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EXHIBIT 1.1
6,200,000 SHARES
AMERIPATH, INC.
COMMON STOCK
($.01 PAR VALUE)
UNDERWRITING AGREEMENT
MARCH __, 1997
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March __, 1997
Xxxxxx Xxxxxxx & Co. Incorporated
Xxxx Xxxxxx Xxxxxxxx Inc.
Xxxxxxxxx & Xxxxx
Xxxxx Jaffray Inc.
The Xxxxxxxx-Xxxxxxxx Company, Inc.
c/o Morgan Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs and Mesdames:
AmeriPath, Inc., a Delaware corporation (the "Company"), proposes to issue
and sell to the several Underwriters named in Schedule II hereto (the
"Underwriters"), and certain stockholders of the Company (together with the
selling stockholders of the Additional Shares referenced in the following
paragraph, the "Selling Stockholders") named in Schedule I hereto severally
propose to sell to the several Underwriters, an aggregate of 6,200,000 shares
of the Common Stock, $.01 par value of the Company (the "Firm Shares"), of
which 5,700,000 shares are to be issued and sold by the Company and 500,000
shares are to be sold by the Selling Stockholders, each Selling Stockholder
selling the amount set forth opposite such Selling Stockholder's name in
Schedule I hereto.
The Company also proposes to issue and sell and the Selling Stockholders
also severally propose to sell to the several Underwriters not more than an
aggregate of an additional 930,000 shares of its Common Stock, $.01 par value
(the "Additional Shares"), each of the Company and each Selling Stockholder
selling the amount set forth opposite such person's name in Schedule I hereto,
if and to the extent that you, as Managers of the offering, shall have
determined to exercise, on behalf of the Underwriters, the right to purchase
such shares of common stock granted to the Underwriters in Section 3 hereof.
The Firm Shares and the Additional Shares are hereinafter collectively referred
to as the "Shares." The shares of Common Stock, $.01 par value, of the Company
to be outstanding after giving effect to the sales contemplated hereby are
hereinafter referred to as the "Common Stock." The Company and the Selling
Stockholders are hereinafter sometimes collectively referred to as the
"Sellers."
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement, including a prospectus, relating to the
Shares. The registration statement as amended at the time it becomes
effective, including the information (if any) deemed to be part of the
registration statement at the time of effectiveness pursuant to Rule 430A under
the Securities Act of 1933, as amended (the "Act"), is hereinafter referred to
as the "Registration Statement." The prospectus (as described in Rule
434(a)(1) under the Act) in the form first used to confirm sales of Shares is
herein referred to as the "Distributed Prospectus"; the prospectus included in
the Registration Statement at the time of its effectiveness (including the
information, if any, deemed to be a part of the Registration Statement at the
time of effectiveness pursuant to Rule 430A under the Act) is hereinafter
referred to as the "Filed Prospectus"; and the Distributed Prospectus and the
Filed Prospectus are hereinafter referred to collectively as the "Prospectus."
If the Company has filed an abbreviated registration statement to register
additional shares of Common Stock pursuant to Rule 462(b) under the Act (the
"Rule 462 Registration Statement"), then any reference herein to the term
"Registration Statement" shall be deemed to include such Rule 462 Registration
statement.
1. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company represents
and warrants to and agrees with each of the Underwriters that:
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(a) The Registration Statement on Form S-1 (File No. 333-17065) with
respect to the Shares, a copy of which has heretofore been delivered to
you, has been carefully prepared by the Company in conformity with the
requirements of the Act, and the published rules and regulations (the
"Rules and Regulations") of the Commission under the Act, and has been
filed with the Commission under the Act; and the Company has so prepared
and proposes so to file prior to the effective date of such registration
statement an amendment to such registration statement including the final
form of prospectus (which may omit such information as permitted by Rule
430A of the Rules and Regulations).
