EXHIBIT 1.1
AmeriPath, Inc.
[ ] Shares /a
Common Stock
($.01 par value)
Underwriting Agreement
New York, New York
October [ ], 2001
Xxxxxxx Xxxxx Xxxxxx Inc.
Credit Suisse First Boston Corporation
U.S. Bancorp Xxxxx Xxxxxxx Inc.
First Union Securities, Inc.
As Representatives of the several Underwriters,
c/o Xxxxxxx Xxxxx Xxxxxx Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
AmeriPath, Inc., a corporation organized under the laws of
Delaware (the "Company"), proposes to sell to the several underwriters named in
Schedule I hereto (the "Underwriters"), for whom you (the "Representatives") are
acting as representatives, [ ] shares of Common Stock, $.01 par value ("Common
Stock") of the Company (said shares to be issued and sold by the Company being
hereinafter called the "Underwritten Securities"). The Company also proposes to
grant to the Underwriters an option to
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(1) Plus an option to purchase from the Company up to additional Securities
to cover over-allotments.
purchase up to [ ] additional shares of Common Stock to cover over-allotments
(the "Option Securities"; the Option Securities, together with the Underwritten
Securities, being hereinafter called the "Securities"). To the extent there are
no additional Underwriters listed on Schedule I other than you, the term
Representatives as used herein shall mean you, as Underwriters, and the terms
Representatives and Underwriters shall mean either the singular or plural as the
context requires. The use of the neuter in this Agreement shall include the
feminine and masculine wherever appropriate. Any reference herein to the
Registration Statement, a Preliminary Prospectus or the Prospectus shall be
deemed to refer to and include the documents incorporated by reference therein
pursuant to Item 12 of Form S-3 which were filed under the Exchange Act on or
before the Effective Date of the Registration Statement or the issue date of
such Preliminary Prospectus or the Prospectus, as the case may be; and any
reference herein to the terms "amend", "amendment" or "supplement" with respect
to the Registration Statement, any Preliminary Prospectus or the Prospectus
shall be deemed to refer to and include the filing of any document under the
Exchange Act after the Effective Date of the Registration Statement, or the
issue date of any Preliminary Prospectus or the Prospectus, as the case may be,
deemed to be incorporated therein by reference. Certain terms used herein are
defined in Section 17 hereof.
1. Representations and Warranties. The Company represents and warrants to,
and agrees with, each Underwriter as set forth below in this Section 1.
(a) The Company meets the requirements for use of Form
S-3 under the Act and has prepared and filed with the Commission a
registration statement (file number ) on Form S-3, including a related
preliminary prospectus, for registration under the Act of the offering
and sale of the Securities. The Company may have filed one or more
amendments thereto, including a related preliminary prospectus, each of
which has previously been furnished to you. The Company will next file
with the Commission one of the following: either (1) prior to the
Effective Date of such registration statement, a further amendment to
such registration statement, (including the form of final prospectus)
or (2) after the Effective Date of such registration statement, a final
prospectus in accordance with Rules 430A and 424(b). In the case of
clause (2), the Company has included in such registration statement, as
amended at the Effective Date, all information (other than Rule 430A
Information) required by the Act and the rules thereunder to be
included in such registration statement and the Prospectus. As filed,
such amendment and form of final prospectus, or such final prospectus,
shall contain all Rule 430A Information, together with all other such
required information, and, except to the extent the Representatives
shall agree in writing to a modification, shall be in all substantive
respects in the form furnished to you prior to the Execution Time or,
to the extent not completed at the Execution Time, shall contain only
such specific additional information and other changes (beyond that
contained in the latest Preliminary Prospectus) as the Company has
advised you, prior to the Execution Time, will be included or made
therein.
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(b) On the Effective Date, the Registration Statement did
or will, and when the Prospectus is first filed (if required) in
accordance with Rule 424(b) and on the Closing Date (as defined herein)
and on any date on which Option Securities are purchased, if such date
is not the Closing Date (a "settlement date"), the Prospectus (and any
supplements thereto) will, comply in all material respects with the
applicable requirements of the Act and the Exchange Act and the
respective rules thereunder; on the Effective Date and at the Execution
Time, the Registration Statement did not or will not contain any untrue
statement of a material fact or omit to state any material fact
required to be stated therein or necessary in order to make the
statements therein not misleading; and, on the Effective Date, the
Prospectus, if not filed pursuant to Rule 424(b), will not, and on the
date of any filing pursuant to Rule 424(b) and on the Closing Date and
any settlement date, the Prospectus (together with any supplement
thereto) will not, include any untrue statement of a material fact or
omit 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; provided, however, that the Company makes no
representations or warranties as to the information contained in or
omitted from the Registration Statement or the Prospectus (or any
supplement thereto) in reliance upon and in conformity with information
furnished in writing to the Company by or on behalf of any Underwriter
through the Representatives specifically for inclusion in the
Registration Statement or the Prospectus (or any supplement thereto).
(c) Each of the Company, its subsidiaries and the
professional associations or professional corporations which are
separate legal entities that contract with the Company or its
subsidiaries to provide physician services in certain states
(collectively, but excluding the Managed Practices (as hereinafter
defined), the "PA Contr actors") has been duly incorporated or, in the
case of partnerships, limited liability companies or trusts, duly
organized, and is validly existing as a corporation, partnership,
limited liability company or trust, as the case may be, in good
standing under the laws of the jurisdiction in which it is chartered or
organized with full power and authority to own or lease, as the case
may be, and to operate its properties and conduct its business as
described in the Prospectus, and is duly qualified to do business as a
foreign corporation or other entity and is in good standing under the
laws of each jurisdiction which requires such qualification;
(d) All the outstanding shares of capital stock or other
form of ownership, membership or beneficial interest of each subsidiary
and PA Contractor have been duly and validly authorized and issued and
are fully paid and nonassessable, and, except as otherwise set forth in
the Prospectus, all outstanding shares of capital stock or other form
of ownership, membership or beneficial interest of the subsidiaries
(other than PA Contractors) are owned, and in the case of PA
Contractors, owned or controlled, by the Company either directly or
through wholly owned subsidiaries (other than PA Contractors) or wholly
owned or controlled PA Contractors, free and clear of any perfected
security interest or any other security interests, claims, liens or
encumbrances;
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(e) The Company's authorized equity capitalization is as
set forth in the Prospectus; the capital stock of the Company conforms
in all material respects to the description thereof contained in the
Prospectus; the outstanding shares of Common Stock have been duly and
validly authorized and issued and are fully paid and nonassessable; the
Securities being sold hereunder by the Company have been duly and
validly authorized, and, when issued and delivered to and paid for by
the Underwriters pursuant to this Agreement, will be fully paid and
nonassessable; the Securities being sold hereunder by the Company are
duly listed, and admitted and authorized for trading, subject to
official notice of issuance, on the Nasdaq National Market; the
certificates for the Securities are in valid and sufficient form; the
holders of outstanding shares of capital stock of the Company are not
entitled to preemptive or other rights to subscribe for the Securities;
and, except as set forth in the Prospectus, no options, warrants or
other rights to purchase, agreements or other obligations to issue, or
rights to convert any obligations into or exchange any securities for,
shares of capital stock of or ownership interests in the Company are
outstanding.
(f) There is no franchise, contract or other document of
a character required to be described in the Registration Statement or
Prospectus, or to be filed as an exhibit thereto, which is not
described or filed as required; and the statements in the Prospectus
under the headings "Material United States Federal Tax Consequences",
"Risk Factors - Our business could be materially harmed by future
interpretation or implementation of state laws regarding prohibitions
on the corporate practice of medicine", "Risk Factors - We could be
hurt by future interpretation or implementation of federal and state
anti-kickback laws", "Risk Factors - Our business could be harmed by
future interpretation or implementation of the federal Xxxxx Law and
other state and federal anti-referral laws", "Risk Factors - Our
business could be materially harmed by future interpretation or
implementation of state laws regarding prohibitions on fee-splitting",
"Risk Factors - We could be hurt by future interpretation or
implementation of state and federal anti-trust laws", "Risk Factors -
Our business could be harmed by future interpretation or implementation
of the Health Care Insurance Portability and Accountability Act", "Risk
Factors - Federal and state regulation of the privacy, security and
transmission of health information could restrict our operations,
impede the implementation of our business strategies or cause us to
incur significant costs", "Risk Factors - We rely upon reimbursement
from government programs for a significant portion of our collections,
and therefore our business would be harmed if reimbursement rates from
government programs decline", "Risk Factors - There has been an
increasing number of state and federal investigations of hospitals and
hospital laboratories, which may increase the likelihood of
investigations of our business practices", "Risk Factors - The
heightened scrutiny of Medicare and Medicaid billing practices in
recent years may increase the possibility that we will become subject
to costly and time consuming lawsuits and investigations", "Risk
Factors - Ethical, social and legal issues concerning genomic research
and testing may result in regulations restricting the use of genomic
testing or reduce the demand for genomic testing
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products, which could impede our ability to achieve our growth
objectives", "Management's Discussion and Analysis of Financial
Condition and Results of Operations - Medicare Reimbursement",
"Business - Contracts and Relationships with Physicians of Owned
Practices", "Business - AmeriPath Corporate Structure", "Business -
Government Regulations", "Business - Insurance" and "Business - Legal
Proceedings", insofar as such statements summarize legal matters,
agreements, documents or proceedings discussed therein, are accurate
and fair summaries of such legal matters, agreements, documents or
proceedings.
(g) This Agreement has been duly authorized, executed and
delivered by the Company and constitutes a valid and binding obligation
of the Company enforceable in accordance with its terms, subject to
applicable bankruptcy, insolvency and similar laws affecting creditors'
rights generally and subject to general principles of equity.
(h) The Company is not and, after giving effect to the
offering and sale of the Securities and the application of the proceeds
thereof as described in the Prospectus, will not be an "investment
company" as defined in the Investment Company Act of 1940, as amended.
