuant to and on the terms and conditions
contained in the Agreement and Plan of Merger dated as of December 8, 2002 (the
"MERGER AGREEMENT"), among the Company, Xxx Holding Company ("PARENT") and
AmeriPath. Following the closing of the Merger, references in this Agreement to
the Company will mean AmeriPath, as the surviving company in the Merger. In
connection therewith, the Company hereby agrees with the several Purchasers as
follows:
The holders of the Offered Securities will be entitled to the benefits of a
Registration Rights Agreement among the Company, the Guarantors and the
Purchasers (the "REGISTRATION RIGHTS AGREEMENT"), pursuant to which the Company
agrees to file a registration statement with the Securities Exchange Commission
(the "COMMISSION") registering the resale of the Offered Securities under the
Securities Act.
2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company represents
and warrants to, and agrees with, the several Purchasers that:
2
(a) A preliminary offering circular and an offering circular relating
to the Offered Securities has been prepared by the Company. Such
preliminary offering circular (the "PRELIMINARY OFFERING CIRCULAR") and
offering circular (the "OFFERING CIRCULAR"), as supplemented as of the date
of this Agreement, together with any other document approved by the Company
for use in connection with the contemplated resale of the Offered
Securities, are hereinafter collectively referred to as the "OFFERING
DOCUMENT". The Preliminary Offering Circular as of its date did not and the
Offering Circular as of the date of this Agreement does not include 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. The preceding
sentence does not apply to statements in or omissions from the Offering
Document based upon written information furnished to the Company by any
Purchaser through Credit Suisse First Boston LLC and Deutsche Bank
Securities Inc. (the "MANAGERS") specifically for use therein; it being
understood and agreed that the only such information is that described as
such in Section 7(b) hereof.
(b) Each of the Company and AmeriPath has been duly incorporated and
is an existing corporation in good standing under the laws of the State of
Delaware, with the corporate power and authority to own its properties and
conduct its business as described in the Offering Document; and AmeriPath
is duly qualified to do business as a foreign corporation in good standing
(to the extent such qualification exists) in all other jurisdictions in
which its ownership or lease of property or the conduct of its business
requires such qualification, except where the failure to be so qualified
individually or in the aggregate would not have a material adverse effect
on the business, assets, operations, condition (financial or otherwise) or
prospects of the Company, AmeriPath and the Subsidiaries (as defined in
paragraph 2(c) below) taken as a whole (a "MATERIAL ADVERSE EFFECT").
(c) Each of AmeriPath's subsidiaries (the "SUBSIDIARIES") has been
duly incorporated or organized and is an existing corporation or other
applicable legal entity in good standing (to the extent such qualification
exists) under the laws of the jurisdiction of its incorporation or
organization, with power and authority (corporate and other) to own its
properties and conduct its business as described in the Offering Document;
and each Subsidiary is duly qualified to do business as a foreign
corporation or other applicable legal entity in good standing (to the
extent such qualification exists) in all other jurisdictions in which its
ownership or lease of property or the conduct of its business requires such
qualification, except where the failure to be so qualified individually or
in the aggregate would not have a Material Adverse Effect; the legal name
and jurisdiction of incorporation or organization of each Subsidiary has
been set forth on Schedule B hereto; all of the issued and outstanding
capital stock (or other equity securities) of each Subsidiary has been duly
authorized and validly issued and is fully paid and nonassessable (or
equivalent); and, except as disclosed in the Offering Document or otherwise
set forth on Schedule B hereto, all of the capital stock of each Subsidiary
is owned by AmeriPath, directly or through other Subsidiaries, free from
liens, encumbrances and defects.
3
(d) This Agreement, the Indenture, the Merger Agreement and the
Registration Rights Agreement have been (or will be on the Closing Date, in
the case of the Guarantors with respect to the Indenture and the
Registration Rights Agreement) duly authorized by the Company and, to the
extent applicable, AmeriPath and the Guarantors; this Agreement and the
Merger Agreement have been duly executed and delivered by the Company, and
the Merger Agreement has been duly executed and delivered by AmeriPath; the
Offered Securities have been duly authorized by the Company; when the
Offered Securities are delivered and paid for pursuant to this Agreement on
the Closing Date (as defined in paragraph 3 below), the Indenture and the
Registration Rights Agreement will have been duly executed and delivered by
the Company and the Guarantors, such Offered Securities will have been duly
executed, authenticated, issued and delivered by the Company and will
conform in all material respects to the description thereof contained in
the Offering Document; and when the Offered Securities have been issued,
executed and authenticated and delivered to and paid for by the Purchasers
in accordance with the terms of this Agreement and the Indenture, such
Offered Securities and the Registration Rights Agreement will constitute
valid and legally binding obligations of the Company and, to the extent
applicable, the Guarantors, enforceable in accordance with their terms,
subject to bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to or
affecting creditors' rights and to general equity principles (regardless of
whether considered in a proceeding at law or in equity).
(e) On the Closing Date, the guaranty (the "GUARANTY") of the Offered
Securities by each Subsidiary that is a guarantor thereof (the
"GUARANTORS") will have been duly authorized by each such Guarantor, and
will conform in all material respects to the description thereof contained
in the Offering Document; when the Offered Securities have been issued,
executed and authenticated in accordance with the Indenture and delivered
to and paid for by the Purchasers in accordance with the terms of this
Agreement, the Guaranty of each Guarantor will constitute a valid and
legally binding obligation of each such Guarantor enforceable in accordance
with its terms, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights and to general equity principles
(regardless of whether considered in a proceeding at law or in equity).
(f) On the Closing Date, the Exchange Securities (as defined in the
Registration Rights Agreement) will have been duly authorized by the
Company; and when the Exchange Securities are issued, executed and
authenticated in accordance with the terms of the Exchange Offer (as
defined in the Registration Rights Agreement) and the Indenture, the
Exchange Securities will constitute valid and legally binding obligations
of the Company, enforceable in accordance with their terms, subject to
bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and
similar laws of general applicability relating to or affecting creditors'
rights and to general equity principles (regardless of whether considered
in a proceeding at law or in equity).
(g) On the Closing Date, the guaranty of the Exchange Securities by
each Guarantor will have been duly authorized by each such Guarantor; and
when the Exchange Securities have been issued, executed and authenticated
in accordance with the
4
terms of the Exchange Offer and the Indenture, the guaranty of each
Guarantor will constitute a valid and legally binding obligation of each
such Guarantor, enforceable in accordance with its terms, subject to
bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and
similar laws of general applicability relating to or affecting creditors'
rights and to general equity principles (regardless of whether considered
in a proceeding at law or in equity).
(h) Except as disclosed in the Offering Document, there are no
contracts, agreements or understandings between the Company, AmeriPath or
any Subsidiary and any person (other than the Purchasers) that would give
rise to a valid claim against the Company, AmeriPath, any Subsidiary or any
Purchaser for a brokerage commission, finder's fee or other like payment in
connection with the issuance of the Offered Securities.
(i) No consent, approval, authorization, or order of, or filing with,
any governmental agency or body or any court is required for the
consummation of the transactions contemplated by this Agreement and the
Registration Rights Agreement in connection with the issuance and sale of
the Offered Securities by the Company, except for the filing of the
Exchange Offer Registration Statement or the Shelf Registration Statement
and the order of the Commission declaring the Exchange Offer Registration
Statement or the Shelf Registration Statement (each as defined in the
Registration Rights Agreement) effective and except as may be required
under the Trust Indenture Act of 1939, as amended (the "Trust Indenture
Act") or state securities laws.
(j) The execution, delivery and performance of the Indenture, the
Guaranty, this Agreement and the Registration Rights Agreement, and the
issuance and sale of the Offered Securities and compliance with the terms
and provisions thereof will not result in a breach or violation of any of
the terms and provisions of, or constitute a default under, (i) any
statute, any rule, regulation or order of any governmental agency or body
or any court, domestic or foreign, having jurisdiction over the Company,
AmeriPath, the Parent or any Subsidiary or any of their properties, (ii)
any agreement or instrument to which the Company, AmeriPath, the Parent or
any such Subsidiary is a party or by which the Company, AmeriPath, the
Parent or any such Subsidiary is bound or to which any of the properties of
the Company, AmeriPath, the Parent or any such Subsidiary is subject, or
(iii) the charter or by-laws of the Company, AmeriPath, the Parent or any
such Subsidiary; and the Company has full power and authority to authorize,
issue and sell the Offered Securities as contemplated by this Agreement,
except in the case of clause (i) and (ii) for any breach or violation of or
default under any such statute, rule, regulation, order, agreement or
instrument that individually or in the aggregate wound not have a Material
Adverse Effect.
(k) Except as disclosed in the Offering Document, the Company,
AmeriPath and the Subsidiaries have good and marketable title to all real
properties and all other material properties and assets owned by them, in
each case free from liens, encumbrances and defects that would materially
affect the value thereof or materially interfere with the use made or to be
made thereof by them; and, except as disclosed in the Offering Document,
the Company, AmeriPath and the Subsidiaries hold any leased real or
material personal
5
property under valid and enforceable leases with no exceptions that would
materially interfere with the use made or to be made thereof by them.
(l) Except as would not individually or in the aggregate have a
Material Adverse Effect, the Company, AmeriPath and the 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.
(m) No labor dispute with the employees of the Company, AmeriPath or
any Subsidiary exists or, to the knowledge of the Company, is imminent that
is reasonably likely to have a Material Adverse Effect.
(n) Except as would not individually or in the aggregate have a
Material Adverse Effect, the Company, AmeriPath and the Subsidiaries own,
possess or can acquire on reasonable terms, or have valid licenses or other
legal rights to use, 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 used
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.
(o) Except as disclosed in the Offering Document, none of the
Company, AmeriPath or any of the 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.
(p) Except as disclosed in the Offering Document, there are no
pending actions, suits or proceedings against or, to the Company's
knowledge, affecting the Company, AmeriPath, any of the Subsidiaries or any
of their respective properties that, if determined adversely to the
Company, AmeriPath or any of the 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 the
Indenture, this Agreement or the Registration Rights Agreement, or which
are otherwise material in the context of the sale of the Offered
Securities; and no such actions, suits or proceedings are, to the knowledge
of the Company, threatened.