(b) When the Registration Statement becomes effective and as of the
date hereof, the Registration Statement and the Prospectus will conform in
all material respects to the requirements of the Act and the Rules and
Regulations. At the time the Registration Statement becomes effective and
at the date hereof, the Registration Statement will not include any untrue
statement of a material fact or omit to state any material fact required
to be stated therein or necessary to make the statements therein not
misleading. The Prospectus, when it becomes effective and as of the date
hereof and at the Closing Date (as hereinafter defined), will not include
an 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 foregoing representations, warranties and agreements
shall not apply to information contained in or omitted from the
Registration Statement or the Prospectus in reliance upon, and in
conformity with, written information furnished to the Company by or on
behalf of any Underwriter, directly or through the Representatives, or by
any Selling Stockholder, specifically for use in the preparation thereof.
(c) Subsequent to the respective dates as of which information is
given in the Registration Statement and Prospectus: (A) neither the
Company nor any of its subsidiaries or the professional association and
professional corporations, which are separate legal entities that
contract with the Company or its subsidiaries to provide physician
services in certain states (collectively, the "PA Contractors") has
incurred any liabilities or obligations (indirect, direct or contingent)
or entered into any oral or written agreements or other transactions not
in the ordinary course of business that, singly or in the aggregate,
could reasonably be expected to be material to the Company and its
subsidiaries or PA Contractors considered as a whole or that could
reasonably be expected to result in a material reduction in the earnings
of the Company and its subsidiaries considered as a whole; (B) neither
the Company nor any of its subsidiaries or PA Contractors has sustained
any loss or interference with its business or properties from strike,
fire, flood, windstorm, accident or other calamity (whether or not
covered by insurance) that, singly or in the aggregate, could reasonably
be expected to be material to the Company and its subsidiaries and PA
Contractors considered as a whole; (C) there has been no material change
in the indebtedness of the Company, no change in the capital stock of the
Company and no dividend or distribution of any kind declared, paid or
made by the Company on any class of its capital stock; and (D) there has
not been any material adverse change, nor any development that could,
singly or in the aggregate, result in a material adverse change in the
condition (financial or other), business, prospects or results of
operations of the Company and its subsidiaries and PA Contractors
considered as a whole, whether or not arising in the ordinary course of
business ("Material Adverse Effect").
(d) The financial statements, together with the related notes and
schedules, set forth in the Prospectus and elsewhere in the Registration
Statement, fairly present, on the basis stated in the Registration
Statement, the financial position and the results of operations and
changes in financial position of the Company and its consolidated
subsidiaries and PA Contractors at the respective dates or for the
respective periods therein specified. Such financial statements and
related notes and schedules have been prepared in accordance with
generally accepted accounting principles applied on a consistent basis
except as may be set forth in the Prospectus. The selected financial
data set forth in the Prospectus under the caption "Selected Consolidated
Financial Data" fairly presents, on the basis stated in the Registration
Statement, the information set forth therein.
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(e) Deloitte & Touche LLP, who have expressed their opinions on the
audited financial statements and related schedules included in the
Registration Statement, are independent public accountants as required by
the Act and the Rules and Regulations.
(f) The pro forma consolidated financial data of the Company and its
consolidated subsidiaries and PA Contractors and the related notes
thereto included in the Registration Statement and the Prospectus have
been prepared in accordance with the Commission's rules and guidelines
with respect to pro forma financial statements and have been properly
compiled on the bases described therein, and the assumptions used in the
preparation thereof are reasonable and the adjustments used therein are
appropriate to give effect to the transactions and circumstances referred
to therein.
(g) The Company and each of its subsidiaries and PA Contractors have
been duly organized and are validly existing and in good standing as
corporations under the laws of their respective jurisdictions of
organization, with corporate power and authority to own, lease and
operate their properties and to conduct their businesses as described in
the Registration Statement and Prospectus; the Company is and each of its
subsidiaries and PA Contractors are in possession of and operating in
compliance in with all franchises, grants, authorizations, licenses,
permits, easements, consents, certificates and orders required for the
conduct of its business, all of which are valid and in full force and
effect, except where the failure to posses or operate in compliance with
such items would not singly or in the aggregate result in a Material
Adverse Effect, and neither the Company nor any of its subsidiaries or PA
Contractors has received any notice of proceedings relating to the
revocation or modification of any such franchise, grant, authorization,
license, permit, easement, consent, certificate or order which, singly or
in the aggregate, if the subject of an unfavorable decision, would result
in a Materially Adverse Effect; and the Company is and each of such
subsidiaries and PA Contractors are duly qualified to do business and in
good standing as foreign corporations in all other jurisdictions where
their ownership or leasing of properties or the conduct of their
businesses requires such qualification, except where the failure to be so
qualified would not singly or in the aggregate have a Material Adverse
Effect.