(i) No consent, approval, authorization, filing with or
order of any court or governmental agency or body is required in
connection with the transactions contemplated herein, except such as
have been obtained under the Act, such as may be required under the
blue sky laws of any jurisdiction in connection with the purchase and
distribution of the Securities by the Underwriters in the manner
contemplated herein and in the Prospectus, such as may be required to
clear the offering and the underwriting arrangements with the NASD,
and, if the Registration Statement is not effective under the Act as of
the Execution Time, declaration of effectiveness of the Registration
Statement by the SEC.
(j) Neither the issue and sale of the Securities nor the
consummation of any other of the transactions herein contemplated nor
the fulfillment of the terms hereof will conflict with, result in a
breach or violation or imposition of any lien, charge or encumbrance
upon any property or assets of the Company or any of its subsidiaries
or PA Contractors pursuant to, (i) the charter or by-laws of the
Company or any of its subsidiaries or PA Contractors, (ii) the terms of
any indenture, contract, lease, mortgage, deed of trust, note
agreement, loan agreement or other agreement, obligation, condition,
covenant or instrument to which the Company or any of its subsidiaries
or PA Contractors is a party or bound or to which its or their property
is subject, or (iii) any statute, law, rule, regulation, judgment,
order or decree applicable to the Company or any of its subsidiaries or
PA Contractors of any court, regulatory body, administrative agency,
governmental body, arbitrator or other authority having jurisdiction
over the Company or any of its subsidiaries or any of its or their
properties.
(k) No holders of securities of the Company have rights
to the registration of such securities under the Registration
Statement.
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(l) The consolidated historical financial statements and
schedules of the Company and its consolidated subsidiaries included in
the Prospectus and the Registration Statement present fairly in all
material respects the financial condition, results of operations and
cash flows of the Company as of the dates and for the periods
indicated, comply as to form in all material respects with the
applicable accounting requirements of the Act and have been prepared in
conformity with generally accepted accounting principles applied on a
consistent basis throughout the periods involved (except as otherwise
noted therein). The selected financial data set forth under the caption
"Selected Financial Information" in the Prospectus and Registration
Statement fairly present in all material respects, on the basis stated
in the Prospectus and the Registration Statement, the information
included therein. The pro forma financial information included or
incorporated in the Prospectus and the Registration Statement include
assumptions that provide a reasonable basis for presenting the
significant effects directly attributable to the transactions and
events described therein, the related pro forma adjustments give
appropriate effect to those assumptions, and the pro forma adjustments
reflect the proper application of those adjustments to the historical
financial statement amounts in the pro forma financial information
included or incorporated in the Prospectus and the Registration
Statement. The pro forma financial information included or incorporated
in the Prospectus and the Registration Statement comply as to form in
all material respects with the applicable accounting requirements of
Regulation S-X under the Act and the pro forma adjustments have been
properly applied to the historical amounts in the compilation of those
statements.
(m) Except as described in the Prospectus, no action,
suit or proceeding by or before any court or governmental agency,
authority or body or any arbitrator (including, without limitation, the
Centers for Medicare and Medicaid Services ("CMS") (formerly known as
the United States Healthcare Financing Administration), the Department
of Health and Human Services (the "HHS"), the Department of Justice
(the "DOJ"), the office of the Inspector General (the "OIG") and the
United States Food and Drug Administration (the "FDA")) involving the
Company or any of its subsidiaries or PA Contractors or any of the
physician practices to which the Company or any of its subsidiaries or
PA Contractors provides management services (the "Managed Practices")
or its or their property is pending or, to the knowledge of the
Company, threatened that (i) could adversely affect the possession by
any of them of any License (as defined herein); (ii) could adversely
affect any of their participation in, and ability to receive
reimbursement from, Medicaid or Medicare; (iii) could adversely affect
any of their ability to conduct their business as currently conducted
in any state; (iv) could reasonably be expected to have a material
adverse effect on the performance of this Agreement or the consummation
of any of the transactions contemplated hereby; or (v) could reasonably
be expected to have a material adverse effect on the condition
(financial or otherwise), prospects, earnings, business or properties
of the Company and its subsidiaries and PA Contractors, taken as a
whole, whether or not arising from
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transactions in the ordinary course of business, except as set forth in
the Prospectus (exclusive of any supplement thereto).
(n) Each of the Company and each of its subsidiaries and
PA Contractors owns or leases all such properties as are necessary to
the conduct of its operations as presently conducted.
(o) Neither the Company nor any subsidiary, PA Contractor
or Managed Practice (i) is in violation or default of any provision of
its charter or bylaws, (ii) is in violation or default in any material
respect of the terms of any indenture, contract, lease, mortgage, deed
of trust, note agreement, loan agreement or other agreement,
obligation, condition, covenant or instrument to which it is a party or
bound or to which its property is subject, or (iii) is in violation or
default in any material respect of any statute, law, rule, regulation,
judgment, order or decree of any court, regulatory body, administrative
agency, governmental body, arbitrator or other authority having
jurisdiction over the Company or such subsidiary or PA Contractor or
any of its properties, as applicable (including, without limitation,
those administered by the CMS and the FDA.
(p) Deloitte & Touche LLP, who have certified certain
financial statements of the Company and its consolidated subsidiaries
and delivered their report with respect to the audited consolidated
financial statements and schedules of the Company included in the
Prospectus, are independent public accountants with respect to the
Company within the meaning of the Act and the applicable published
rules and regulations thereunder.
(q) Ernst & Young LLP, who have certified certain
financial statements of Pathology Consultants of America, Inc., d/b/a
Inform DX ("Inform DX") and its consolidated subsidiaries and delivered
their report with respect to the audited consolidated financial
statements and schedules of Inform DX incorporated by reference or
included in the Prospectus, are independent public accountants with
respect to Inform DX within the meaning of the Act and the applicable
published rules and regulations thereunder.
(r) There are no transfer taxes or other similar fees or
charges under Federal law or the laws of any state, or any political
subdivision thereof, required to be paid in connection with the
execution and delivery of this Agreement or the issuance by the Company
or sale by the Company of the Securities.
(s) The Company and its subsidiaries and PA Contractors
have each filed all foreign, federal, state and local tax returns that
are required to be filed or has requested extensions thereof (except in
any case in which the failure so to file would not have a material
adverse effect on the condition (financial or otherwise), prospects,
earnings, business or properties of the Company and its subsidiaries
and PA Contractors, taken as a whole, whether or not arising from
transactions in the ordinary course of business, except as set forth in
the Prospectus (exclusive of any supplement thereto)) and has paid all
taxes required to be paid by it and any other
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assessment, fine or penalty levied against it, to the extent that any
of the foregoing is due and payable, except for any such assessment,
fine or penalty that is currently being contested in good faith or as
would not have a material adverse effect on the condition (financial or
otherwise), prospects, earnings, business or properties of the Company
and its subsidiaries and PA Contractors, taken as a whole, whether or
not arising from transactions in the ordinary course of business,
except as set forth in the Prospectus (exclusive of any supplement
thereto).
(t) No labor problem or dispute with the employees of the
Company or any of its subsidiaries, PA Contractors or Managed Practices
exists or, to the knowledge of the Company, is threatened or imminent,
and the Company is not aware of any existing or imminent labor
disturbance by the employees of any of its or its subsidiaries', PA
Contractors' or Managed Practices' principal suppliers, contractors or
customers, in each case that could reasonably be expected to have a
material adverse effect on the condition (financial or otherwise),
prospects, earnings, business or properties of the Company and its
subsidiaries and PA Contractors, taken as a whole, whether or not
arising from transactions in the ordinary course of business, except as
set forth in the Prospectus (exclusive of any supplement thereto).
(u) Except as set forth in the Prospectus: the Company
and each of its subsidiaries, PA Contractors and Managed Practices are
insured by insurers of recognized financial responsibility against such
losses and risks and in such amounts as are prudent and customary in
the businesses in which they are engaged; all policies of insurance and
fidelity or surety bonds insuring the Company or any of its
subsidiaries, PA Contractors or Managed Practices or their respective
businesses, assets, employees, officers and directors are in full force
and effect; the Company and its subsidiaries, PA Contractors and
Managed Practices are in compliance with the terms of such policies and
instruments in all material respects; and there are no claims by the
Company or any of its subsidiaries, PA Contractors or Managed Practices
under any such policy or instrument as to which any insurance company
is denying liability or defending under a reservation of rights clause;
neither the Company nor any such subsidiary, PA Contractor or Managed
Practice has been refused any insurance coverage sought or applied for;
and neither the Company nor any such subsidiary, PA Contractor or
Managed Practice has any reason to believe that it will not be able to
renew its existing insurance coverage as and when such coverage expires
or to obtain similar coverage as may be necessary to continue its
business at a cost that would not have a material adverse effect on the
condition (financial or otherwise), prospects, earnings, business or
properties of the Company and its subsidiaries and PA Contractors,
taken as a whole, whether or not arising from transactions in the
ordinary course of business, except as set forth in the Prospectus
(exclusive of any supplement thereto).
(v) No subsidiary of the Company is currently prohibited,
directly or indirectly, from paying any dividends to the Company, from
making any other distribution on such subsidiary's capital stock or
from transferring any of such
9
subsidiary's property or assets to the Company or any other subsidiary
of the Company, and no subsidiary, PA Contractor or Managed Practice is
currently prohibited, directly or indirectly, from repaying to the
Company or any subsidiary any loans or advances to such subsidiary, PA
Contractor or Managed Practice from the Company or any subsidiary, in
each case except as described in the Prospectus.
(w) Except as disclosed in the Registration Statement and
the Prospectus, the Company (i) does not have any material lending or
other relationship with any bank or lending affiliate of Xxxxxxx Xxxxx
Barney Holdings Inc., Credit Suisse First Boston Corporation, U.S.
Bancorp Xxxxx Xxxxxxx or First Union Securities, Inc. and (ii) does not
intend to use any of the proceeds from the sale of the Securities
hereunder to repay any outstanding debt owed to any affiliate of
Xxxxxxx Xxxxx Barney Holdings Inc., Credit Suisse First Boston
Corporation, U.S. Bancorp Xxxxx Xxxxxxx or First Union Securities, Inc.