(q) The financial statements included in the Offering Document
present fairly in all material respects the financial position of (i) the
Company and (ii) AmeriPath and the
6
Subsidiaries, on a consolidated basis, as of the dates shown, in the case
of the financial statements referred to in (ii) above, 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 assumptions used in preparing the pro forma financial statements
included in the Offering Document provide a reasonable basis for presenting
the significant effects directly attributable to the Merger or the other
transactions or events described therein, the related pro forma adjustments
give appropriate effect to those assumptions, and the pro forma columns
therein reflect the proper application of those adjustments to the
corresponding historical financial statement amounts. The financial and
statistical information included in the Offering Document with respect to
AmeriPath's existing contingent notes issued in connection with prior
acquisitions and any earn-out payments similar thereto presents fairly in
all material respects the obligations of AmeriPath thereunder and is
otherwise true and accurate in all material respects.
(r) Except as disclosed in the Offering Document, since the date of
the latest audited financial statements included in the Offering Document
there has been no material adverse change, nor any development or event
involving a prospective material adverse change, in the business, assets,
operations, condition (financial or other) or prospects of the Company or
AmeriPath and the Subsidiaries taken as a whole, and, except as disclosed
in or contemplated by the Offering Document, there has been no dividend or
distribution of any kind declared, paid or made by the Company, AmeriPath
or any Subsidiary on any class of capital stock.
(s) The Company is not an open-end investment company, unit
investment trust or face-amount certificate company that is or is required
to be registered under Section 8 of the United States Investment Company
Act of 1940 (the "INVESTMENT COMPANY ACT"); and the Company is not and,
after giving effect to the offering and sale of the Offered Securities and
the application of the proceeds thereof as described in the Offering
Document, will not be an "investment company" as defined in the Investment
Company Act.
(t) No securities of the same class (within the meaning of
Rule 144A(d)(3) under the Securities Act) as the Offered Securities are
listed on any national securities exchange registered under Section 6 of
the Exchange Act or quoted in a U.S. automated inter-dealer quotation
system.
(u) Assuming the accuracy of the Purchasers' representations and
warranties contained in Section 4 below, the offer and sale of the Offered
Securities by the Company to the several Purchasers in the manner
contemplated by this Agreement will be exempt from the registration
requirements of the Securities Act by reason of Section 4(2) thereof and
Regulation S and it is not necessary to qualify an indenture in respect of
the Offered Securities under the United States Trust Indenture Act of 1939,
as amended (the "TRUST INDENTURE ACT"), PROVIDED that on the Closing Date,
the Indenture will conform in all material respects to the requirements of
the Trust Indenture Act and the rules and regulations of the Commission
applicable to an indenture that is qualified thereunder.
7
(v) Neither the Company or any of its affiliates nor any person
acting on its or their behalf (i) has, within the six-month period prior to
the date hereof, offered or sold in the United States or to any U.S. person
(as such terms are defined in Regulation S under the Securities Act) the
Offered Securities or any security of the same class or series as the
Offered Securities or (ii) has offered or will offer or sell the Offered
Securities (A) in the United States by means of any form of general
solicitation or general advertising within the meaning of Rule 502(c) under
the Securities Act or (B) with respect to any securities sold in reliance
on Rule 903 of Regulation S, by means of any directed selling efforts
within the meaning of Rule 902(c) of Regulation S. The Company has not
entered and will not enter into any contractual arrangement with respect to
the distribution of the Offered Securities except for this Agreement.
(w) Neither the Company, AmeriPath or any Subsidiary nor any agent
thereof acting on their behalf has taken, and none of them will take, any
action that might cause the transactions contemplated by this Agreement,
including the issuance or sale of the Offered Securities, to violate
Regulation T, Regulation U or Regulation X of the Board of Governors of the
Federal Reserve System.
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, the Company agrees to sell to the
Purchasers, and the Purchasers agree, severally and not jointly, to purchase
from the Company, at a purchase price of 97.00% of the principal amount thereof
plus accrued interest from March 27, 2003 to the Closing Date (as hereinafter
defined) the respective principal amounts of Offered Securities set forth
opposite the names of the several Purchasers in Schedule A hereto.
The Company will deliver against payment of the purchase price the Offered
Securities to be offered and sold by the Purchasers in reliance on Regulation S
(the "REGULATION S SECURITIES") in the form of one or more temporary global
Securities in registered form without interest coupons (the "TEMPORARY
REGULATION S GLOBAL SECURITIES") which will be deposited with the Trustee as
custodian for The Depository Trust Company ("DTC") for the respective accounts
of the DTC participants for Euroclear Bank S.A./N.V., as operator of the
Euroclear System ("EUROCLEAR"), and Clearstream Banking, societe anonyme
("CLEARSTREAM, LUXEMBOURG") and registered in the name of Cede & Co., as nominee
for DTC. The Company will deliver against payment of the purchase price the
Offered Securities to be purchased by each Purchaser hereunder and to be offered
and sold by each Purchaser in reliance on Rule 144A under the Securities Act
(the "144A SECURITIES") in the form of one or more permanent global security in
definitive form without interest coupons (the "RESTRICTED GLOBAL SECURITIES")
deposited with the Trustee as custodian for DTC and registered in the name of
Cede & Co., as nominee for DTC. The Temporary Regulation S Global Securities and
the Restricted Global Securities shall be assigned separate CUSIP numbers. The
Restricted Global Securities shall include the legend regarding restrictions on
transfer set forth under "Transfer Restrictions" in the Offering Document. Until
the termination of the distribution compliance period (as described in the
Offering Document) with respect to the offering of the Offered Securities,
interests in the Temporary Regulation S Global Securities may only be held by
the DTC participants for Euroclear and Clearstream, Luxembourg. Interests in any
permanent global Securities will be
8
held only in book-entry form through Euroclear, Clearstream, Luxembourg or DTC,
as the case may be, except in the limited circumstances described in the
Offering Document.
Payment for the Temporary Regulation S Global Securities and the 144A
Securities shall be made by the Purchasers in Federal (same day) funds by wire
transfer to an account of the Company or an account as the Company may direct at
a bank acceptable to the Managers, at the office of Cravath, Swaine & Xxxxx at
9:30 a.m. (New York time) on March 27, 2003, or at such other place or time not
later than seven full business days thereafter as the Managers and the Company
determine, such time being herein referred to as the "CLOSING DATE", against
delivery to the Trustee as custodian for DTC of (i) the Temporary Regulation S
Global Securities representing all of the Regulation S Securities for the
respective accounts of the DTC participants for Euroclear and Clearstream,
Luxembourg and (ii) the Restricted Global Securities representing all of the
144A Securities. The Temporary Regulation S Global Securities and the Restricted
Global Securities will be made available for checking at the office of Cravath,
Swaine & Xxxxx or such other place of closing at least 24 hours prior to the
Closing Date.
4. REPRESENTATIONS BY PURCHASERS; RESALE BY PURCHASERS.
(a) Each Purchaser severally represents and warrants to the Company that
it is an "accredited investor" within the meaning of Regulation D under the
Securities Act.
(b) Each Purchaser severally acknowledges that the Offered Securities have
not been registered under the Securities Act and may not be offered or sold
within the United States or to, or for the account or benefit of, U.S. persons
except in accordance with Regulation S or pursuant to an exemption from the
registration requirements of the Securities Act. Each Purchaser severally
represents and agrees that it has offered and sold the Offered Securities and
will offer and sell the Offered Securities (i) as part of their distribution at
any time and (ii) otherwise until 40 days alter the later of the commencement of
the offering and the Closing Date, only in accordance with Rule 144A
("RULE 144A") or Rule 903 under the Securities Act. Accordingly, neither such
Purchaser nor its affiliates, nor any persons acting on its or their behalf,
have engaged or will engage in any directed selling efforts with respect to the
Offered Securities, and such Purchaser, its affiliates and all persons acting on
its or their behalf have complied and will comply with the offering restrictions
requirement of Regulation S. Each Purchaser severally agrees that, at or prior
to confirmation of sale of the Offered Securities, other than a sale pursuant to
Rule 144A, such Purchaser will have sent to each distributor, dealer or person
receiving a selling concession, fee or other remuneration that purchases the
Offered Securities from it during the restricted period a confirmation or notice
to substantially the following effect:
"The Securities covered hereby have not been registered
under the U.S. Securities Act of 1933 (the "Securities
Act") and may not be offered or sold within the United
States or to, or for the account or benefit of, U.S.
persons (i) as part of their distribution at any time
or (ii) otherwise until 40 days after the later of the
date of the commencement of the offering and the
closing date, except in either case in accordance with
Regulation S (or Rule 144A if available) under the
Securities Act. Terms used above have the meanings
given to them by Regulation S."
9
Terms used in this subsection (b) have the meanings given to them by
Regulation S.
(c) Each Purchaser severally agrees that it and each of its affiliates has
not entered and will not enter into any contractual arrangement with respect to
the distribution of the Offered Securities except for any such arrangements with
the other Purchasers or affiliates of the other Purchasers that have been
previously disclosed to the Company in writing or with the prior written consent
of the Company.
(d) Each Purchaser severally agrees that it and each of its affiliates
will not offer or sell the Offered Securities by means of any form of general
solicitation or general advertising, within the meaning of Rule 502(c) under the
Securities Act, including, but not limited to (i) any advertisement, article,
notice or other communication published in any newspaper, magazine or similar
media or broadcast over television or radio, or (ii) any seminar or meeting
whose attendees have been invited by any general solicitation or general
advertising. Each Purchaser severally agrees, with respect to resales made in
reliance on Rule 144A of any of the Offered Securities, to deliver either with
the confirmation of such resale or otherwise prior to settlement of such resale
a notice to the effect that the resale of such Offered Securities has been made
in reliance upon the exemption from the registration requirements of the
Securities Act provided by Rule 144A.