(h) The Company has authorized, issued and outstanding capital stock
as set forth under the heading "Capitalization" in the Prospectus (except
for subsequent issuances, if any, pursuant to reservations or agreements
referred to in the Prospectus); the issued and outstanding shares of
Common Stock (including the outstanding shares of the Shares) of the
Company conform to the description thereof in the Prospectus and have
been duly authorized and validly issued and are fully paid and
nonassessable and are listed on the Nasdaq National Market; the
stockholders of the Company have no preemptive rights with respect to any
shares of capital stock of the Company and all outstanding shares of
capital stock of each corporate subsidiary have been duly authorized and
validly issued, and are fully paid and nonassessable and are owned
directly by the Company or by another subsidiary of the Company, and
except as disclosed in the Prospectus, free and clear of any liens,
encumbrances, equities or claims.
(i) The Shares to be issued and sold by the Company to the
Underwriters hereunder have been duly and validly authorized and, when
issued and delivered against payment therefor as provided herein, will be
duly and validly issued and fully paid and nonassessable and will conform
to the description thereof in the Prospectus.
(j) Except as disclosed in the Prospectus, there are no legal or
governmental proceedings pending to which the Company or any of its
subsidiaries or PA Contractors is a party or of which any property of the
Company or any subsidiary or PA Contractors is the subject, that are
required to be disclosed in the Registration Statement (other than as
described therein), or which, if determined adversely to the Company or
any subsidiary, would individually or in the aggregate result in a
Material Adverse Effect to the Company and its subsidiaries and PA
Contractors or which might materially and adversely affect the
consummation of this Agreement; and to the best of the Company's
knowledge no such proceedings are threatened or contemplated by
governmental authorities or threatened by others.
(k) Neither the Company nor any of its subsidiaries or PA
Contractors is, or with the giving of notice or passage of time or both
would be, in breach or violation of any of the terms or provisions of or
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in default under: (A) any statute, rule or regulation applicable to the
Company or any of its subsidiaries or PA Contractors; (B) any indenture,
contract, lease, mortgage, deed of trust, note or other agreement or
instrument to which the Company or such subsidiary is a party or by which
it may be bound; (C) its certificate of incorporation, by-laws or other
organizational documents; and (D) any order, decree or judgment of any
court or governmental agency or body having jurisdiction over the Company
or any of its subsidiaries or PA Contractors, in each case (other than
clause (C) of this Section 1(k)), where such breach, violation or default
would have a Material Adverse Effect. The performance of this Agreement
and the consummation of the transactions herein contemplated will not,
with the giving of notice or passage of time or both, result in a breach
or violation of any of the terms or provisions of or constitute a default
under: (W) any statute, rule or regulation, to the best of the Company's
knowledge after due inquiry, that is applicable to the Company or any of
its subsidiaries; (X) any indenture, contract, mortgage, lease, deed of
trust, note or other agreement or instrument to which the Company or any
of its subsidiaries is a party or by which it is bound; (Y) the Company's
or any such subsidiary's certificate of incorporation, by-laws or other
organizational documents; or (Z) any order, decree judgment of any court
or governmental agency or body having jurisdiction over the Company or
any of its subsidiaries or any of their respective properties.
(l) No labor dispute with the employees of the Company or any of its
subsidiaries exists or, to the best of the Company's knowledge after due
inquiry, is imminent.