(x) The Company and its subsidiaries, PA Contractors and
Managed Practices possess all licenses, certificates, permits, provider
numbers, approvals, consents, orders, certifications (including,
without limitation, certification under the Clinical Laboratories
Improvement Act of 1967, as amended), accreditations (including,
without limitation, accreditation by the College of American
Pathologists) and other authorizations (collectively "Licenses") issued
by, and have made all declarations and filings with, the appropriate
professional associations or federal, state or foreign regulatory
authorities necessary to conduct their respective businesses as
presently conducted (including, without limitation, Licenses as are
required (A) under such federal and state healthcare laws as are
applicable to the Company and its subsidiaries, PA Contractors and
Managed Practices and (B) with respect to those facilities operated by
the Company or any of its subsidiaries, PA Contractors or Managed
Practices that participate in the Medicare and/or Medicaid programs, to
receive reimbursement thereunder) and are in compliance in all material
respects with the terms and conditions of all such Licenses; all of
such Licenses are valid and in full force and effect; and neither the
Company nor any such subsidiary, PA Contractor or Managed Practice has
received any notice of proceedings relating to the revocation or
material modification of any such License, nor are there, to the
knowledge of the Company, pending or threatened actions, suits, claims
or proceedings against the Company or any of its subsidiaries, PA
Contractors or Managed Practices before any court, governmental agency
or body including, without limitation, the CMS and the FDA or otherwise
that would reasonably be expected to limit, revoke, cancel, suspend or
cause not to be renewed any License, in each case which, singly or in
the aggregate, if the subject of an unfavorable decision, ruling or
finding, would have a material adverse effect on the condition
(financial or otherwise), prospects, earnings, business or properties
of the Company and its subsidiaries and PA Contractors, taken as a
whole, whether or not arising from transactions in the ordinary course
of business, except as set forth in the Prospectus (exclusive of any
supplement thereto).
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(y) Neither the Company nor any of its subsidiaries, PA
Contractors or Managed Practices has failed to file with the applicable
regulatory authorities any statement, report, information or form
required by any applicable law, regulation or order, except where the
failure to be so in compliance could not reasonably be expected to have
a material adverse effect on the condition (financial or otherwise),
prospects, earnings, business or properties of the Company and its
subsidiaries and PA Contractors, taken as a whole, whether or not
arising from transactions in the ordinary course of business and except
as set forth in the Prospectus (exclusive of any supplement thereto);
all such filings or submissions were in compliance with applicable laws
when filed and no deficiencies have been asserted by any regulatory
commission, agency or authority with respect to any such filings or
submissions, except for any such failures to be in compliance or
deficiencies as could not reasonably be expected to have a material
adverse effect on the condition (financial or otherwise), prospects,
earnings, business or properties of the Company and its subsidiaries
and PA Contractors, taken as a whole, whether or not arising from
transactions in the ordinary course of business and except as set forth
in the Prospectus (exclusive of any supplement thereto).
(z) The Company and each of its subsidiaries, PA
Contractors and Managed Practices maintain a system of internal
accounting controls sufficient to provide reasonable assurance that (i)
transactions are executed in accordance with management's general or
specific authorizations; (ii) transactions are recorded as necessary to
permit preparation of financial statements in conformity with generally
accepted accounting principles and to maintain asset accountability;
(iii) access to assets is permitted only in accordance with
management's general or specific authorization; and (iv) the recorded
accountability for assets is compared with the existing assets at
reasonable intervals and appropriate action is taken with respect to
any differences.
(aa) The Company has not taken, directly or indirectly,
any action designed to or that would constitute or that might
reasonably be expected to cause or result in, under the Exchange Act or
otherwise, stabilization or manipulation of the price of any security
of the Company to facilitate the sale or resale of the Securities.
(bb) The business conducted by the Company and its
subsidiaries, PA Contractors and Managed Practices and the contractual
relationships between (A) the Company or any of its subsidiaries and
the PA Contractors and Managed Practices; (B) the Company or any of its
subsidiaries, PA Contractors or Managed Practices and the health care
payors with which they contract; and (C) the Company or any of its
subsidiaries or PA Contractors and the health care providers with which
they contract, do not violate any federal or state health care laws and
regulations, or any federal or state patient confidentiality laws and
regulations or any federal or state insurance laws and regulations
(including, but not limited to, those governing health maintenance
organizations and preferred provider organizations) in such
jurisdictions in which the Company and any of its subsidiaries, PA
Contractors or Managed Practices are operating that are
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applicable to such business and such relationships, including, but not
limited to, the federal Medicare and Medicaid statutes and the rules
and regulations promulgated thereunder, and those laws and regulations
governing billing for medical services, insurance risk and risk
allocation, corporate practice of medicine, medical practices,
professional corporations, fee splitting, fraud and abuse and
self-referral, except for violations that could not, singly or in the
aggregate, reasonably be expected to have a material adverse effect on
the condition (financial or otherwise), prospects, earnings, business
or properties of the Company and its subsidiaries and PA Contractors,
taken as a whole, whether or not arising from transactions in the
ordinary course of business and except as set forth in the Prospectus
(exclusive of any Supplement thereto).
(cc) The Company has established and administers a
compliance program (including a written compliance policy) applicable
to the Company and its subsidiaries, PA Contractors and Managed
Practices, to assist the Company, its subsidiaries, PA Contractors and
Managed Practices and the directors, officers and employees of the
Company and its subsidiaries, PA Contractors and Managed Practices, in
complying with applicable regulatory agency guidelines (including,
without limitation, those regulations and guidelines published by CLIA
and CMS), and to provide compliance policies governing applicable areas
for independent laboratories (including, without limitation, billing,
patient confidentiality, fee splitting, fraud and abuse and
self-referral, diagnosis coding, anti-kickback statutes, professional
courtesy, Advanced Beneficiary Notice and CPT-4 coding).
(dd) The accounts receivable of the Company and its
subsidiaries and PA Contractors have been adjusted to reflect material
changes in the reimbursement policies of third party payors such as
Medicare, Medicaid, private insurance companies, health maintenance
organizations, preferred provider organizations, managed care systems
and other third party payors. The accounts receivable, after giving
effect to the allowance for doubtful accounts, relating to such third
party payors do not materially exceed amounts the Company and its
subsidiaries and PA Contractors are entitled to receive.
(ee) The Company and its subsidiaries, PA Contractors and
Managed Practices are (i) in compliance with any and all applicable
foreign, federal, state and local laws and regulations relating to the
protection of human health and safety, the environment or hazardous or
toxic substances or wastes, pollutants or contaminants ("Environmental
Laws"), (ii) have received and are in compliance with all permits,
licenses or other approvals required of them under applicable
Environmental Laws to conduct their respective businesses and (iii)
have not received notice of any actual or potential liability for the
investigation or remediation of any disposal or release of hazardous or
toxic substances or wastes, pollutants or contaminants, except where
such non-compliance with Environmental Laws, failure to receive
required permits, licenses or other approvals, or liability would not,
individually or in the aggregate, have a material adverse change in the
condition (financial or otherwise), prospects, earnings, business or
properties of the Company and its subsidiaries and PA Contractors,
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taken as a whole, whether or not arising from transactions in the
ordinary course of business, except as set forth in the Prospectus
(exclusive of any supplement thereto). Except as set forth in the
Prospectus, neither the Company nor any of the subsidiaries, PA
Contractors or Managed Practices has been named as a "potentially
responsible party" under the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980, as amended.
(ff) The Company has reviewed the effect of Environmental
Laws on the business, operations and properties of the Company and its
subsidiaries, PA Contractors and Managed Practices, and has evaluated
associated costs and liabilities (including, without limitation, any
capital or operating expenditures required for clean-up, closure of
properties or compliance with Environmental Laws, or any permit,
license or approval, any related constraints on operating activities
and any potential liabilities to third parties). On the basis of such
review, the Company has reasonably concluded that such associated costs
and liabilities would not, singly or in the aggregate, have a material
adverse effect on the condition (financial or otherwise), prospects,
earnings, business or properties of the Company and its subsidiaries
and PA Contractors, taken as a whole, whether or not arising from
transactions in the ordinary course of business, except as set forth in
the Prospectus (exclusive of any supplement thereto).
(gg) Each of the Company and its subsidiaries and PA
Contractors has fulfilled its obligations, if any, under the minimum
funding standards of Xxxxxxx 000 xx xxx Xxxxxx Xxxxxx Employee
Retirement Income Security Act of 1974 ("ERISA") and the regulations
and published interpretations thereunder with respect to each "plan"
(as defined in Section 3(3) of ERISA and such regulations and published
interpretations) in which employees of the Company and its subsidiaries
and PA Contractors are eligible to participate and each such plan is in
compliance in all material respects with the presently applicable
provisions of ERISA and such regulations and published interpretations.
The Company and its subsidiaries and PA Contractors have not incurred
any unpaid liability to the Pension Benefit Guaranty Corporation (other
than for the payment of premiums in the ordinary course) or to any such
plan under Title IV of ERISA.
(hh) All shares of Common Stock issued pursuant to the
Agreement and Plan of Merger by and among the Company, AMP Merger Corp.
and Pathology Consultants of America, Inc. (d/b/a/ Inform DX) dated
November 7, 2000, except for shares held by CSFB Cayman International,
LDC or sold pursuant to an effective registration statement under the
Act, are subject to the provisions of a Registration Rights Agreement
among the Company, the Holders (as defined in the Registration Rights
Agreement) and the Representative (as defined in the Registration
Rights Agreement) dated as of November 30, 2000 (the "Registration
Rights Agreement"), a true and complete copy of which has been provided
to the Representatives prior to the date of this Agreement; pursuant to
the Registration Rights Agreement, all shares of Common Stock held by
the Holders identified on Schedule II hereto, except as otherwise
provided on such Schedule II, (the "Inform DX Shares") shall be subject
to restrictions on the sale or other transfer of such
13
shares for a period ending 90 days following the date hereof (the
"Inform DX Transfer Restrictions"); prior to the date hereof, the
Company provided due written notice to each such Holder informing such
Holder of the implementation of the Inform DX Transfer Restrictions
until the date 90 days following the date hereof and, as a result of
such notice, no Inform DX Shares may be sold or otherwise transferred
prior to such date except as provided in such notice;
(ii) The Company has furnished to the Representatives a
letter substantially in the form of Exhibit A hereto from each
executive officer and director of the Company, addressed to the
Representatives and dated as of October [ ], 2001.