(e) Each of the Purchasers severally represents and agrees that (i) it has
not offered or sold, and prior to the date six months after the date of issue of
the Offered Securities will not offer or sell, any Offered Securities to persons
in the United Kingdom except to persons whose ordinary activities involve them
in acquiring, holding, managing or disposing of investments (as principal or
agent) for the purposes of their businesses or otherwise in circumstances which
have not resulted and will not result in an offer to the public in the United
Kingdom within the meaning of the Public Offers of Securities Regulations 1995;
(ii) it has complied and will comply with all applicable provisions of the
Financial Services Act 1986 with respect to anything done by it in relation to
the Offered Securities in, from or otherwise involving the United Kingdom; and
(iii) it has only issued or passed on, and will only issue or pass on, in the
United Kingdom any document received by it in connection with the issue of the
Offered Securities to a person who is of a kind described in Article 11(3) of
the Financial Services Act 1986 (Investment Advertisements) (Exemptions) Order
1996 or is a person to whom such document may otherwise lawfully be issued or
passed on.
5. CERTAIN AGREEMENTS OF THE COMPANY. The Company agrees with the several
Purchasers that:
(a) The Company will advise the Managers promptly of any proposal to
amend or supplement the Offering Document and, except as contemplated by
the next sentence, will not effect such amendment or supplementation
without the Managers' consent. If, at any time prior to the completion of
the resale of the Offered Securities by the Purchasers any event occurs as
a result of which the Offering Document as then amended or supplemented
would include an 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, or
if it is necessary at any such time to amend or supplement the Offering
Document to comply with any applicable
10
law, the Company promptly will notify the Managers of such event and
promptly will prepare, at its own expense, an amendment or supplement which
will correct such statement or omission or effect such compliance. Neither
the Managers' consent to, nor the Purchasers' delivery to offerees or
investors of, any such amendment or supplement shall constitute a waiver of
any of the conditions set forth in Section 6.
(b) The Company will furnish to the Managers copies of the Offering
Document and all amendments and supplements to such documents, in each case
as soon as available and in such quantities as the Managers request, and
the Company will furnish to the Managers on the date hereof copies of the
Offering Document. At any time when the Company is not subject to
Section 13 or 15(d) of the Exchange Act, the Company will promptly furnish
or cause to be furnished to the Managers and, upon request, to each of the
other Purchasers and, upon request of holders of the Offered Securities, to
such holders, copies of the information required to be delivered to holders
and prospective purchasers of the Offered Securities pursuant to
Rule 144A(d)(4) under the Securities Act (or any successor provision
thereto) in order to permit compliance with Rule 144A in connection with
resales by such holders of the Offered Securities. The Company will pay the
expenses of printing and distributing to the Purchasers all such documents.
(c) The Company will arrange for the qualification of the Offered
Securities for sale and the determination of their eligibility for
investment under the laws of such states in the United States as the
Managers designate and will continue such qualifications in effect so long
as required for the resale of the Offered Securities by the Purchasers;
PROVIDED that the Company will not be required to qualify as a foreign
corporation or to file a general consent to service of process or become
subject to taxation in any such state.
(d) So long as the Offered Securities, Exchange Securities or Private
Exchange Securities (as defined in the Registration Rights Agreement) are
outstanding and held by any Purchaser or its affiliates, the Company will
furnish to the Managers, as soon as practicable after the end of each
fiscal year, a copy of any annual report to shareholders for such year that
is mailed to shareholders; and the Company will furnish to the Managers
such other information concerning the Company as the Managers may
reasonably request from time to time, subject to any confidentiality
arrangements reasonably requested by the Company.
(e) During the period of two years after the Closing Date, the
Company will, upon request, furnish to the Managers and any holder of
Offered Securities a copy of the restrictions on transfer applicable to the
Securities.
(f) During the period of two years after the Closing Date, the
Company will not, and will not permit any of its affiliates (as defined in
Rule 144 under the Securities Act) that are subsidiaries of Parent to,
resell any of the Offered Securities that have been reacquired by any of
them.
(g) During the period of two years after the Closing Date, the
Company will not be or become, an open-end investment company, unit
investment trust or face-amount
11
certificate company that is or is required to be registered under Section 8
of the Investment Company Act.
(h) The Company will pay all expenses incidental to the performance
of its obligations under this Agreement, the Indenture and the Registration
Rights Agreement, including (i) the fees and expenses of the Trustee and
its professional advisers; (ii) all expenses in connection with the
execution, issue, authentication, packaging and initial delivery of the
Offered Securities and, as applicable, the Exchange Securities, the
preparation and printing of this Agreement, the Registration Rights
Agreement, the Offered Securities, the Indenture, the Offering Document and
amendments and supplements thereto, and any other document relating to the
issuance, offer, sale and delivery of the Offered Securities and, as
applicable, the Exchange Securities; (iii) the cost of qualifying the
Offered Securities for trading in The Portal(SM) Market ("PORTAL") of The
Nasdaq Stock Market, Inc. and any expenses incidental thereto, (iv) he cost
of any advertising approved by the Company in connection with the issue of
the Offered Securities, (v) for any expenses (including fees and
disbursements of counsel) incurred in connection with qualification of the
Offered Securities or the Exchange Securities for sale under the laws of
such jurisdictions as the Managers designate and the printing of memoranda
relating thereto, (vi) for any fees charged by investment rating agencies
for the rating of the Offered Securities or the Exchange Securities and
(vii) for expenses incurred in distributing preliminary offering circulars
and the Offering Document (including any amendments and supplements
thereto) to the Purchasers. The Company will reimburse the Purchasers an
amount equal to (A) any expenses incurred by the Purchasers in connection
with the lease and/or operation of aircraft by the Purchasers or officers
and employees of the Company, AmeriPath or the Subsidiaries used in
connection with attending or hosting meetings with prospective purchasers
of the Offered Securities PLUS (B) any travel and other expenses of the
officers and employees of the Company, AmeriPath or the Subsidiaries
incurred by the Purchasers in connection with attending or hosting meetings
with prospective purchasers of the Offered Securities.
(i) In connection with the offering, until the Managers shall have
notified the Company of the completion of the resale of the Offered
Securities, neither the Company nor any of its affiliates has or will,
either alone or with one or more other persons, bid for or purchase for any
account in which it or any of its affiliates has a beneficial interest any
Offered Securities or attempt to induce any person to purchase any Offered
Securities; and neither it nor any of its affiliates will make bids or
purchases for the purpose of creating actual, or apparent, active trading
in, or of raising the price of, the Offered Securities.
(j) For a period of 180 days after the date of the initial offering
of the Offered Securities by the Purchasers, without the prior written
consent of Credit Suisse First Boston LLC, the Company will not offer,
sell, contract to sell, pledge, or otherwise dispose of, directly or
indirectly, any United States dollar-denominated debt securities issued or
guaranteed by the Company and having a maturity of more than one year from
the date of issue. The Company will not at any time offer, sell, contract
to sell, pledge or otherwise dispose of, directly or indirectly, any
securities under circumstances where such offer, sale, pledge, contract or
disposition would cause the exemption afforded by
12
Section 4(2) of the Securities Act to cease to be applicable to the offer
and sale of the Offered Securities.
6. CONDITIONS OF THE OBLIGATIONS OF THE PURCHASERS. The obligations of
the several Purchasers to purchase and pay for the Offered Securities will be
subject to the accuracy of the representations and warranties on the part of the
Company herein, to the accuracy of the statements of officers of the Company
made pursuant to the provisions hereof, to the performance in all material
respects by the Company of its obligations hereunder and to the following
additional conditions precedent:
(a) The Purchasers shall have received letters, dated the date of
this Agreement, of Ernst & Young LLP and Deloitte & Touche LLP in form and
substance satisfactory to the Purchasers concerning the financial and other
information with respect to the Company and AmeriPath set forth in the
Offering Document.
(b) 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 business, assets, operations,
condition (financial or other) or prospects of the Company, AmeriPath and
the Subsidiaries taken as a whole which, in the judgment of either of the
Managers, is material and adverse and makes it impractical or inadvisable
to proceed with completion of the offering or the sale of and payment for
the Offered Securities; (ii) any downgrading in the rating of any debt
securities of the Company or AmeriPath by any "nationally recognized
statistical rating organization" (as defined for purposes of Rule 436(g)
under the Securities Act), or any public announcement that any such
organization has under surveillance or review its rating of any debt
securities of the Company or AmeriPath (other than an announcement with
positive implications of a possible upgrading, and no implication of a
possible downgrading, of such rating) or any announcement that the Company
or AmeriPath has been placed on negative outlook; (iii) any change in U.S.
or international financial, political or economic conditions or currency
exchange rates or exchange controls as would, in the judgment of either of
the Managers, be likely to prejudice materially the success of the proposed
issue, sale or distribution of the Offered Securities, whether in the
primary market or in respect of dealings in the secondary market; (iv) any
material suspension or material 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 or AmeriPath on any exchange or in the
over-the-counter market; (v) any banking moratorium declared by U.S.
Federal or New York authorities; (vi) any major disruption of settlements
of securities or clearance services in the United States or (vii) any
attack on, outbreak or escalation of hostilities or act of terrorism
involving the United States, any declaration of war by Congress or any
other national or international calamity or emergency if, in the judgment
of either of the Managers, the effect of any such attack, outbreak,
escalation, act, declaration, calamity or emergency makes it impractical or
inadvisable to proceed with completion of the offering or sale of and
payment for the Offered Securities.
13
(c) The Purchasers shall have received an opinion, dated the Closing
Date, of Reboul, XxxXxxxxx, Xxxxxx & Xxxxxxx, counsel for the Company,
substantially in the form attached hereto as Exhibit A.
(d) The Purchasers shall have received an opinion, dated the Closing
Date, of Xxxxxx & Bird, counsel for AmeriPath, substantially in the form
attached hereto as Exhibit B.
