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Exhibit 10.33
STOCK ISSUANCE AGREEMENT
This STOCK ISSUANCE AGREEMENT is made as of November 4, 1996 among
Ameripath, Inc., a Delaware corporation (the "Company"), The First National
Bank of Boston ("FNBB") and FSC Corp., a Massachusetts corporation and an
affiliate of FNBB.
Recitals
The Company, FNBB and NationsBank, N.A. (South) entered into an
Amendment No. 2 dated as of November 4, 1996 to the Credit Agreement dated as
of May 29, 1996, as amended and as in effect on the date hereof (the "Credit
Agreement"), for which the Company agreed to pay to FNBB an amendment fee
consisting of cash and 11,111 shares of Common Stock, $.01 par value per
share, of the Company (the "Common Stock Payment"), as described in the letter
agreement between FNBB and the Company dated as of the date hereof and attached
hereto.
FNBB is willing to assign its right to the Common Stock Payment to
to FSC Corp ("FSC") and the Company is willing to issue and sell to FSC 11,111
shares of Common Stock, all on the terms and conditions set forth herein,
Agreement
In consideration of the foregoing, and the representations,
warranties, covenants and conditions set forth below, the parties hereto,
intending to be legally bound, hereby agree as follows:
1. Definitions. Capitalized terms defined in the Credit
Agreement and used but not otherwise defined in this Agreement are used herein
as so defined.
2. Assignment. FNBB hereby assigns to FSC, and FSC hereby
assumes, all of FNBB's rights to the Common Stock Payment.
3. Sale, and purchase Securities. On the terms and subject to the
conditions hereof, the Company hereby agrees to sell to FSC, and by its
execution of this Agreement FSC agrees to accept from the Company as payment by
the Company of the Common Stock Payment, 11,111 shares of the Company's
Common Stock. The shares of Common Stock being purchased by FSC hereunder are
referred to herein as the "Securities". The Company agrees to deliver
certificates for the Securities to FSC, registered in the name of FSC,
immediately following the execution of this Agreement.
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4. Representations and Warranties of the Company. The Company
represents and warrants to FNBB and FSC that;
4.1. Each of the Company and its Subsidiaries is duly
organized and validly existing and in good standing under the
laws of the jurisdiction of its incorporation, with all power and
authority, corporate or otherwise, necessary to enter into and
perform this Agreement and own its properties and carry on the
business now conducted or proposed to be conducted by it. The
Company has made available to FNBB and FSC true and complete copies
of the Company's certificate of incorporation and the by-laws as in
effect on the date hereof.
4.2. The Company has taken all corporate action required to
authorize the execution and delivery of this Agreement and the
issuance of the Securities.
4.3. The Securities, when issued, will be duly authorized,
validly issued, fully paid and non-assessable.
4.4. This Agreement is a legal, valid and binding obligation
of the Company, enforceable in accordance with terms.
5. Incidental ("Piggy-Back") Registration Rights. In the event
the Company effects any registration of shares of its capital stock under the
Securities Act of 1933, as amended, for its own account or for the account of
any other Person subsequent to the initial registration by the Company of
shares of its capital stock, then FSC shall have the right to include the
Securities in such registration if and to the extent of the most favorable
rights of any other holder of any other shares of capital stock of the Company
to include shares in such registration. Notwithstanding the foregoing
provisions of this Section 5, in the event such registration relates to an
underwritten offering (whether or not on a from commitment basis), if the
managing underwriter of such underwritten offering shall determine that the
shares to be included in such registration should be limited due to market
conditions or otherwise, all of the Securities shall be excluded prior to the
exclusion of any other shares not held by officers or employees of the Company
and shall be included prior to the Inclusion of any shares held by officers or
employees of the Company.
6. Indeminities. The Company agrees to indemnify and hold
harmless FSC and FNBB, from and against all losses, damages, liabilities and
expenses (including without limitation reasonable attorneys fees and charges)
resulting from any breach of any representation, warranty or agreement of such
indemnifying party or any misrepresentation by such indemnifying party in this
Agreement.