Any certificate signed by any officer of the Company and delivered to
the Representatives or counsel for the Underwriters in connection with the
offering of the Securities shall be deemed a representation and warranty by the
Company, as to matters covered thereby, to each Underwriter.
2. Purchase and Sale. (a) Subject to the terms
and conditions and in reliance upon the representations and warranties herein
set forth, the Company agrees to sell to each Underwriter, and each Underwriter
agrees, severally and not jointly, to purchase from the Company, at a purchase
price of $ per share, the respective amounts of the Underwritten Securities set
forth opposite such Underwriter's name in Schedule I hereto.
(b) Subject to the terms and conditions and in
reliance upon the representations and warranties herein set forth, the Company
hereby grants an option to the several Underwriters to purchase, severally and
not jointly, up to [ ] Option Securities at the same purchase price per share as
the Underwriters shall pay for the Underwritten Securities. Said option may be
exercised only to cover over-allotments in the sale of the Underwritten
Securities by the Underwriters. Said option may be exercised in whole or in part
at any time (but not more than once) on or before the 30th day after the date of
the Prospectus upon written or telegraphic notice by the Representatives to the
Company setting forth the number of shares of the Option Securities as to which
the several Underwriters are exercising the option and the settlement date. The
number of Option Securities to be purchased by each Underwriter shall be the
same percentage of the total number of shares of the Option Securities to be
purchased by the several Underwriters as such Underwriter is purchasing of the
Underwritten Securities, subject to such adjustments as you in your absolute
discretion shall make to eliminate any fractional shares.
3. Delivery and Payment. Delivery of and
payment for the Underwritten Securities and the Option Securities (if the option
provided for in Section 2(b) hereof shall have been exercised on or before the
third Business Day prior to the Closing Date) shall be made at 10:00 AM, New
York City time, on , 2001, or at such time on such later date not more than
three Business Days after the foregoing date as the Representatives shall
designate, which date and time may be postponed by agreement between the
Representatives and the Company, or as provided in Section 9 hereof (such
14
date and time of delivery and payment for the Securities being herein called the
"Closing Date"). Delivery of the Securities shall be made to the Representatives
for the respective accounts of the several Underwriters against payment by the
several Underwriters through the Representatives of the purchase price thereof
to or upon the order of the Company by wire transfer payable in same-day funds
to an account specified by the Company. Delivery of the Underwritten Securities
and the Option Securities shall be made through the facilities of The Depository
Trust Company unless the Representatives shall otherwise instruct.
If the option provided for in Section 2(b) hereof is exercised
after the third Business Day prior to the Closing Date, the Company will deliver
the Option Securities (at the expense of the Company) to the Representatives, at
000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, xx the date specified by the
Representatives (which shall be within three Business Days after exercise of
said option) for the respective accounts of the several Underwriters, against
payment by the several Underwriters through the Representatives of the purchase
price thereof to or upon the order of the Company by wire transfer payable in
same-day funds to the accounts specified by the Company. If settlement for the
Option Securities occurs after the Closing Date, the Company will deliver to the
Representatives on the settlement date for the Option Securities, and the
obligation of the Underwriters to purchase the Option Securities shall be
conditioned upon receipt of, supplemental opinions, certificates and letters
confirming as of such date the opinions, certificates and letters delivered on
the Closing Date pursuant to Section 6 hereof.
4. Offering by Underwriters. It is understood that the
several Underwriters propose to offer the Securities for sale to the public as
set forth in the Prospectus.
5. Agreements. The Company agrees with the several
Underwriters that:
(a) The Company will use its best efforts to
cause the Registration Statement, if not effective at the Execution
Time, and any amendment thereof, to become effective. Prior to the
termination of the offering of the Securities, the Company will not
file any amendment of the Registration Statement or supplement to the
Prospectus or any Rule 462(b) Registration Statement unless the Company
has furnished you a copy for your review prior to filing and will not
file any such proposed amendment or supplement to which you reasonably
object. Subject to the foregoing sentence, if the Registration
Statement has become or becomes effective pursuant to Rule 430A, or
filing of the Prospectus is otherwise required under Rule 424(b), the
Company will cause the Prospectus, properly completed, and any
supplement thereto to be filed with the Commission pursuant to the
applicable paragraph of Rule 424(b) within the time period prescribed
and will provide evidence satisfactory to the Representatives of such
timely filing. The Company will promptly advise the Representatives (1)
when the Registration Statement, if not effective at the Execution
Time, shall have become effective, (2) when the Prospectus, and any
supplement thereto, shall have been filed (if required) with the
Commission pursuant to Rule 424(b) or when any Rule 462(b) Registration
Statement shall have been filed with the Commission, (3) when, prior to
termination of the offering of the Securities, any amendment to the
Registration
15
Statement shall have been filed or become effective, (4) of any request
by the Commission or its staff for any amendment of the Registration
Statement, or any Rule 462(b) Registration Statement, or for any
supplement to the Prospectus or for any additional information, (5) of
the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or the institution or
threatening of any proceeding for that purpose and (6) of the receipt
by the Company of any notification with respect to the suspension of
the qualification of the Securities for sale in any jurisdiction or the
institution or threatening of any proceeding for such purpose. The
Company will use its best efforts to prevent the issuance of any such
stop order or the suspension of any such qualification and, if issued,
to obtain as soon as possible the withdrawal thereof.
(b) If, at any time when a prospectus relating
to the Securities is required to be delivered under the Act, any event
occurs as a result of which the Prospectus as then supplemented would
include any untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein in the light of
the circumstances under which they were made not misleading, or if it
shall be necessary to amend the Registration Statement or supplement
the Prospectus to comply with the Act or the Exchange Act or the
respective rules thereunder, the Company promptly will (1) notify the
Representatives of such event, (2) prepare and file with the
Commission, subject to the second sentence of paragraph (i)(a) of this
Section 5, an amendment or supplement which will correct such statement
or omission or effect such compliance and (3) supply any supplemented
Prospectus to you in such quantities as you may reasonably request.
(c) As soon as practicable, the Company will
make generally available to its security holders and to the
Representatives an earnings statement or statements of the Company and
its subsidiaries which will satisfy the provisions of Section 11(a) of
the Act and Rule 158 under the Act.
(d) The Company will furnish to the
Representatives and counsel for the Underwriters, without charge,
signed copies of the Registration Statement (including exhibits
thereto) and to each other Underwriter a copy of the Registration
Statement (without exhibits thereto) and, so long as delivery of a
prospectus by an Underwriter or dealer may be required by the Act, as
many copies of each Preliminary Prospectus and the Prospectus and any
supplement thereto as the Representatives may reasonably request. The
Company will pay the expenses of printing or other production of all
documents relating to the offering.
(e) The Company will arrange, if necessary, for
the qualification of the Securities for sale under the laws of such
jurisdictions as the Representatives may designate, will maintain such
qualifications in effect so long as required for the distribution of
the Securities and will pay any fee of the National Association of
Securities Dealers, Inc., in connection with its review of the
offering; provided that in no event shall the Company be obligated to
qualify to do business in any jurisdiction where it is not now so
qualified or to take any action that would
16
subject it to service of process in suits, other than those arising out
of the offering or sale of the Securities, in any jurisdiction where it
is not now so subject.
(f) The Company will not, without the prior
written consent of Xxxxxxx Xxxxx Xxxxxx Inc., (i) offer, sell, contract
to sell, pledge, or otherwise dispose of, (or enter into any
transaction which is designed to, or might reasonably be expected to,
result in the disposition (whether by actual disposition or effective
economic disposition due to cash settlement or otherwise) by the
Company or any affiliate of the Company or any person in privity with
the Company or any affiliate of the Company) directly or indirectly,
including the filing (or participation in the filing) of a registration
statement with the Commission in respect of, or establish or increase a
put equivalent position or liquidate or decrease a call equivalent
position within the meaning of Section 16 of the Exchange Act, any
other shares of Common Stock or any securities convertible into, or
exercisable, or exchangeable for, shares of Common Stock; (ii) publicly
announce an intention to effect any such transaction; or (iii) amend,
waive or fail to enforce the Inform DX Transfer Restrictions in respect
of the Inform DX Shares, in the case of clause (i), (ii) or (iii) for a
period of 90 days after the date of the Underwriting Agreement,
provided, however, that (1) the Company may issue and sell Common Stock
pursuant to any employee stock option plan, stock ownership plan or
dividend reinvestment plan of the Company in effect at the Execution
Time, (2) the Company may issue Common Stock issuable upon the
conversion of securities or the exercise of warrants outstanding at the
Execution Time or the satisfaction of contingencies under contingent
obligations to issue shares of Common Stock in effect at the Execution
Time, and (3) the Company may issue shares of Common Stock in
connection with acquisitions provided that the recipients of shares of
Common Stock issued in connection with acquisitions are bound by
transfer restrictions no less restrictive than those set forth in this
Section 5(i)(f).
(g) The Company will not take, directly or
indirectly, any action designed to or that would constitute or that
might reasonably be expected to cause or result in, under the Exchange
Act or otherwise, stabilization or manipulation of the price of any
security of the Company to facilitate the sale or resale of the
Securities.
6. Conditions to the Obligations of
the Underwriters. The obligations of the Underwriters to purchase the
Underwritten Securities and the Option Securities, as the case may be,
shall be subject to the accuracy of the representations and warranties
on the part of the Company contained herein as of the Execution Time,
the Closing Date and any settlement date pursuant to Section 3 hereof,
to the accuracy of the statements of the Company made in any
certificates pursuant to the provisions hereof, to the performance by
the Company of its obligations hereunder and to the following
additional conditions:
17
(a) If the Registration Statement has not become
effective prior to the Execution Time, unless the Representatives agree
in writing to a later time, the Registration Statement will become
effective not later than (i) 6:00 PM New York City time on the date of
determination of the public offering price, if such determination
occurred at or prior to 3:00 PM New York City time on such date or (ii)
9:30 AM on the Business Day following the day on which the public
offering price was determined, if such determination occurred after
3:00 PM New York City time on such date; if filing of the Prospectus,
or any supplement thereto, is required pursuant to Rule 424(b), the
Prospectus, and any such supplement, will be filed in the manner and
within the time period required by Rule 424(b); and no stop order
suspending the effectiveness of the Registration Statement shall have
been issued and no proceedings for that purpose shall have been
instituted or threatened.