(e) The Purchasers shall have received opinions, dated the Closing
Date, of local counsel from such jurisdictions and in such a form as may be
reasonably requested by the Purchasers and their counsel.
(f) The Purchasers shall have received an opinion dated the Closing
Date, of Winston & Xxxxxx, special regulatory counsel for the Company,
substantially in the form of Exhibit C.
(g) The Purchasers shall have received from Cravath, Swaine & Xxxxx,
counsel for the Purchasers, such opinion or opinions, dated the Closing
Date, with respect to the incorporation of the Company and AmeriPath, the
validity of the Offered Securities, the Offering Circular, the exemption
from registration for the offer and sale of the Offered Securities by the
Company to the several Purchasers and the resales by the several Purchasers
as contemplated hereby and other related matters as the Managers may
require, 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.
(h) The Purchasers shall have received a certificate, dated the
Closing Date, of the President or any Vice President of the Company in
which such officer shall state on behalf of the Company that the
representations and warranties of the Company in this Agreement are true
and correct, that the Company 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, and that, subsequent to the date of the
most recent financial statements in the Offering Document, there has been
no material adverse change, nor any development or event involving a
prospective material adverse change in the business, assets, operations,
condition (financial or otherwise) or prospects of the Company, except as
set forth in or contemplated by the Offering Document or as described in
such certificate.
(i) The Purchasers shall have received a certificate, dated the
Closing Date, of the President or any Vice President and a principal
financial or accounting officer of AmeriPath in which such officers shall
state on behalf of AmeriPath that the representations and warranties of the
Company in this Agreement that relate to AmeriPath are true and correct,
and that, subsequent to the date of the most recent financial statements in
the Offering Document, there has been no material adverse change, nor any
development or event involving a prospective material adverse change in the
business, assets, operations, condition (financial or otherwise) or
prospects of AmeriPath and the Subsidiaries taken as a whole, except as set
forth in or contemplated by the Offering Document or as described in such
certificate.
14
(j) The Purchasers shall have received letters, dated the Closing
Date, of Ernst & Young LLP and Deloitte & Touche LLP, which meet 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 the Closing Date for the purposes of this subsection.
(k) The Merger shall have occurred or shall occur substantially
simultaneously with the closing of the purchase and sale of the Offered
Securities.
The Company will furnish the Purchasers with such conformed copies of such
opinions, certificates, letters and documents as the Purchasers reasonably
request. The Managers may in their sole discretion waive on behalf of the
Purchasers compliance with any conditions to the obligations of the Purchasers
hereunder.
7. INDEMNIFICATION AND CONTRIBUTION. (a) The Company will indemnify and
hold harmless each Purchaser, its partners, directors and officers and each
person, if any, who controls such Purchaser within the meaning of Section 15 of
the Securities Act, against any losses, claims, damages or liabilities, joint or
several, to which such Purchaser may become subject, under the Securities Act or
the Exchange Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon any
breach of any of the representations and warranties of the Company contained
herein or any untrue statement or alleged untrue statement of any material fact
contained in the Offering Document, or any amendment or supplement thereto, or
any related preliminary offering circular, or arise out of or are based upon the
omission or alleged omission to state therein a material fact necessary in order
to make the statements therein, in light of the circumstances under which they
were made, not misleading, including any losses, claims, damages or liabilities
arising out of or based upon the Company's failure to perform its obligations
under Section 5(a) of this Agreement, and will reimburse each Purchaser for any
legal or other expenses reasonably incurred by such Purchaser in connection with
investigating or defending any such loss, claim, damage, liability or action as
such expenses arc 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 Purchaser through the Managers specifically for use therein, it
being understood and agreed that the only such information consists of the
information described as such in subsection (b) below; AND PROVIDED, FURTHER
that the indemnity agreement contained in this paragraph (a) shall not inure to
the benefit of any Purchaser to the extent that (i) a copy of the Offering
Circular as then amended or supplemented was not sent or given to a person to
whom the Purchaser sold the Offered Securities and (ii) such loss, claim, damage
or liability of or with respect to such Purchaser or any affiliate, partner,
director, officer or controlling person thereof arises out of or is based upon
an untrue statement or alleged untrue statement in or omission or alleged
omission from such Preliminary Offering Circular that was corrected in the
Offering Circular as then amended or supplemented, unless such failure to
deliver the Offering Circular as then amended or supplemented was a result of
non-compliance by the Company with the provisions of Section 5(a), and so long
as the Offering Circular and any amendment or supplement thereto was provided by
the Company to the Purchasers in the requisite quantity and on a timely basis to
permit delivery on or prior to the written confirmation of the sale of such
Offered Securities.
15
(b) Each Purchaser will severally and not jointly indemnify and hold
harmless the Company and the Guarantors, its directors and officers and each
person, if any, who controls the Company within the meaning of Section 15 of the
Securities Act, against any losses, claims, damages or liabilities to which the
Company or any Guarantor may become subject, under the Securities Act or the
Exchange 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 Offering Document, or any amendment or supplement thereto, or any related
preliminary offering circular, or arise out of or are based upon the omission or
the alleged omission to state therein a material fact necessary in order to make
the statements therein, in the light of the circumstances under which they were
made, 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 Purchaser through the Managers specifically for
use therein, and will reimburse any legal or other expenses reasonably incurred
by the Company in connection with investigating or defending any such loss,
claim, damage, liability or action as such expenses are incurred ; PROVIDED,
HOWEVER, that the Purchasers shall not be liable for any losses, claims, damages
or liabilities arising out of or based upon the Company's failure to perform its
obligations under Section 5(a) of this Agreement. The parties agree that the
only such information furnished by any Purchaser consists of the following
information in the Offering Document furnished on behalf of each Purchaser: the
first paragraph under the caption "Plan of Distribution".
(c) 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 the indemnifying party under
subsection (a) or (b) above, notify the indemnifying party of the commencement
thereof; but the omission so to notify the indemnifying party will not relieve
it from any liability which it may have under subsection (a) or (b) above except
to the extent that it has been materially prejudiced (through the forfeiture of
substantive rights or defenses) by such failure; and provided further that the
failure to notify the indemnifying party shall not relieve it from any liability
that it may have to an indemnified party otherwise than under subsection (a) or
(b) above. In case any such action is brought against any indemnified party and
it notifies the 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
indemnified party with respect to such suit or the transactions giving rise
thereto), 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, which consent shall not be unreasonably withheld, 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 includes (i) 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 or failure to act by or on behalf of any indemnified party.
16
(d) If the indemnification provided for in this Section is unavailable or
insufficient to hold harmless an indemnified party under subsection (a) or (b)
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) or (b) above (i) in such proportion as
is appropriate to reflect the relative benefits received by the Company on the
one hand and the Purchasers on the other from the offering of the Offered
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 on the one hand and the Purchasers 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 on the one hand
and the Purchasers on the other shall he deemed to be in the same proportion as
the total net proceeds from the offering (before deducting expenses) received by
the Company bear to the total discounts and commissions received by the
Purchasers from the Company under this Agreement. 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 or the Purchasers
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 (d) 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 (d). Notwithstanding the
provisions of this subsection (d), no Purchaser shall be required to contribute
any amount in excess of the amount by which the total discounts and commissions
received by such Purchaser exceeds the amount of any damages which such
Purchaser has otherwise been required to pay by reason of such untrue or alleged
untrue statement or omission or alleged omission. The Purchasers' obligations in
this subsection (d) to contribute are several in proportion to their respective
purchase obligations and not joint.
(e) The obligations of the Company under this Section shall be in addition
to any liability which the Company may otherwise have and shall extend, upon the
same terms and conditions, to each person, if any, who controls any Purchaser
within the meaning of the Securities Act or the Exchange Act; and the
obligations of the Purchasers under this Section shall be in addition to any
liability which the respective Purchasers may otherwise have and shall extend,
upon the same terms and conditions, to each person, if any, who controls the
Company within the meaning of the Securities Act or the Exchange Act.
8. DEFAULT OF PURCHASERS. If any Purchaser or Purchasers default in their
obligations to purchase Offered Securities hereunder and the aggregate principal
amount of the Offered Securities that such defaulting Purchaser or Purchasers
agreed but failed to purchase does not exceed 10% of the total principal amount
of the Offered Securities, the Managers may make arrangements satisfactory to
the Company for the purchase of such Offered Securities by other persons,
including any of the Purchasers, but if no such arrangements are made by the
Closing Date, the non-defaulting Purchasers shall be obligated severally, in
proportion to their respective commitments hereunder, to purchase the Securities
that such defaulting Purchasers agreed but failed to purchase. If any Purchaser
or Purchasers so default and the aggregate principal amount of the Offered
Securities with respect to which such default or defaults occur exceeds 10% of
the
17
total principal amount of the Offered Securities and arrangements satisfactory
to the Managers and the Company 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 Purchaser or
the Company, except as provided in Section 9. As used in this Agreement, the
term "Purchaser" includes any person substituted for a Purchaser under this
Section. Nothing herein will relieve a defaulting Purchaser from liability for
its default.
9. SURVIVAL OF CERTAIN REPRESENTATIONS AND OBLIGATIONS. The respective
indemnities, agreements, representations, warranties and other statements of the
Company or its officers and of the several Purchasers 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 Purchaser, 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 this Agreement is terminated pursuant
to Section 8 or if for any reason the purchase of the Offered Securities by the
Purchasers is not consummated, the Company shall remain responsible for the
expenses to be paid or reimbursed by it pursuant to Section 5 and the respective
obligations of the Company and the Purchasers pursuant to Section 7 shall remain
in effect. I the purchase of the Offered Securities by the Purchasers 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), (v), (vi) or (vii) of Section 6(b), the Company will
reimburse the Purchasers for all out-of-pocket expenses (including fees and
disbursements of counsel) reasonably incurred by them in connection with the
offering of the Offered Securities.