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7. Restrictions on Transfer,
7.1. Restrictive Legend. All certificates representing
Securities shall bear a legend in substantially the following form:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE WERE ISSUED IN
A PRIVATE PLACEMENT, WITHOUT REGISTRATION UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "ACT"), AND MAY NOT BE SOLD, ASSIGNED, PLEDGED
OR OTHERWISE TRANSFERRED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION
UNDER THE ACT COVERING THE TRANSFER OR A LEGAL OPINION OF COUNSEL
ACCEPTABLE TO THE ISSUER THAT REGISTRATION UNDER THE ACT IS NOT
REQUIRED."
7.2. Termination of Restrictions. The restrictions imposed
by Section 7.1 hereof upon the transferability of Securities
shall cease and terminate as to any particular Securities when, in
the written opinion of Ropes & Xxxx or other counsel reasonably
acceptable to the Company, which opinion shall also be delivered and
reasonably acceptable to the Company's transfer agent, (i) such
restrictions are no longer required in order to assure compliance
with the Securities Act or (ii) such Securities shall have been
registered under the Securities Act or transferred in compliance with
Rule 144 thereunder. Whenever such restrictions shall cease and
terminate as to any Securities or such Securities shall be
transferable in compliance with paragraph (k) of Rule 144, the holder
thereof shall be entitled to receive from the Issuer, without
expense, new certificates not bearing the legend set forth in Section
7.1 hereof.
8. Miscellaneous.
8.1. This Agreement shall be considered a Credit Document.
8.2. This Agreement and the other agreements referred to
herein set forth the entire understanding among the parties with
respect to the subject matter thereof.
8.3. This Agreement can be changed only by an instrument in
writing signed by the party against whom enforcement of such change
is sought.
8.4. This Agreement shall bind and inure to the benefit of
the parties hereto and their respective successors, assigns, heirs
and representatives; provided, however, that FSC may not assign any
of its rights hereunder except in connection with a transfer of the
Securities in compliance with the terms and conditions of Section 7
of this Agreement.
8.5. All covenants, agreements, representations and
warranties made herein shall survive the execution and delivery
hereof and transfer of any Securities.
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8.6. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original but all of
which shall together constitute one and the same instrument.
8.7. All notices, requests, consents and demands will be in
writing and will be personally delivered, mailed, postage prepaid,
telecopied or telegraphed, if to the Company to it at its address
set forth in Exhibit 1.7 of the Credit Agreement or if to FSC as
follows:
If to FSC Corp., at
000 Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
Telecopy: (000) 000-0000
Attention: Xxxx Xxxxxx
8.8. The Company recognizes that the rights of FSC under
this Agreement are unique, and; accordingly, FSC will, in
addition to such other remedies as may be available to it at law or
in equity, have the right to enforce its rights hereunder by actions
for inactive relief and specific performance to the extent permitted
by law. This Agreement is not intended to limit or abridge any
rights of FSC or FNBB which may exist apart from this Agreement.
8.9. The Company agrees that so long as any Securities
purchased hereunder remain outstanding the Company will furnish to
FSC all of the information and reports required to be furnished
to the Lenders pursuant to Section 6.4 of the Credit Agreement as in
effect on the date hereof.
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IN WITNESS WHEREOF, the parties hereto, intending to be legally bound
by the terms hereof, have caused this Agreement to be executed, under seal, as
of the date first above written by their officers or other representatives
thereunto duly authorized.
AMERIPATH, INC.
By /s/ Xxxxxx X. Xxxx
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Title: Executive Vice President and
Chief Financial Officer
THE FIRST NATIONAL BANK OF
BOSTON
By /s/ Xxxxx X. Xxxxxxx
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Title: Vice President
FSC CORP.
By: /s/ Xxxx Xxxxxx Xxxxxx
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Title: Vice President