(b) The Company shall have requested and caused
Xxxxxx & Bird LLP, counsel for the Company, to have furnished to the
Representatives their opinion, dated the Closing Date and addressed to
the Representatives, to the effect that:
(i) the Company has been duly
incorporated and is validly existing as a corporation
in good standing under the laws of the State of
Delaware, with full corporate power and authority to
own or lease, as the case may be, and to operate its
properties and conduct its business as described in
the Prospectus, and is duly qualified to do business
as a foreign corporation and is in good standing
under the laws of the State of Florida;
(ii) the Company's authorized equity
capitalization is as set forth in the Prospectus; the
capital stock of the Company conforms in all material
respects to the description thereof contained in the
Prospectus; the outstanding shares of Common Stock
have been duly and validly authorized; the Securities
being sold hereunder by the Company have been duly
and validly authorized, and, when issued and
delivered to and paid for by the Underwriters
pursuant to this Agreement, will be fully paid and
nonassessable; the Securities being sold hereunder by
the Company are authorized for quotation, subject to
official notice of issuance, on the Nasdaq National
Market; the certificates for the Securities are in
valid and sufficient form; the holders of outstanding
shares of capital stock of the Company are not
entitled to any statutory or, to such counsel's
knowledge, contractual preemptive or other similar
rights to subscribe for the Securities; and, except
as set forth in the Prospectus, to such counsel's
knowledge no options, warrants or other rights to
purchase, agreements or other obligations to issue,
or rights to convert any obligations into or exchange
any securities for, shares of capital stock of or
ownership interests in the Company are outstanding;
(iii) to the knowledge of such counsel,
there is no pending or threatened action, suit or
proceeding by or before any court or governmental
agency, authority or body or any arbitrator involving
the
18
Company or any of its subsidiaries, PA Contractors or
Managed Practices or its or their property of a
character required to be disclosed in the
Registration Statement which is not adequately
disclosed in the Prospectus, and there is no
franchise, contract or other document of a character
required to be described in the Registration
Statement or Prospectus, or to be filed as an exhibit
thereto, which is not described or filed as required;
and the statements included or incorporated by
reference in the Prospectus under the headings
"Material United States Federal Tax Consequences",
"Risk Factors - Our business could be materially
harmed by future interpretation or implementation of
state laws regarding prohibitions on the corporate
practice of medicine", "Risk Factors - We could be
hurt by future interpretation or implementation of
federal and state anti-kickback laws", "Risk Factors
- Our business could be harmed by future
interpretation or implementation of the federal Xxxxx
Law and other state and federal anti-referral laws",
"Risk Factors - Our business could be materially
harmed by future interpretation or implementation of
state laws regarding prohibitions on fee-splitting",
"Risk Factors - We could be hurt by future
interpretation or implementation of state and federal
anti-trust laws", "Risk Factors - Our business could
be harmed by future interpretation or implementation
of the Health Care Insurance Portability and
Accountability Act", "Risk Factors - Federal and
state regulation of the privacy, security and
transmission of health information could restrict our
operations, impede the implementation of our business
strategies or cause us to incur significant costs",
"Risk Factors - We rely upon reimbursement from
government programs for a significant portion of our
collections, and therefore our business would be
harmed if reimbursement rates from government
programs decline", "Risk Factors - The heightened
scrutiny of Medicare and Medicaid billing practices
in recent years may increase the possibility that we
will become subject to costly and time consuming
lawsuits and investigations", "Risk Factors -
Ethical, social and legal issues concerning genomic
research and testing may result in regulations
restricting the use of genomic testing or reduce the
demand for genomic testing products, which could
impede our ability to achieve our growth objectives",
"Business - Contracts and Relationships with
Physicians of Owned Practices", "Business - AmeriPath
Corporate Structure", "Business - Government
Regulations" (other than the portion thereof under
the subheading "Medicare Fee Schedule Payment for
Clinical Diagnostic Laboratory Testing"), "Business -
Insurance" and "Business - Legal Proceedings",
insofar as such statements summarize statutes, rules,
regulations, legal or governmental proceedings or
agreements discussed therein, are accurate and fair
summaries of such statutes, rules, regulations, legal
or governmental proceedings or agreements in all
material respects; the statutes, rules, regulations
and legal or governmental proceedings described
therein are the statutes, rules, regulations and, to
the knowledge of such counsel, legal or governmental
proceedings that are material to the Company's
business as described in the Prospectus and
Registration Statement as of the Effective Date.
19
(iv) the Registration Statement has
become effective under the Act; any required filing
of the Prospectus, and any supplements thereto,
pursuant to Rule 424(b) has been made in the manner
and within the time period required by Rule 424(b);
to the knowledge of such counsel, no stop order
suspending the effectiveness of the Registration
Statement has been issued, no proceedings for that
purpose have been instituted or threatened and the
Registration Statement and the Prospectus (other than
the financial statements and other financial
information contained therein, as to which such
counsel need express no opinion) comply as to form in
all material respects with the applicable
requirements of the Act and the Exchange Act and the
respective rules thereunder;
(v) this Agreement has been duly
authorized, executed and delivered by the Company;
(vi) the Company is not and, after
giving effect to the offering and sale of the
Securities and the application of the proceeds
thereof as described in the Prospectus, would not be,
an "investment company" as defined in the Investment
Company Act of 1940, as amended;
(vii) no consent, approval,
authorization, filing with or order of any court or
governmental agency or body is required in connection
with the transactions contemplated herein, except
such as have been obtained under the Act and the
Exchange Act, such as may be required under the blue
sky laws of any jurisdiction in connection with the
purchase and distribution of the Securities by the
Underwriters in the manner contemplated in this
Agreement and in the Prospectus, such as may be
required by the NASD and such other approvals
(specified in such opinion) as have been obtained;
(viii) neither the issue and sale of the
Securities, nor the consummation of any other of the
transactions herein contemplated nor the fulfillment
of the terms hereof, all as described in the
Prospectus, will conflict with, result in a breach or
violation of or imposition of any lien, charge or
encumbrance upon any property or assets of the
Company or its subsidiaries or PA Contractors
pursuant to, (i) the charter or by-laws of the
Company or its subsidiaries or PA Contractors, (ii)
the terms of any contract or agreement included as an
exhibit to the Company's Annual Report on Form 10-K
for the year ended December 31, 2000, or to any
reports on Form 10-Q or Form 8-K filed since the
filing of such Form 10-K, or (iii) any statute, law,
rule or regulation or to the knowledge of such
counsel, any judgment, order or decree applicable to
the Company or its subsidiaries or PA Contractors of
any court, regulatory body, administrative agency,
governmental body, arbitrator or other authority
having jurisdiction over the Company or its
subsidiaries or any of its or their properties; and
20
(ix) no holders of securities of the
Company have rights to the registration of such
securities under the Registration Statement either
pursuant to the Registration Rights Agreement or, to
the knowledge of such counsel, otherwise.
In rendering such opinion, such counsel may rely (A) as to matters
involving the application of laws of any jurisdiction other than the
States of Delaware, New York or the Federal laws of the United States,
to the extent they deem proper and specified in such opinion, upon the
opinion of other counsel of good standing whom they believe to be
reliable and who are satisfactory to counsel for the Underwriters and
(B) as to matters of fact, to the extent they deem proper, on
certificates of responsible officers of the Company and public
officials. References to the Prospectus in this paragraph (b) include
any supplements thereto at the Closing Date.
In addition, such counsel shall also have furnished to the
Representatives a letter dated the Closing Date stating that such
counsel has no reason to believe that on the Effective Date or the date
the Registration Statement was last deemed amended the Registration
Statement contained any untrue statement of a material fact or omitted
to state any material fact required to be stated therein or necessary
to make the statements therein not misleading or that the Prospectus as
of its date and on the Closing Date included or includes any untrue
statement of a material fact or omitted or omits to state a material
fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading (in each case,
other than the financial statements and other financial information
contained therein, as to which such counsel need not comment).
(c) The Company shall have requested and caused Sidley
Xxxxxx Xxxxx & Xxxx, regulatory counsel for the Company, to have
furnished their opinion, dated the Closing Date and addressed to the
Representatives, substantially in the form set forth in Schedule III
hereto.
(d) The Company shall have requested and caused Xxxxxxxxx
Traurig, LLP, Florida counsel for the Company, to have furnished to the
Representatives their opinion, dated the Closing Date and addressed to
the Representatives, to the effect that:
(i) AmeriPath Florida, Inc. ("AmeriPath
Florida") has been duly incorporated and is validly existing
as a corporation in good standing under the laws of the State
of Florida, with full corporate power and authority to own or
lease, as the case may be, and to operate its properties and
conduct its business as described in the Prospectus; and
(ii) all the outstanding shares of capital stock
of AmeriPath Florida have been duly and validly authorized and
issued and are fully paid and nonassessable, and are owned of
record by the Company, to the knowledge of such counsel, free
and clear of any perfected security interest or any
21
other security interest, adverse claim, lien or other
encumbrance other than those pursuant to the Company's credit
facility or referenced in the Prospectus;
(e) The Company shall have requested and caused
Xxxxxxxxxxx, Blend, Xxxxxxxx & Xxxx, Inc., Texas counsel for the Company, to
have furnished to the Representatives their opinion, dated the Closing Date and
addressed to the Representatives, to the effect that:
(i) DFW 5.01(a) Corporation ("DFW") has been
duly incorporated and is validly existing as a non-profit
corporation in good standing under the laws of the State of
Texas, with full corporate power and authority to own or
lease, as the case may be, and to operate its properties and
conduct its business as described in the Prospectus; and
(ii) according to the Articles of Incorporation
of DFW it has members, and the sole member of DFW is the
Company. To such counsel's knowledge, except as otherwise set
forth in the Prospectus, the membership held by the Company in
DFW is not subject to any security interest, claim, lien or
encumbrance;
(f) The Representatives shall have received from Cravath,
Swaine & Xxxxx, counsel for the Underwriters, such opinion or opinions, dated
the Closing Date and addressed to the Representatives, with respect to the
issuance and sale of the Securities, the Registration Statement, the Prospectus
(together with any supplement thereto) and other related matters as the
Representatives may reasonably 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.