10. NOTICES. All communications hereunder will be in writing and, if sent
to the Purchasers will be mailed, delivered or telegraphed and confirmed to the
Purchasers, c/o Credit Suisse First Boston LLC, Xxxxxx Xxxxxxx Xxxxxx, Xxx Xxxx,
XX, 00000-0000, Attention: Transactions Advisory Group, or, if sent to the
Company, will be mailed, delivered or telegraphed and confirmed to it at 0000
Xxxxxx Xxxx, Xxxxx 000, Xxxxxxx Xxxxx, XX 00000, Attention: Chief Executive
Officer, with a copy to Welsh, Xxxxxx, Xxxxxxxx & Xxxxx IX, L.P., 000 Xxxx
Xxxxxx, Xxxxx 0000, Xxx Xxxx, XX 00000, Attention: Xxxx X. Xxxxxxx and
X. Xxxxx Xxxxxxx (or to such other addresses as the parties hereto may designate
by notice given hereunder); PROVIDED, HOWEVER, that any notice to a Purchaser
pursuant to Section 7 will be mailed, delivered or telegraphed and confirmed to
such Purchaser.
11. SUCCESSORS. This Agreement will inure to the benefit of and be binding
upon the parties hereto and their respective successors and the controlling
persons referred to in Section 7, and no other person will have any right or
obligation hereunder, except that holders of Offered Securities shall be
entitled to enforce the agreements for their benefit contained in the second and
third sentences of Section 5(b) hereof against the Company as if such holders
were parties hereto.
12. REPRESENTATION OF PURCHASERS. The Managers will act for the several
Purchasers in connection with this purchase, and any action under this Agreement
taken by the Managers will be binding upon all the Purchasers.
18
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 parties hereto hereby submit 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.
[the remainder of this page is blank]
If the foregoing is in accordance with the Purchasers' understanding of our
agreement, kindly sign and return to the Company one of the counterparts hereof,
whereupon it will become a binding agreement between the Company and the several
Purchasers in accordance with its terms.
Very truly yours,
XXX ACQUISITION CORP.
By /s/ X. Xxxxx Xxxxxxx
-----------------------
Name: X. Xxxxx Xxxxxxx
Title: Vice President
The foregoing Purchase Agreement is
hereby confirmed, accepted and agreed
to as of the date first above written.
CREDIT SUISSE FIRST BOSTON LLC
By
---------------------------
Name:
Title:
DEUTSCHE BANK SECURITIES INC.
By
---------------------------
Name:
Title:
WACHOVIA SECURITIES, INC.
By
---------------------------
Name:
Title:
If the foregoing is in accordance with the Purchasers' understanding of our
agreement, kindly sign and return to the Company one of the counterparts hereof,
whereupon it will become a binding agreement between the Company and the several
Purchasers in accordance with its terms.
Very truly yours,
XXX ACQUISITION CORP.
By
-----------------------
Name:
Title:
The foregoing Purchase Agreement is
hereby confirmed, accepted and agreed
to as of the date first above written.
CREDIT SUISSE FIRST BOSTON LLC
By /s/ Xxxxxx X. Xxxxx
---------------------------
Name: Xxxxxx X. Xxxxx
Title: Managing Director
DEUTSCHE BANK SECURITIES INC.
By
---------------------------
Name:
Title:
WACHOVIA SECURITIES, INC.
By
---------------------------
Name:
Title:
19
If the foregoing is in accordance with the Purchasers' understanding of our
agreement, kindly sign and return to the Company one of the counterparts hereof,
whereupon it will become a binding agreement between the Company and the several
Purchasers in accordance with its terms.
Very truly yours,
XXX ACQUISITION Corp.
By
-----------------------
Name:
Title:
The foregoing Purchase Agreement is
hereby confirmed, accepted and agreed
to as of the date first above written.
CREDIT SUISSE FIRST BOSTON LLC
By
---------------------------
Name:
Title:
DEUTSCHE BANK SECURITIES INC.
By /s/ Xxxxxxx X. Xxxxx
---------------------------
Name: Xxxxxxx X. Xxxxx
Title: Managing Director
WACHOVIA SECURITIES, INC.
By
---------------------------
Name:
Title:
19
If the foregoing is in accordance with the Purchasers' understanding of our
agreement, kindly sign and return to the Company one of the counterparts hereof,
whereupon it will become a binding agreement between the Company and the several
Purchasers in accordance with its terms.
Very truly yours,
XXX ACQUISITION Corp.
By
-----------------------
Name:
Title:
The foregoing Purchase Agreement is
hereby confirmed, accepted and agreed
to as of the date first above written.
CREDIT SUISSE FIRST BOSTON LLC
By
---------------------------
Name:
Title:
DEUTSCHE BANK SECURITIES INC.
By
---------------------------
Name:
Title:
WACHOVIA SECURITIES, INC.
By /s/ Xxxxx X. Xxxxxx XXX
---------------------------
Name: Xxxxx X. Xxxxxx XXX
Title: Vice President
SCHEDULE A
PRINCIPAL AMOUNT OF
PURCHASER OFFERED SECURITIES
--------- -------------------
Credit Suisse First Boston LLC..... $ 143,550,000
Deutsche Bank Securities Inc. ...... $ 103,950,000
Wachovia Securities, Inc. $ 27,500,000
-------------------
Total $ 275,000,000
SCHEDULE B
LIST OF SUBSIDIARIES
HOLDERS OF
OUTSTANDING
FORM CAPITAL
JURISDICTION OF OF STOCK/EQUITY FOREIGN
NAME OF SUBSIDIARY ORGANIZATION ORGANIZATION INTERESTS QUALIFICATIONS
---------------------------------- --------------- ------------ ----------------- --------------
3-Gen Diagnostic Laboratories, Inc. Utah corporation Strigen, Inc. None
X. Xxxxxxx Xxxxxxxx, M.D., New York professional Xxxxxx X. Xxxxx, None
Dermatopathology, P.C. corporation M.D. (Nominee)+
AmeriPath 5.01(a) Corporation Texas non-profit AmeriPath, Inc. None
corporation (Sole Member)
AmeriPath Carrollton, Inc. Georgia corporation AmeriPath, Inc. None
AmeriPath Cincinnati, Inc. Ohio corporation AmeriPath Ohio None
Trust**
AmeriPath Cleveland, Inc. Ohio corporation AmeriPath Ohio None
Trust**
AmeriPath Consolidated Labs, Inc. Florida corporation AmeriPath, Inc. None
AmeriPath Consulting Pathology North Carolina professional X. Xxxxxxx Xxxxx, None
Services, P. A. association M.D. (Nominee)+
AmeriPath Florida, Inc. Florida corporation AmeriPath, Inc. New York
AmeriPath Indemnity, Ltd. Cayman Islands corporation AmeriPath, Inc. None
AmeriPath Indiana, LLC Indiana limited AmeriPath, Inc. None
liability
company
AmeriPath Indianapolis, P.C. Indiana professional Xxxxxxx X. None
corporation Xxxxxxx, M.D.
(nominee)+
AmeriPath Kentucky, Inc. Kentucky corporation AmeriPath, Inc. None
AmeriPath Lubbock Corporation Texas non-profit AmeriPath, Inc. None
5.01 (a) Corporation corporation (Sole Member)
AmeriPath Marketing USA, Inc. Florida corporation AmeriPath, Inc. Kentucky
AmeriPath Michigan, Inc. Michigan corporation AmeriPath, Inc. None
AmeriPath Milwaukee, S.C. Wisconsin service Xxxxx X. Xxxxx, None
corporation M.D. (Nominee)+
HOLDERS OF
OUTSTANDING
FORM CAPITAL
JURISDICTION OF OF STOCK/EQUITY FOREIGN
NAME OF SUBSIDIARY ORGANIZATION ORGANIZATION INTERESTS QUALIFICATIONS
---------------------------------- --------------- ------------ ----------------- --------------
AmeriPath Mississippi, Inc. Mississippi corporation AmeriPath, Inc. None
AmeriPath New England, Inc. Delaware corporation PathSOURCE, Inc. Massachusetts
AmeriPath New York, Inc. Delaware corporation AmeriPath, Inc. New York
AmeriPath North Carolina, Inc. North Carolina corporation AmeriPath, Inc. None
AmeriPath Ohio, Inc. Delaware corporation AmeriPath, Inc. None
AmeriPath PAT 5.01(a) Corporation Texas non-profit AmeriPath, Inc. None
corporation (Sole Member)
AmeriPath PCC, Inc. Ohio corporation AmeriPath Ohio None
Trust**
AmeriPath Pennsylvania, Inc. Pennsylvania corporation AmeriPath, Inc. None
AmeriPath Philadelphia, Inc. New Jersey corporation AmeriPath, Inc. Pennsylvania
AmeriPath Pittsburgh, P.C. Pennsylvania professional Xxxx Xxxxx, M.D, None
corporation (Nominee)+
AmeriPath San Antonio 5.01(a) Texas non-profit AmeriPath, Inc. None
Corporation corporation (Sole Member)
AmeriPath SC, Inc. South Carolina corporation AmeriPath, Inc. None
AmeriPath Severance 5.01(a) Texas non-profit AmeriPath, Inc. None
Corporation corporation (Sole Member)
AmeriPath Texas, LP Delaware limited AmeriPath, LLC Texas
partnership (1% General
Partner)
API No. 2, LLC
(99% Limited
Partner)
AmeriPath Youngstown Labs, Inc. Ohio corporation AmeriPath Ohio, None
Inc.
AmeriPath Youngstown, Inc. Ohio corporation AmeriPath Ohio None
Trust**
AmeriPath, LLC Delaware limited AmeriPath, Inc. Texas
liability (Sole Member)
company
HOLDERS OF
OUTSTANDING
FORM CAPITAL
JURISDICTION OF OF STOCK/EQUITY FOREIGN
NAME OF SUBSIDIARY ORGANIZATION ORGANIZATION INTERESTS QUALIFICATIONS
---------------------------------- --------------- ------------ ----------------- --------------
AmeriPath, Wisconsin, Inc. Wisconsin corporation AmeriPath, Inc.* None
Anatomic Pathology Services, Inc. Oklahoma corporation AmeriPath, Inc. None
API No. 2., LLC Delaware limited AmeriPath, LLC None
liability
company
Arizona Pathology Group, Inc. Arizona corporation Strigen, Inc. None
Arlington Pathology Association Texas non-profit AmeriPath, Inc. None
5.01(a) Corporation corporation (Sole Member)
Xxx X. Xxxxxx, M.D., F.C.A.P., Mississippi corporation PCA of Columbus, None
Inc. Inc.
California Pathology Consultants Tennessee corporation PCA/APR California
of America, Inc. Acquisition Corp.
Colorado Diagnostic Laboratory, Colorado limited Colorado Pathology None
LLC liability Consultants, P.C.
company
Colorado Pathology Consultants, Colorado professional Xxxxxx Xxxxxxx, None
P.C, corporation M.D. (Nominee)+
Columbus Pathology Mississippi general CPA I, Inc. None
Associates partnership (50% General
Partner)
CPA II, Inc.
(50% General
Partner)
Consulting Pathologists of Pennsylvania professional Xxxx Xxxxx, M.D. None
Pennsylvania, P.C. corporation (Nominee)+
CPA I, Inc. Tennessee corporation Xxx X. Xxxxxx, None
M.D., F.C.A.P.,
Inc.
CPA II, Inc. Tennessee corporation Xxxx X. Xxxxxx, None
M.D., F.C.A.P.,
Inc.
Dermalopathology of Wisconsin, Wisconsin service Xxxxx X. Xxxxx, None
S.C. corporation M.D. (Nominee)+
Dermatopathology Services, Inc. Alabama corporation AmeriPath, Inc. None
Dermpath, Inc. Delaware corporation PathSOURCE, Inc. New York
DFW 5.01(a) Corporation Texas non-profit AmeriPath, Inc. None
corporation (Sole Member)
HOLDERS OF
OUTSTANDING
FORM CAPITAL
JURISDICTION OF OF STOCK/EQUITY FOREIGN
NAME OF SUBSIDIARY ORGANIZATION ORGANIZATION INTERESTS QUALIFICATIONS
---------------------------------- --------------- ------------ ----------------- --------------
Diagnostic Pathology Management Oklahoma corporation AmeriPath, Inc. None
Services, Inc.
Diagnostic Pathology Services, Oklahoma professional Xxxxx Xxxxx None
P.C. corporation Xxxxxx, M.D.
(Nominee)+
Georgia Pathology Consultants Tennessee corporation PCA/APR Georgia
of America, Inc. Acquisition Corp.
Institute for Dermatopathology, Pennsylvania professional Xxxxxxx X. Xxxxxx, None
P.C. corporation M.D, (50%)
(Nominee)+ Xxxxx X.
Xxxxxxx, M.D.
(50%) (Nominee)+
X. Xxxxx Xxxxx, M.D., Inc. Georgia corporation AmeriPath, Inc. None
X.X. Xxxxx, M.D. and Michigan professional Xxxx Xxxxx, M.D. None
Associates/AmeriPath, P.C. corporation (Nominee)
Xxxxxxx X. Xxxxx, M.D., Inc. California corporation Xx Xxxxxx, M.D. None
(Nominee)+
Xxxx X. Xxxxxx, Xx., M.D., Mississippi corporation PCA of Columbus, None
F.C.A.P., Inc. Inc.
Xxxxxxx X. Xxxxxx, M.D., Inc. Georgia corporation AmeriPath, Inc. None
Xxxxxxxxx Xxx, M.D., Inc. Georgia corporation AmeriPath, Inc. None
Xxxxxxxxxx Pathology, P.A. North Carolina professional Xxxxxxx X. None
association Xxxxxxxxxx M.D.
(Nominee)+
NAPA 5.01(a) Corporation Texas non-profit AmeriPath, Inc. None
corporation (Sole Member)
HOLDERS OF
OUTSTANDING
FORM CAPITAL
JURISDICTION OF OF STOCK/EQUITY FOREIGN
NAME OF SUBSIDIARY ORGANIZATION ORGANIZATION INTERESTS QUALIFICATIONS
---------------------------------- --------------- ------------ ----------------- --------------
Nuclear Medicine and Pathology Georgia general Xxxxxxx X. Xxxxxx, None
Associates partnership M.D., Inc. (16%)
Xxxxx X.
Xxxxxxxxx, M.D.,
Inc. (22%)
Xxxxxx X. Xxxxxx,
M.D., Inc. (25%)
X. Xxxxx Xxxxx,
M.D., Inc. (20%)
Xxxxxxxxx Xxx,
M.D., Inc. (17%)
Ocmulgee Medical Pathology Georgia corporation AmeriPath, Inc. None
Association, Inc.
X'Xxxxx Medical Pathology Georgia corporation AmeriPath, Inc. None
Association, Inc.
Palms of Pasadena Pathology, Inc. Florida corporation Xxxxxx X. Xxxxx, None
M.D., (Nominee)+
Pathology Affiliated Services, Texas corporation AmeriPath Texas, None
Inc. LP
Pathology Consultants of Tennessee corporation AmeriPath, Inc. None
America, Inc.
PathSOURCE, Inc. Delaware corporation Pathology New York
Consultants of
America, Inc.
PCA of Columbus, Inc. Tennessee corporation Pathology Mississippi
Consultants of
America, Inc.
PCA of Denver, Inc. Tennessee corporation Pathology Colorado
Consultants of
America, Inc.
PCA of Los Gatos, Inc. Tennessee corporation Pathology California
Consultants of
America, Inc.
PCA of Memphis, Inc. Tennessee corporation Pathology None
Consultants of
America, Inc.
PCA of Nashville, Inc. Tennessee corporation PCA/APR West Virginia
Acquisition Corp.
HOLDERS OF
OUTSTANDING
FORM CAPITAL
JURISDICTION OF OF STOCK/EQUITY FOREIGN
NAME OF SUBSIDIARY ORGANIZATION ORGANIZATION INTERESTS QUALIFICATIONS
---------------------------------- --------------- ------------ ----------------- --------------
PCA of St. Xxxxx XX, Inc. Tennessee corporation PCA/APR Missouri
Acquisition Corp.
PCA Southeast II, Inc. Tennessee corporation PCA/APR Georgia
Acquisition Corp. Mississippi
PCA/APR Acquisition Corp. Tennessee corporation Pathology None
Consultants of
America, Inc.
Xxxxx X. Xxxxxxxxx, M.D., Inc. Georgia corporation AmeriPath, Inc. None
Rocky Mountain Pathology, L.L.C Utah limited Strigen, Inc. None
liability
company
Xxxxxx X. Xxxxxx, MD., Inc. Georgia corporation AmeriPath, Inc. None
Shoals Pathology Associates, Inc. Alabama corporation AmeriPath, Inc. None
Xxxxxxx Pathology 5.01(a) Texas non-profit AmeriPath, Inc. None
Corporation corporation (Sole Member)
Strigen, Inc. Utah corporation AmeriPath, Inc. None
TID Acquisition Corp. Delaware corporation PathSOURCE, Inc. Pennsylvania
Tulsa Diagnostics, P.C. Oklahoma professional Xxxxx Xxxxx None
corporation Xxxxxx, M.D.
(Nominee) +
TXAR 5.01(a) Corporation Texas non-profit AmeriPath, Inc. None
corporation (Sole Member)
EXHIBIT A
March [ ], 2003
Credit Suisse First Boston LLC
Deutsche Bank Securities Inc.
Wachovia Securities, Inc.
c/o Credit Suisse First Boston LLC
Xxxxxx Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Xxx Xxxxxxxxxxx Corp.
10 1/2% SENIOR SUBORDINATED NOTES DUE 2013
Ladies and Gentlemen:
We have acted as special counsel to (i) AmeriPath Holdings, Inc.
(formerly known as Xxx Holding Company), a Delaware corporation (the "PARENT"),
(ii) Xxx Xxxxxxxxxxx Corp., a Delaware corporation (the "COMPANY"), (iii)
AmeriPath, Inc., a Delaware corporation ("AMERIPATH"), (iv) the subsidiaries of
AmeriPath listed on Schedule I hereto under the heading "Delaware Corporate
Guarantors" (the "DELAWARE CORPORATE GUARANTORS"), (v) the subsidiaries of
AmeriPath listed on Schedule I hereto under the heading "Delaware LLC
Guarantors" (the "DELAWARE LLC GUARANTORS"), (vi) AmeriPath Texas, LP, a
Delaware limited partnership (the "DELAWARE LP GUARANTOR"), and (vii) the
subsidiaries of AmeriPath listed on Schedule I hereto under the heading "Other
Guarantors" (the "OTHER GUARANTORS" and, collectively with the Delaware
Corporate Guarantors, the Delaware LLC Guarantors and the Delaware LP Guarantor,
the "GUARANTORS"), in connection with the issuance and sale by the Company of
$275,000,000 aggregate principal amount of 10 1/2% Senior Subordinated Notes due
2013 of the Company (the "OFFERED SECURITIES") to the Initial Purchasers (the
"INITIAL PURCHASERS") named in the Purchase Agreement, dated as of March 13,
2003, among the Company and the Initial Purchasers (the "PURCHASE AGREEMENT").
The Parent, the Company, AmeriPath, the Delaware Corporate Guarantors, the
Delaware LLC Guarantors and the Delaware LP Guarantor arc sometimes referred to
herein collectively as the "COVERED TRANSACTION PARTIES". The Covered
Transaction Parties and the Other Guarantors are sometimes referred to herein
collectively as the "TRANSACTION PARTIES". This opinion is being delivered to
you pursuant to Section 6(c) of the Purchase Agreement. Capitalized terms used
and not otherwise defined herein have the meanings assigned to them in the
Purchase Agreement.