(g) The Company shall have furnished to the
Representatives a certificate of the Company, signed by the Chairman of the
Board, the President and the principal financial or accounting officer of the
Company, dated the Closing Date, to the effect that the signers of such
certificate have carefully examined the Registration Statement, the Prospectus,
any supplements to the Prospectus and this Agreement and that:
(i) the representations and warranties of the
Company in this Agreement are true and correct on and as of
the Closing Date with the same effect as if made on the
Closing Date and the Company has complied with all the
agreements and satisfied all the conditions on its part to be
performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness
of the Registration Statement has been issued and no
proceedings for that purpose have been instituted or, to the
Company's knowledge, threatened; and
22
(iii) since the date of the most recent financial
statements included or incorporated by reference in the
Prospectus (exclusive of any supplement thereto), there has
been no material adverse effect on the condition (financial or
otherwise), prospects, earnings, business or properties of the
Company and its subsidiaries, taken as a whole, whether or not
arising from transactions in the ordinary course of business,
except as set forth in or contemplated in the Prospectus
(exclusive of any supplement thereto).
(h) The Company shall have requested and caused Deloitte
& Touche LLP to have furnished to the Representatives, at the Execution
Time and at the Closing Date, letters, dated respectively as of the
Execution Time and as of the Closing Date, in form and substance
satisfactory to the Representatives, confirming that they are
independent certified public accountants within the meaning of the Act
and the respective applicable rules and regulations adopted by the SEC
thereunder and that they have performed a review of the unaudited
interim financial information of the Company for the six-month period
ended June 30, 2001, in accordance with Statement on Auditing Standards
No. 71, and stating in effect that:
(i) in their opinion the audited consolidated
financial statements included or incorporated by reference in
the Registration Statement comply as to form in all material
respects with the applicable accounting requirements of the
Act and the Exchange Act and the related rules and regulations
adopted by the SEC;
(ii) on the basis of a reading of the latest
unaudited financial statements made available by the Company
and its subsidiaries; their limited review, in accordance with
standards established under Statement on Auditing Standards
No. 71, of the unaudited interim financial information for the
six-month period ended June 30, 2001, included or incorporated
by reference in the Registration Statement carrying out
certain specified procedures (but not an examination in
accordance with generally accepted auditing standards) which
would not necessarily reveal matters of significance with
respect to the comments set forth in such letter; a reading of
the minutes of the meetings of the stockholders and the board
of directors, of the audit and compensation committees of the
board of directors and of the compliance committee of the
Company; and inquiries of certain officials of the Company who
have responsibility for financial and accounting matters of
the Company and its subsidiaries as to transactions and events
subsequent to June 30, 2001, nothing came to their attention
which caused them to believe that:
(1) any unaudited financial statements
included or incorporated by reference in the
Registration Statement do not comply as to form in
all material respects with applicable accounting
requirements of the Act as it applies to Form 10-Q
and with the related rules and regulations adopted by
the Commission;
23
or any material modifications should be made to the
unaudited condensed consolidated financial
statements, included in or incorporated by reference
in the Registration Statement, for them to be in
conformity with accounting principles generally
accepted in the United States of America.
(2) with respect to the period
subsequent to June 30, 2001, at a specified date not
more than five days prior to the date of the letter,
there was any change in the capital stock, increase
in long-term debt, or decrease in net current assets
or stockholder's equity of the Company and its
subsidiaries as compared with the amounts shown on
the June 30, 2001 unaudited condensed consolidated
balance sheet included or incorporated by reference
in the Registration Statement or for the period from
July 1, 2001 to such specified date there were any
decreases, as compared with the corresponding period
in the preceding year, in consolidated net revenues,
income before income taxes, income from operations,
or in total or per share amounts of income before
extraordinary items or of net income or any increase,
as compared with the corresponding period in the
preceding year, in the provision for doubtful
accounts of the Company and its subsidiaries, except
in all instances for changes or decreases set forth
in such letter, in which case the letter shall be
accompanied by an explanation by the Company as to
the significance thereof unless said explanation is
not deemed necessary by the Representatives; or
(iii) on the basis of having compared executive
compensation information under the heading "Annual
Compensation" in the Summary Compensation Table with the
related requirements of Item 402 of Regulation S-K; having
compared information included under the heading "Selected
Financial Data" with the requirement of Item 301 of Regulation
S-K; having compared the information included under the
heading "Unaudited Consolidated Statements of Operations" with
the requirements of Item 302 of Regulation S-K; and with
respect to each of the above, having inquired of certain
officials of the Company who have responsibility for financial
and accounting matters of the Company, nothing came to their
attention which caused them to believe that the information
provided does not conform in all material respects with the
disclosure requirements of Items 402, 301 and 302 of
Regulation S-K, respectively,
(iv) they have performed certain other specified
procedures as a result of which they determined that certain
information of an accounting, financial or statistical nature
(which is limited to accounting, financial or statistical
information derived from the general accounting records of the
Company and its subsidiaries) set forth in the Registration
Statement and the Prospectus and in Exhibit 12 to the
Registration Statement, including,
24
but not limited to, the information set forth under the
captions "Prospectus Summary", "Risk Factors",
"Capitalization", "Selected Financial Data", "Management's
Discussion and Analysis of Financial Condition and Results of
Operations", "Business", "Management" and "Certain
Transactions" in the Prospectus, the information included or
incorporated by reference in Item 11 of the Company's Annual
Report on Form 10-K, incorporated by reference in the
Registration Statement and the Prospectus, and the information
included in Item 5 of the Company's Current Report on Form 8-K
filed on April 6, 2001 and incorporated by reference in the
Registration Statement, agrees with the accounting records of
the Company and its subsidiaries, excluding any questions of
legal interpretation; and
References to the Prospectus in this paragraph (h)
include any supplement thereto at the date of the letter.
(i) The Company shall have requested and caused Ernst &
Young LLP to have furnished to the Representatives, at the Execution
Time and at the Closing Date, letters, dated respectively as of the
Execution Time and as of the Closing Date, in form and substance
satisfactory to the Representatives, confirming that they are
independent accountants within the meaning of the Act and the Exchange
Act and the respective applicable rules and regulations adopted by the
Commission thereunder and having obtained and read representation
letters dated [ _____, 2001] from Deloitte & Touche LLP and Xxxxx Xxxx,
President of AmeriPath and former Chief Executive Officer of Inform DX,
nothing came to their attention that caused them to believe that there
are any events or transactions which have occurred since December 31,
1999 or are pending that would have a material effect on the audited
financial statements for the year ended December 31, 1999 at that date
or for the period then ended, or that are of such significance in
relation to the Company's affairs to require mention in a note to the
consolidated financial statements in order to make them not misleading
regarding the financial position, results of operations, or cash flows
of the Company.
(j) Subsequent to the Execution Time or, if earlier, the
dates as of which information is given in the Registration Statement
(exclusive of any amendment thereof) and the Prospectus (exclusive of
any supplement thereto), there shall not have been (i) any change or
decrease specified in the letter or letters referred to in paragraph
(h) of this Section 6 or (ii) any change, or any development involving
a prospective change, in or affecting the condition (financial or
otherwise), earnings, business or properties of the Company and its
subsidiaries, taken as a whole, whether or not arising from
transactions in the ordinary course of business, except as set forth in
or contemplated in the Prospectus (exclusive of any supplement thereto)
the effect of which, in any case referred to in clause (i) or (ii)
above, is, in the sole judgment of the Representatives, so material and
adverse as to make it impractical or inadvisable to proceed with the
offering or delivery of the Securities as contemplated by the
Registration Statement (exclusive of any amendment thereof) and the
Prospectus (exclusive of any supplement thereto).
25
(k) Prior to the Closing Date, the Company shall have
furnished to the Representatives such further information, certificates
and documents as the Representatives may reasonably request.
(l) The Securities shall have been authorized for
quotation on the Nasdaq National Market, and reasonably satisfactory
evidence of such action shall have been provided to the
Representatives.
(m) At the Execution Time, the Company shall have
furnished to the Representatives a letter substantially in the form of
Exhibit A hereto from each executive officer and director of the
Company, addressed to the Representatives.
If any of the conditions specified in this Section 6 shall not
have been fulfilled in all material respects when and as provided in this
Agreement, or if any of the opinions and certificates mentioned above or
elsewhere in this Agreement shall not be in all material respects reasonably
satisfactory in form and substance to the Representatives and counsel for the
Underwriters, this Agreement and all obligations of the Underwriters hereunder
may be canceled at, or at any time prior to, the Closing Date by the
Representatives. Notice of such cancelation shall be given to the Company in
writing or by telephone or facsimile confirmed in writing.
The documents required to be delivered by this Section 6 shall
be delivered at the office of Cravath, Swaine & Xxxxx, counsel for the
Underwriters, at 000 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, on the Closing
Date.
7. Reimbursement of Underwriters' Expenses. If the sale
of the Securities provided for herein is not consummated because any condition
to the obligations of the Underwriters set forth in Section 6 hereof is not
satisfied, because of any termination pursuant to Section 10 hereof or because
of any refusal, inability or failure on the part of the Company to perform any
agreement herein or comply with any provision hereof other than by reason of a
default by any of the Underwriters, the Company will reimburse the Underwriters
severally through Xxxxxxx Xxxxx Barney Inc. on demand for all reasonable
out-of-pocket expenses (including reasonable fees and disbursements of counsel)
that shall have been incurred by them in connection with the proposed purchase
and sale of the Securities.