In connection with this opinion, we have examined originals, or copies certified
or otherwise identified to our satisfaction, of such documents, records,
certificates and other instruments as we have deemed necessary for purposes of
this opinion, including, without limitation:
(a) the Purchase Agreement;
(b) the Indenture;
(c) the Registration Rights Agreement;
(d) the Guaranties;
(e) the Temporary Regulation S Global Securities and the Restricted
Global Securities;
(f) the
Merger Agreement;
(g) the Certificate of Incorporation and Bylaws of each of the
Parent, the Company, AmeriPath and each of the Delaware Corporate
Guarantors;
(h) the Certificate of Formation and the Limited Liability Company
Agreement of each of the Delaware LLC Guarantors;
(i) the Certificate of Limited Partnership and the Agreement of
Limited Partnership of the Delaware LP Guarantor;
(j) the Offering Circular;
(k) the Unanimous Written Consent of the Board of Directors of the Company
dated as of March 13, 2003 relating to the Transaction Documents (as defined
below) and the transactions contemplated thereby;
(1) the Unanimous Written Consents of the Board of Directors of the Company
dated as of December 4, 2002 and March 26, 2003 relating to the
Merger Agreement
and the transactions contemplated thereby;
(m) the Unanimous Written Consents of the Board of Directors of the Parent
dated as of December 4, 2002 and March 21, 2002 relating to the
Merger Agreement
and the transactions contemplated thereby; and
(n) the Written Consents of the Sole Stockholder of the Company dated as of
December 4, 2002 and March 26, 2003 relating to the transactions contemplated by
the
Merger Agreement.
The documents referred to in the foregoing clauses (a) through (d) are sometimes
referred to herein collectively as the "TRANSACTION DOCUMENTS". The documents
referred to in the foregoing clauses (g) through (i) are sometimes referred to
herein collectively as the "ORGANIZATIONAL DOCUMENTS".
In our examination, and for all purposes of the opinions expressed herein, we
have assumed that (i) all documents submitted to us as originals are authentic
and complete and all documents submitted to us as copies are complete and
conform to authentic originals of such documents; (ii) all signatures appearing
in all documents shown to us, including, without limitation, the Transaction
Documents, are valid and genuine; and (iii) with respect to certain factual
matters, the representations and warranties in the Purchase Agreement and the
Merger Agreement and the information on the schedules to the Purchase Agreement
and the
Merger Agreement are accurate and complete in all respects. We have also
relied, without independent investigation, upon certificates of public officials
and of officers of the Transaction Parties as we have deemed necessary for
purposes of expressing the opinions set forth herein.
Based on the foregoing and subject to the assumptions, exceptions,
qualifications and limitations hereinafter set forth, we are of the opinion
that:
1. Each of the Parent and the Company has been duly incorporated and
is a corporation validly existing and in good standing under the laws of the
State of Delaware. Based solely on certificates provided by the Secretary of
State of the State of Delaware, (i) each of AmeriPath and the Delaware Corporate
Guarantors is a corporation validly existing and in good standing under the laws
of the State of Delaware, (ii) each of the Delaware LLC Guarantors is a limited
liability company validly existing and in good standing under the laws of the
State of Delaware and (iii) the Delaware LP Guarantor is a limited partnership
validly existing and in good standing under the laws of the State of Delaware.
2. Based solely on certificates provided by the Secretaries of State
(or other relevant State officials) of the States listed on Schedule II hereto,
the Transaction Parties listed on Schedule II hereto are qualified to do
business as foreign corporations, limited liability companies, limited
partnerships or other entities in each of the States listed opposite their
respective names on Schedule II hereto.
3. Each of the Parent, the Company, AmeriPath and the Delaware
Corporate Guarantors has all necessary corporate power and authority to execute
and deliver each of the Transaction Documents to which it is a party and to
perform its obligations thereunder. Each of the Delaware LLC Guarantors has all
necessary limited liability company power and authority to execute and deliver
each of the Transaction Documents to which it is a party and to perform its
obligations thereunder. The Delaware LP Guarantor has all necessary partnership
power and authority to execute and deliver each of the Transaction Documents to
which it is a party and to perform its obligations thereunder. Each of the
Parent, the Company and AmeriPath has the requisite corporate power and
authority to own its properties and conduct its business as described in the
Offering Circular.
4. The execution, delivery and performance by each of the Parent,
the Company, AmeriPath and the Delaware Corporate Guarantors of the Transaction
Documents to which it is a party have been duly authorized by all requisite
corporate action on the part of such Transaction Party, and such Transaction
Party has duly executed and delivered such Transaction Documents. The execution,
delivery and performance by each of the Delaware LLC Guarantors of the
Transaction Documents to which it is a party have been duly authorized by all
requisite limited liability company action on the part of such Transaction
Party, and such Transaction
Party has duly executed and delivered such Transaction Documents. The execution,
delivery and performance by the Delaware LP Guarantor of the Transaction
Documents to which it is a party have been duly authorized by all requisite
partnership action on the part of such Transaction Party, and such Transaction
Party has duly executed and delivered such Transaction Documents. The execution,
delivery and performance by the Parent and the Company of the Merger Agreement
have been duly authorized by all requisite corporate action on the part of the
Parent and the Company, and the Parent and the Company have duly executed and
delivered the Merger Agreement.
5. The Offered Securities have been duly authorized, executed,
issued and delivered by the Company and conform in all material respects to the
description thereof contained in the Offering Circular. Assuming that the
Offered Securities have been duly authenticated by the Trustee and paid for and
delivered in accordance with the terms of the Purchase Agreement and the
Indenture, the Offered Securities constitute valid and legally binding
obligations of the Company enforceable against the Company in accordance with
their terms.
6. The Transaction Documents constitute valid and legally binding
obligations of the Covered Transaction Parties party thereto enforceable against
each of them in accordance with their terms. The Merger Agreement constitutes a
valid and legally binding obligation of the Parent and of the Company
enforceable against each of them in accordance with its terms. Pursuant to
Section 259(a) of the General Corporation Law of the State of Delaware, upon
consummation of the Merger, all debts, liabilities and duties of the Company,
including those under the Indenture and Registration Rights Agreement, shall
attach to AmeriPath and may be enforced against it to the same extent as if said
debts, liabilities and duties had been incurred or contracted by it.
7. No consent, approval, authorization or order of, or filing with,
any governmental agency or body of the United States of America or the State of
New York or any governmental agency or body of the State of Delaware acting
pursuant to the General Corporation Law of the State of Delaware, the Limited
Liability Company Act of the State of Delaware or the Revised Uniform Limited
Partnership Act of the State of Delaware or, to our knowledge, any Federal or
New York State court or any court of the State of Delaware acting pursuant to
the General Corporation Law of the State of Delaware, the Limited Liability
Company Act of the State of Delaware or the Revised Uniform Limited Partnership
Act of the State of Delaware is required for the execution and delivery by each
of the Transaction Parties of each of the Transaction Documents to which it is a
party, the performance by each of the Transaction Parties of its payment
obligations thereunder, the issuance and sale of the Offered Securities by the
Company or the granting of the Guaranties by the Guarantors, except (i) such
consents, approvals, authorizations, orders, or filings under Federal or State
securities laws as may be necessary in connection with the sale of the Offered
Securities and the granting of the Guaranties by the Guarantors (subject to the
opinion set forth in paragraph 10 below); (ii) as may be required under the
Trust Indenture Act; and (iii) those that have been made or obtained and are in
full force and effect or as to which the failure to be made or obtained or to be
in full force and effect would not result, individually or in the aggregate, in
a material adverse effect on the ability of any Transaction Party to perform its
obligations under the Transaction Documents to which it is a party.
8. The Company is not and, after giving effect to the Merger and the
offering and sale of the Offered Securities and the application of the proceeds
thereof as described in the Offering Circular, AmeriPath will not be an
"investment company" as defined in the Investment Company Act.
9. The execution and delivery by each of the Covered Transaction
Parties of each of the Transaction Documents to which it is a party, the
performance by each of the Covered Transaction Parties of its payment
obligations thereunder, the issuance and sale of the Offered Securities by the
Company and the granting of the Guaranties by the Guarantors will not result in
a breach or violation of any of the terms or provisions of, or constitute a
default under, any of the Organizational Documents of the Covered Transaction
Parties. The execution and delivery by each of the Transaction Parties of each
of the Transaction Documents to which it is a party, the performance by each of
the Transaction Parties of its payment obligations thereunder, the issuance and
sale of the Offered Securities by the Company and the granting of the Guaranties
by the Guarantors will not result in a breach or violation of any of the terms
or provisions of, or constitute a default under, (A) any law, rule or regulation
of the United States of America or the State of New York, the General
Corporation Law of the State of Delaware, the Limited Liability Company Act of
the State of Delaware or the Revised Uniform Limited Partnership Act of the
State of Delaware, (B) to our knowledge, any order or decree of any court or
other governmental agency or body of the United States of America or the State
of New York or any governmental agency or body of the State of Delaware acting
pursuant to the General Corporation Law of the State of Delaware, the Limited
Liability Company Act of the State of Delaware or the Revised Uniform Limited
Partnership Act of the State of Delaware or (C) any agreement listed as an
exhibit to (i) AmeriPath's Form 10-K for the year ended December 31, 2001, (ii)
AmeriPath's Form 10-Q for the quarter ended March 31,2002, (iii) AmeriPath's
Form 10-Q for the quarter ended June 30, 2002 or (iv) AmeriPath's Form 10-Q for
the quarter ended September 30, 2002 (collectively, the "MATERIAL AGREEMENTS"),
except for any breach or violation of any Material Agreement that individually
or in the aggregate would not have a material adverse effect on the ability of
any Transaction Party to perform its obligations under the Transaction Documents
to which it is a party. We call to your attention that certain of the Material
Agreements may be governed by the laws of jurisdictions other than the State of
New York. For purposes of the opinion expressed above, we have assumed that the
Material Agreements are governed by and would be interpreted in accordance with
the laws of the State of New York.
10. Assuming the accuracy of the representations and warranties of
the Company contained in paragraph (v) of Section 2 of the Purchase Agreement
and the accuracy of the representations and warranties of the Initial Purchasers
contained in Section 4 of the Purchase Agreement, it is not necessary in
connection with (i) the offer, sale and delivery of the Offered Securities by
the Company to the Initial Purchasers pursuant to the Purchase Agreement or (ii)
any resale of the Offered Securities by the Initial Purchasers made in the
manner contemplated by the Purchase Agreement to register the Offered Securities
under the Securities Act or to qualify the Indenture under the Trust Indenture
Act. The Indenture, however, conforms in all material respects to the
requirements of the Trust Indenture Act and the rules and regulations of the
Commission applicable to an indenture that is qualified thereunder.
11. Except as otherwise disclosed in the Offering Circular, to our
knowledge, without independent investigation, there are no pending or threatened
actions, suits or proceedings against any of the Transaction Parties as to which
there is a probability of an adverse determination and which if adversely
determined would be likely in our judgment to have a material adverse effect on
the ability of Transaction Parties to perform their respective obligations under
the Transaction Documents or which are otherwise material to the Transaction
Parties, taken as a whole, in the context of the sale of the Offered Securities.
12. The statements in the Offering Circular under the captions
"Certain Relationships and Related Transactions", "The Transactions",
"Description of Notes", "Description of Certain Other Indebtedness" and
"Contingent Notes and the Cash Collateral Account--Cash Collateral Account"
insofar as such statements purport to summarize certain terms of the documents
referred to therein, constitute accurate summaries of such terms of such
documents in all material respects; the statements in the Offering Circular
under the caption "Certain United States Federal Income Tax Considerations" to
the extent that they purport to describe matters of law or regulation have been
reviewed by us and fairly summarize in all material respects the matters
described therein.
We have necessarily assumed the correctness and completeness of the statements
contained in the Offering Circular and take no responsibility for the accuracy
or completeness thereof, except to the extent set forth in paragraph 12 above.
Subject to the foregoing, in connection with the Company's preparation of the
Offering Circular, we have participated in conferences with certain officers of
the Company and AmeriPath, the independent public accountants of the Company and
AmeriPath, and the Initial Purchasers and their counsel with regard to the
Offering Circular, and, based upon our examination of the Offering Circular and
our discussions in the above-mentioned conferences, nothing has come to our
attention that would lead us to believe that the Offering Circular (except for
financial statements and schedules and other financial or accounting information
included therein, as to which we expresses no opinion), as of the date of the
Offering Circular or as of the date hereof, contained or contains an untrue
statement of a material fact or omitted or omits to state a 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 opinions are subject to the following assumptions,
exceptions, qualifications and limitations:
A. Our opinions set forth in paragraphs 5 and 6 above are subject to
(i) the effect of any applicable bankruptcy, insolvency, reorganization,
moratorium or similar law affecting creditors' rights generally, including,
without limitation, fraudulent transfer or conveyance laws; (ii) the effect of
public policy considerations or court decisions which may limit rights to obtain
indemnification; and (iii) general principles of equity (including, without
limitation, concepts of materiality, reasonableness, good faith and fair
dealing), regardless of whether such enforceability is considered in a
proceeding in equity or at law. Such opinions are also subject to the following
qualifications: (a) certain remedial provisions of the Transaction Documents are
or may be unenforceable in whole or in part under applicable laws, but the
inclusion of such provisions does not make the remedies afforded by any of the
Transaction Documents inadequate for the practical realization of the rights and
benefits purported to be provided thereby, except for the economic consequences
resulting from any delay imposed by, or
procedures required by, applicable laws; (b) the availability of a decree for
specific performance or an injunction is subject to the discretion of the court
requested to issue any such decree or injunction; and (c) we express no opinion
as to the effect of the laws of any jurisdiction other than the State of New
York that limits the rates of interest legally chargeable or collectible. In
addition, we express no opinion as to the enforceability of any provision in the
Transaction Documents that (i) purports to establish (or may be construed to
establish) evidentiary standards; (ii) relates to the subject matter
jurisdiction of any court to adjudicate any controversy related to the
Transaction Documents or any waiver of an inconvenient forum set forth in any
such provision; or (iii) requires the payment of liquidated damages or imposes
penalties or forfeitures.
B. For purposes of our opinions set forth in paragraphs 7 and 9
above, we express no opinion with respect to laws, rules, regulations or
licensing requirements of any Federal, State, local or foreign governmental or
regulatory authority (i) relating to (a) the practice of medicine, the
laboratory industry or to the healthcare industry in general, or (b) to the use,
storage or disposal of medical waste or other hazardous substances or (ii) as
may otherwise be applicable to AmeriPath and the Subsidiaries because of the
specific type of business in which they engage.
C. For purposes of our opinions set forth above, we have assumed
that (i) each of the Transaction Documents constitutes the legal, valid and
binding obligation of parties thereto (other than the Transaction Parties); (ii)
each of the Other Guarantors is duly organized and validly existing under the
laws of the jurisdiction of its organization; (iii) each of the Other Guarantors
has all necessary power and authority to execute and deliver each of the
Transaction Documents to which it is a party; (iv) the execution, delivery and
performance by each of the Other Guarantors of the Transaction Documents to
which it is a party have been duly authorized by all requisite action of such
party; (v) each of the Transaction Documents has been duly executed and
delivered by each of the Other Guarantors; (vi) the execution, delivery and
performance by each of the Transaction Parties of the Transaction Documents to
which it is a party does not violate any law, rule or regulation of the
jurisdiction in which it is organized or any other applicable law, rule or
regulation (excepting the laws, rules and regulations of the State of New York
and the United States of America and the General Corporation Law of the State of
Delaware, the Limited Liability Company Act of the State of Delaware and the
Revised Uniform Limited Partnership Act of the State of Delaware) or any order
or decree of any court or governmental agency or body (excepting orders and
decrees of courts or other governmental agencies or bodies of the United States
of America or the State of New York or any court or other governmental agency or
body of the State of Delaware acting pursuant to the General Corporation Law of
the State of Delaware, the Limited Liability Company Act of the State of
Delaware or the Revised Uniform Limited Partnership Act of the State of Delaware
which are known to us); and (vii) the execution, delivery and performance by
each of the Transaction Parties of the Transaction Documents to which it is a
party does not constitute a breach or violation of any agreement or instrument
(other than a Material Agreement) which is binding upon such Transaction Party.
D. We express no opinion as to the status under Section 548 of the Bankruptcy
Code and applicable State fraudulent conveyance laws of the obligations of the
Transaction Parties under the Transaction Documents.
We are admitted to practice only in the State of New York, and we
express no opinion as to matters governed by any laws other than the laws of the
State of New York, the Federal law of the United States of America, the General
Corporation Law of the State of Delaware, the Limited Liability Company Act of
the State of Delaware and the Revised Uniform Limited Partnership Act of the
State of Delaware.
This opinion is rendered only to you and is solely for your benefit in
connection with the Transaction Documents. This opinion may not be relied upon
by any other person or for any other purpose or used, circulated, quoted or
otherwise referred to for any other purpose.
Very truly yours,
EXHIBIT B
March [ ], 2003
Credit Suisse First Boston LLC and
Deutsche Bank Securities Inc.
Wachovia Securities, Inc.
In care of Credit Suisse First Boston LLC
Xxxxxx Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Re: AMERIPATH, INC.
$275,000,000 10 1/2% SENIOR SUBORDINATED NOTES DUE 2013
Ladies and Gentlemen:
We are of opinion as follows:
1. The Merger Agreement has been duly authorized, executed and delivered
by AmeriPath.
2. Except as described in the Offering Circular, we have not been
retained to represent AmeriPath in any pending action, suit or proceeding
against or affecting AmeriPath that, if determined adversely to AmeriPath or any
of the Subsidiaries, would individually or in the aggregate have a Material
Adverse Effect.
3. Except as disclosed in the Offering Circular, all of the capital stock
or other ownership interest, as the case may be, of each of the Guarantors is
owned by AmeriPath, directly or through other Guarantors.
We are furnishing this opinion to you, as representatives of the Initial
Purchasers, solely for your benefit and the benefit of the several Initial
Purchasers. This opinion may not be relied upon by any other person or for any
other purpose or used, circulated, quoted or otherwise referred to for any other
purpose.
Very truly yours,
EXHIBIT C
March [ ], 2003
Credit Suisse First Boston LLC and
Deutsche Bank Securities Inc.
Wachovia Securities, Inc,
In care of Credit Suisse First Boston LLC
Xxxxxx Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Re: AMERIPATH, INC.
$275,000,000 10 1/2% SENIOR SUBORDINATED NOTES DUE 2013
Ladies and Gentlemen:
We have acted as special regulatory counsel for Xxx Xxxxxxxxxxx Corp., a
Delaware corporation (the "Company"), which will be merged with and into
AmeriPath, Inc., a Delaware corporation ("AmeriPath"), pursuant to the Agreement
and Plan of Merger dated December 8, 2002, among the Company, Xxx Holding
Company and AmeriPath (the "Merger"), in connection with the Merger and the
purchase by the several initial purchasers (the "Initial Purchasers") listed in
Schedule A to the Purchase Agreement dated March 13, 2003 (the "Purchase
Agreement"), among Credit Suisse First Boston LLC, Deutsche Bank Securities
Inc., Wachovia Securities, Inc. and the Company, from the Company of
$275,000,000 principal amount of its 10 1/2% Senior Subordinated Notes due 2013
(the "Notes").
In that connection, we have examined: (a) the Preliminary Offering Circular
dated February 28,2003, (b) the Offering Circular dated March 13,2003 (the
"Offering Circular"), and (c) the Purchase Agreement.
Based on the foregoing, we are of opinion as follows:
The statements made in the Offering Circular under the captions "Government
Regulation" and "Risk Factors," insofar as they purport to describe statutes,
regulations and other laws of the Federal government and the governments of the
several states of the United States of America regarding the provision of
healthcare, accurately describe and fairly summarize such statutes, regulations
and other laws.
We are furnishing this opinion to you, as representatives of the Initial
Purchasers, solely for your benefit and the benefit of the several Initial
Purchasers. This opinion may not be relied upon by any other person or for any
other purpose or used, circulated, quoted or otherwise referred to for any other
purpose.
Very truly yours,