8. Indemnification and Contribution. (a) The Company
agrees to indemnify and hold harmless each Underwriter, the directors, officers,
employees and agents of each Underwriter and each person who controls any
Underwriter within the meaning of either the Act or the Exchange Act against any
and all losses, claims, damages or liabilities, joint or several, to which they
or any of them may become subject under the Act, the Exchange Act or other
Federal or state statutory law or regulation, at common law or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are
26
based upon any untrue statement or alleged untrue statement of a material fact
contained in the registration statement for the registration of the Securities
as originally filed or in any amendment thereof, or in any Preliminary
Prospectus or the Prospectus, or in any amendment thereof or supplement thereto,
or arise out of or are based upon the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, and agrees to reimburse each such indemnified
party, as incurred, for any legal or other expenses reasonably incurred by them
in connection with investigating or defending any such loss, claim, damage,
liability or action; 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 any such untrue statement or alleged untrue
statement or omission or alleged omission made therein in reliance upon and in
conformity with written information furnished to the Company by or on behalf of
any Underwriter through the Representatives specifically for inclusion therein;
provided, further, that with respect to any untrue statement or omission of
material fact made in any Preliminary Prospectus, the indemnity agreement
contained in this Section 8(a) shall not inure to the benefit of any Underwriter
from whom the person asserting any such loss, claim, damage or liability
purchased the Securities concerned, to the extent that any such loss, claim,
damage or liability of such Underwriter occurs under the circumstance where it
shall be determined by a court of competent jurisdiction by final and
non-appealable judgment that (i) delivery of the Prospectus was required under
the Act, (ii) the Company had previously furnished copies of the Prospectus to
the Representatives, (iii) the untrue statement or omission of a material fact
contained in the Preliminary Prospectus was corrected in the Prospectus and (iv)
such loss, claim, damage or liability results from the fact that there was not
sent or given to such person at or prior to the written confirmation of the sale
of such Securities to such person, a copy of the Prospectus. This indemnity
agreement will be in addition to any liability which the Company may otherwise
have.
(b) Each Underwriter severally and not jointly agrees to
indemnify and hold harmless the Company, each of its directors, each of its
officers who signs the Registration Statement, and each person who controls the
Company within the meaning of either the Act or the Exchange Act, to the same
extent as the foregoing indemnity to each Underwriter, but only with reference
to written information relating to such Underwriter furnished to the Company by
or on behalf of such Underwriter through the Representatives specifically for
inclusion in the documents referred to in the foregoing indemnity. This
indemnity agreement will be in addition to any liability which any Underwriter
may otherwise have. The Company acknowledges that the statements set forth in
the last paragraph of the cover page regarding delivery of the Securities and,
under the heading "Underwriting", (i) the sentences related to concessions and
reallowances and (ii) the paragraphs related to stabilization, syndicate
covering transactions, short sales, penalty bids, passive market making and
online offers and sales of Securities in any Preliminary Prospectus and the
Prospectus constitute the only information furnished in writing by or on behalf
of the several Underwriters for inclusion in any Preliminary Prospectus or the
Prospectus.
(c) Promptly after receipt by an indemnified party under
this Section 8 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 this Section 8, notify the indemnifying party in writing of the
commencement thereof; but the failure so to notify the indemnifying party (i)
will not relieve it from liability under paragraph (a) or (b) above unless and
to the extent it did not otherwise learn of such action and such failure
27
results in the forfeiture by the indemnifying party of substantial rights and
defenses and (ii) will not, in any event, relieve the indemnifying party from
any obligations to any indemnified party other than the indemnification
obligation provided in paragraph (a) or (b) above. The indemnifying party shall
be entitled to appoint counsel of the indemnifying party's choice at the
indemnifying party's expense to represent the indemnified party in any action
for which indemnification is sought (in which case the indemnifying party shall
not thereafter be responsible for the fees and expenses of any separate counsel
retained by the indemnified party or parties except as set forth below);
provided, however, that such counsel shall be reasonably satisfactory to the
indemnified party. Notwithstanding the indemnifying party's election to appoint
counsel to represent the indemnified party in an action, the indemnified party
shall have the right to employ separate counsel (including local counsel), and
the indemnifying party shall bear the reasonable fees, costs and expenses of
such separate counsel if (i) the use of counsel chosen by the indemnifying party
to represent the indemnified party would present such counsel with a conflict of
interest, (ii) the actual or potential defendants in, or targets of, any such
action include both the indemnified party and the indemnifying party and the
indemnified party shall have reasonably concluded that there may be legal
defenses available to it and/or other indemnified parties which are different
from or additional to those available to the indemnifying party, (iii) the
indemnifying party shall not have employed counsel reasonably satisfactory to
the indemnified party to represent the indemnified party within a reasonable
time after notice of the institution of such action or (iv) the indemnifying
party shall authorize in writing the indemnified party to employ separate
counsel at the expense of the indemnifying party. An indemnifying party will
not, without the prior written consent of the indemnified parties, settle or
compromise or consent to the entry of any judgment with respect to any pending
or threatened claim, action, suit or proceeding in respect of which
indemnification or contribution may be sought hereunder (whether or not the
indemnified parties are actual or potential parties to such claim or action)
unless such settlement, compromise or consent includes an unconditional release
of each indemnified party from all liability arising out of such claim, action,
suit or proceeding.
(d) In the event that the indemnity provided in paragraph
(a) or (b) of this Section 8 is unavailable to or insufficient to hold harmless
an indemnified party for any reason, the Company and the Underwriters severally
agree to contribute to the aggregate losses, claims, damages and liabilities
(including legal or other expenses reasonably incurred in connection with
investigating or defending same) (collectively "Losses") to which the Company
and one or more of the Underwriters may be subject in such proportion as is
appropriate to reflect the relative benefits received by the Company on the one
hand and by the Underwriters on the other from the offering of the Securities;
provided, however, that in no case shall any Underwriter (except as may be
provided in any agreement among underwriters relating to the offering of the
Securities) be responsible for any amount in excess of the underwriting discount
or commission applicable to the Securities purchased by such Underwriter
hereunder. If the allocation provided by the immediately preceding sentence is
unavailable for any reason, the Company and the Underwriters severally shall
contribute in such proportion as is appropriate to reflect not only such
relative benefits but also the relative fault of the Company on the one hand and
of the Underwriters on the other in connection with the
28
statements or omissions which resulted in such Losses as well as any other
relevant equitable considerations. Benefits received by the Company shall be
deemed to be equal to the total net proceeds from the offering (before deducting
expenses) received by each of them, and benefits received by the Underwriters
shall be deemed to be equal to the total underwriting discounts and commissions,
in each case as set forth on the cover page of the Prospectus. Relative fault
shall be determined by reference to, among other things, whether any untrue or
any alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information provided by the Company
on the one hand or the Underwriters on the other, the intent of the parties and
their relative knowledge, access to information and opportunity to correct or
prevent such untrue statement or omission. The Company and the Underwriters
agree that it would not be just and equitable if contribution were determined by
pro rata allocation or any other method of allocation which does not take
account of the equitable considerations referred to above. Notwithstanding the
provisions of this paragraph (e), no person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this Section 8, each person who controls an
Underwriter within the meaning of either the Act or the Exchange Act and each
director, officer, employee and agent of an Underwriter shall have the same
rights to contribution as such Underwriter, and each person who controls the
Company within the meaning of either the Act or the Exchange Act, each officer
of the Company who shall have signed the Registration Statement and each
director of the Company shall have the same rights to contribution as the
Company, subject in each case to the applicable terms and conditions of this
paragraph (e).
9. Default by an Underwriter. If any one or more
Underwriters shall fail to purchase and pay for any of the Securities agreed to
be purchased by such Underwriter or Underwriters hereunder and such failure to
purchase shall constitute a default in the performance of its or their
obligations under this Agreement, the remaining Underwriters shall be obligated
severally to take up and pay for (in the respective proportions which the amount
of Securities set forth opposite their names in Schedule I hereto bears to the
aggregate amount of Securities set forth opposite the names of all the remaining
Underwriters) the Securities which the defaulting Underwriter or Underwriters
agreed but failed to purchase; provided, however, that in the event that the
aggregate amount of Securities which the defaulting Underwriter or Underwriters
agreed but failed to purchase shall exceed 10% of the aggregate amount of
Securities set forth in Schedule I hereto, the remaining Underwriters shall have
the right to purchase all, but shall not be under any obligation to purchase
any, of the Securities, and if such nondefaulting Underwriters do not purchase
all the Securities, this Agreement will terminate without liability to any
nondefaulting Underwriter or the Company. In the event of a default by any
Underwriter as set forth in this Section 9, the Closing Date shall be postponed
for such period, not exceeding five Business Days, as the Representatives shall
determine in order that the required changes in the Registration Statement and
the Prospectus or in any other documents or arrangements may be effected.
Nothing contained in this Agreement shall relieve any defaulting Underwriter of
its liability, if any, to the Company and any nondefaulting Underwriter for
damages occasioned by its default hereunder.
29
10. Termination. This Agreement shall be subject to
termination in the absolute discretion of the Representatives, by notice given
to the Company prior to delivery of and payment for the Securities, if at any
time prior to such time (i) trading in the Company's Common Stock shall have
been suspended by the Commission or the Nasdaq National Market or trading in
securities generally on the New York Stock Exchange or the Nasdaq National
Market shall have been suspended or limited or minimum prices shall have been
established on such Exchange or the Nasdaq National Market, (ii) a banking
moratorium shall have been declared either by Federal or New York State
authorities or (iii) there shall have occurred any outbreak or escalation of
hostilities, declaration by the United States of a national emergency or war, or
other calamity or crisis the effect of which on financial markets is such as to
make it, in the sole judgment of the Representatives, impractical or inadvisable
to proceed with the offering or delivery of the Securities as contemplated by
the Prospectus (exclusive of any supplement thereto).
11. Representations and Indemnities to Survive. The
respective agreements, representations, warranties, indemnities and other
statements of the Company or its officers and of the Underwriters set forth in
or made pursuant to this Agreement will remain in full force and effect,
regardless of any investigation made by or on behalf of any Underwriter or the
Company or any of the officers, directors, employees, agents or controlling
persons referred to in Section 8 hereof, and will survive delivery of and
payment for the Securities. The provisions of Sections 7 and 8 hereof shall
survive the termination or cancelation of this Agreement.
12. Notices. All communications hereunder will be in
writing and effective only on receipt, and, if sent to the Representatives, will
be mailed, delivered or telefaxed to the Xxxxxxx Xxxxx Xxxxxx Inc. General
Counsel (fax no.: (000) 000-0000) and confirmed to the General Counsel, Xxxxxxx
Xxxxx Barney Inc., at 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, 00000,
Attention: General Counsel; or, if sent to the Company, will be mailed,
delivered or telefaxed to the Chief Executive Officer (fax no.: (000) 000-0000)
and confirmed to it at AmeriPath, Inc., at 0000 Xxxxxx Xxxx, Xxxxx 000, Xxxxxxx
Xxxxx, Xxxxxxx 00000, Attention: Chief Executive Officer.
13. Successors. This Agreement will inure to the benefit
of and be binding upon the parties hereto and their respective successors and
the officers, directors, employees, agents and controlling persons referred to
in Section 8 hereof, and no other person will have any right or obligation
hereunder.
14. Applicable Law. This Agreement will be governed by
and construed in accordance with the laws of the State of New York applicable to
contracts made and to be performed within the State of New York.
15. Counterparts. This Agreement may be signed in one or
more counterparts, each of which shall constitute an original and all of which
together shall constitute one and the same agreement.
16. Headings. The section headings used herein are for
convenience only and shall not affect the construction hereof.
30
17. Definitions. The terms which follow, when used in
this Agreement, shall have the meanings indicated.
"Act" shall mean the Securities Act of 1933, as amended, and
the rules and regulations of the Commission promulgated thereunder.
"Business Day" shall mean any day other than a Saturday, a
Sunday or a legal holiday or a day on which banking institutions or
trust companies are authorized or obligated by law to close in New York
City.
"Commission" shall mean the Securities and Exchange
Commission.
"Effective Date" shall mean each date and time that the
Registration Statement, any post-effective amendment or amendments
thereto and any Rule 462(b) Registration Statement became or become
effective.
"Exchange Act" shall mean the Securities Exchange Act of 1934,
as amended, and the rules and regulations of the Commission promulgated
thereunder.
"Execution Time" shall mean the date and time that this
Agreement is executed and delivered by the parties hereto.
"Preliminary Prospectus" shall mean any preliminary prospectus
referred to in paragraph 1(i)(a) above and any preliminary prospectus
included in the Registration Statement at the Effective Date that omits
Rule 430A Information.
"Prospectus" shall mean the prospectus relating to the
Securities that is first filed pursuant to Rule 424(b) after the
Execution Time or, if no filing pursuant to Rule 424(b) is required,
shall mean the form of final prospectus relating to the Securities
included in the Registration Statement at the Effective Date.
"Registration Statement" shall mean the registration statement
referred to in paragraph 1(i)(a) above, including exhibits and
financial statements, as amended at the Execution Time (or, if not
effective at the Execution Time, in the form in which it shall become
effective) and, in the event any post-effective amendment thereto or
any Rule 462(b) Registration Statement becomes effective prior to the
Closing Date, shall also mean such registration statement as so amended
or such Rule 462(b) Registration Statement, as the case may be. Such
term shall include any Rule 430A Information deemed to be included
therein at the Effective Date as provided by Rule 430A.
"Rule 424", "Rule 430A" and "Rule 462" refer to such rules
under the Act.
31
"Rule 430A Information" shall mean information with respect to
the Securities and the offering thereof permitted to be omitted from
the Registration Statement when it becomes effective pursuant to Rule
430A.
"Rule 462(b) Registration Statement" shall mean a registration
statement and any amendments thereto filed pursuant to Rule 462(b)
relating to the offering covered by the registration statement referred
to in Section 1(a) hereof.
If the foregoing is in accordance with your understanding of
our agreement, please sign and return to us the enclosed duplicate hereof,
whereupon this letter and your acceptance shall represent a binding agreement
among the Company and the several Underwriters.
Very truly yours,
AmeriPath, Inc.
By:
-----------------------
Name:
Title:
The foregoing Agreement is hereby
confirmed and accepted as of the
date first above written.
Xxxxxxx Xxxxx Xxxxxx Inc.
Credit Suisse First Boston Corporation
U.S. Bancorp Xxxxx Xxxxxxx Inc.
First Union Securities, Inc.
By: Xxxxxxx Xxxxx Xxxxxx Inc.
By:
------------------------------------
Name:
Title:
For themselves and the other
several Underwriters named in
Schedule I to the foregoing
Agreement.
32
SCHEDULE I
NUMBER OF UNDERWRITTEN
UNDERWRITERS SECURITIES TO BE PURCHASED
------------ --------------------------
Xxxxxxx Xxxxx Barney Inc...............................................
Credit Suisse First Boston Corporation.................................
U.S. Bancorp Xxxxx Xxxxxxx Inc.........................................
First Union Securities, Inc............................................
--------------------------
Total ..................................................................
SCHEDULE II
Inform DX Shareholders
Calver Fund, Inc.
00000 Xxxxxx Xxxxxxx, Xxxxx 000
Xxxxxx, XX 00000
Chrysalis Ventures Limited Partnership
000 Xxxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxxx, XX 00000
DFW Capital Partners, LP
000 Xxxxx X. Xxxx Xxxx., 0xx Xxxxx
Xxxxxxx, XX 00000
Finova Mezzanine Capital (1)
000 Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxx, XX 00000
HLM Partners VII, LP (2)
000 Xxxxxxxx Xxxxxx
Xxxxxx, XX 00000
HLM Partners V, LP (2)
000 Xxxxxxxx Xxxxxx
Xxxxxx, XX 00000
X.X. Partnership, LTD
000 Xxxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxxx, XX 00000
XxXxxxxx Investment Company
XX Xxx 0000
Xxxxxxxxx, XX 00000
Noro-Xxxxxxx Partners III, LP (3)
0000 Xxxxxxxxx Xxxxxxx
Xxxxxxxx 0
Xxxxxxx, XX 00000
Questor Partners Fund, LP
0000 Xxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxx, XX 00000
Questor Side-by-Side Partners, LP
0000 Xxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxx, XX 00000
Richland Ventures LP
000 00xx Xxxxxx, Xxxxx, Xxxxx 000
Xxxxxxxxx, XX 00000
Richland Ventures II, LP
000 00xx Xxxxxx, Xxxxx, Xxxxx 000
Xxxxxxxxx, XX 00000
SSM Venture Partners, LP
000 Xxxxxxxxx Xxxx, Xxxxx 000
Xxxxxxx, XX 00000
Trico & Company
National Bank of Commerce
Xxxxxxxx, XX 00000
Union Street Partners
000 Xxxxxxxxx Xxxx Xxxxxx
Xxxxxxxxx, XX 00000-0000
Suntrust Equitable Securities Corporation
000 Xxxxxxxxx Xxxx Xxxxxx
Xxxxxxxxx, XX 00000-0000
ABS Capital Partners II, LP 000 Xxxxxxx Xxxx, X-00 Xxxxxxxxx, XX 00000
---------------
(1) 11,920 shares held by Finova Mezzanine Capital are not subject to the
Inform DX Transfer Restrictions.
(2) An aggregate of 17,614 shares held by either HLM Partners VII, LP or
HLM Partners V, LP are not subject to the Inform DX Transfer
Restrictions.
(3) 9,743 shares held by Noro-Xxxxxxx Partners III, LP are not subject to
the Inform DX Transfer Restrictions.
35
SCHEDULE III
Form of Opinion of Sidley Xxxxxx Xxxxx & Xxxx
EXHIBIT A
[LETTERHEAD OF OFFICER, DIRECTOR OR STOCKHOLDER OF CORPORATION]
AmeriPath, Inc.
Public Offering of Common Stock
, 2001
Xxxxxxx Xxxxx Barney Inc.
Credit Suisse First Boston Corporation
U.S. Bancorp Xxxxx Xxxxxxx Inc.
First Union Securities, Inc.
As Representatives of the several Underwriters,
c/o Xxxxxxx Xxxxx Barney Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
This letter is being delivered to you in connection with the
proposed Underwriting Agreement (the "Underwriting Agreement"), between
AmeriPath, Inc., a Delaware corporation (the "Company"), and each of you as
representatives of a group of Underwriters named therein, relating to an
underwritten public offering of Common Stock, $ par value (the "Common Stock"),
of the Company.
In order to induce you and the other Underwriters to enter
into the Underwriting Agreement, the undersigned will not, without the prior
written consent of Xxxxxxx Xxxxx Xxxxxx Inc., offer, sell, contract to sell,
pledge or otherwise dispose of, (or enter into any transaction which is designed
to, or might reasonably be expected to, result in the disposition (whether by
actual disposition or effective economic disposition due to cash settlement or
otherwise) by the undersigned or any affiliate of the undersigned or any person
in privity with the undersigned or any affiliate of the undersigned), directly
or indirectly, including the filing (or participation in the filing) of a
registration statement with the Securities and Exchange Commission in respect
of, or establish or increase a put
equivalent position or liquidate or decrease a call equivalent position within
the meaning of Section 16 of the Securities Exchange Act of 1934, as amended,
and the rules and regulations of the Securities and Exchange Commission
promulgated thereunder with respect to, any shares of capital stock of the
Company or any securities convertible into, or exercisable or exchangeable for
such capital stock, or publicly announce an intention to effect any such
transaction, beginning as of the date hereof and continuing for a period of 90
(ninety) days after the date of the Underwriting Agreement, other than shares of
Common Stock disposed of as bona fide gifts approved by Xxxxxxx Xxxxx Barney
Inc.
If for any reason the Underwriting Agreement shall be
terminated prior to the Closing Date (as defined in the Underwriting Agreement),
the agreement set forth above shall likewise be terminated.
Yours very truly,
[SIGNATURE OF OFFICER, DIRECTOR OR
STOCKHOLDER]
[NAME AND ADDRESS OF OFFICER, DIRECTOR
OR STOCKHOLDER]