(m) No consent, approval, authorization, order, registration or
qualification of or with any court or governmental agency or body is
required for the issuance and sale of the Shares by the Company or for
the consummation by the Company of the transactions contemplated by this
Agreement, including, without limitation, the use of the proceeds from
the sale of the Shares to be sold by the Company in the manner
contemplated in the Prospectus under the caption "Use of Proceeds,"
except such as may be required by the National Association of Securities
Dealers, Inc. (the "NASD") or under the Act or the securities or Blue Sky
laws of any jurisdiction in connection with the purchase and distribution
of the Shares by the Underwriters.
(n) This Agreement has been duly authorized, executed and delivered
by the Company.
(o) Except as disclosed in the Prospectus, the Company and its
subsidiaries have no trademarks, trademark registrations, service marks,
service xxxx registrations, trade names or copyrights that are necessary
for the conduct of their respective businesses as described in the
Prospectus.
(p) The Company and its subsidiaries and PA Contractors have such
certificates, permits, licenses, franchises, consents, approvals,
authorizations and clearances issued by the appropriate federal, state or
foreign regulatory authorities as are necessary to own, lease or operate
their respective properties and to conduct their respective businesses in
the manner described in the Prospectus ("Licenses") and all such Licenses
are valid and in full force and effect, except where the failure to
possess such Licenses would not singly or in the aggregate have a
Material Adverse Effect. The Company and each of its subsidiaries and PA
Contractors are in compliance in all material respects with their
respective obligations under such Licenses and no event has occurred that
allows, or after notice or lapse of time or both would allow, revocation,
suspension or termination of any such License or a violation of any such
laws or regulations, except where such revocation, suspension,
termination or violation would not singly or in the aggregate have a
Material Adverse Effect. Neither the Company nor any Subsidiary or PA
Contractor has received any notice of proceedings relating to the
revocation or modification of any such License which, singly or in the
aggregate, if the subject of an unfavorable decision, ruling or finding,
would result in a Material Adverse Effect, except as described in or
contemplated by the Prospectus. No such License contains a material
restriction on the Company or any of its subsidiaries that is not
adequately disclosed in the Registration Statement and the Prospectus.
(q) The Company is not an "investment company" or an entity
"controlled" by an "investment company" as such terms are defined in the
Investment Company Act of 1940, as amended.
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(r) The Company and its subsidiaries have good and marketable title
to all properties (real and personal) owned by the Company and its
subsidiaries, and except as disclosed in the Prospectus, free and clear
of any mortgage, pledge, lien, security interest, claim or encumbrance of
any kind that may materially interfere with the use of such properties or
the conduct of the business of the Company and its subsidiaries
considered as a whole; and all material properties held under lease or
sublease by the Company or its subsidiaries are held under valid,
subsisting and enforceable leases or subleases.
(s) The Company and its subsidiaries maintain accurate books and
records reflecting their respective assets and maintain internal
accounting controls which provide reasonable assurance that (A) material
transactions are executed with management's authorization, (B)
transactions are recorded as necessary to permit preparation of financial
statements and to maintain accountability for assets, (C) access to
assets is permitted only in accordance with management's authorization
and (D) the reported accountability of assets is compared with existing
assets at reasonable intervals.
(t) The Company has complied, and will continue to comply, with all
provisions of Section 517.075 of the Florida Statutes (Chapter 92-198,
Laws of Florida) and the rules thereunder.
(u) The Company and its subsidiaries and PA Contractors carry or are
entitled to the benefits of insurance in such amounts and covering such
risks as, to the best of the Company's knowledge after due inquiry, is
generally maintained by or on behalf of companies of established repute
engaged in the same of similar business, and all such insurance is in
full force and effect.
(v) The Company and its subsidiaries have filed all federal, state,
local and foreign tax returns required to be filed, such returns are
complete and accurate in all material respects, and all taxes shown by
such returns or otherwise assessed that are due or payable have been
paid, except such taxes as are being contested in good faith and as to
which adequate reserves have been provided. The charges, accruals and
reserves on the books of the Company and its subsidiaries in respect of
any tax liability for any year not finally determined are adequate to
meet any assessments or reassessments for additional taxes; and there has
been no tax deficiency asserted and, to the best knowledge of the
Company, no tax deficiency might be asserted or threatened against the
Company or any of its subsidiaries that could, singly or in the
aggregate, have a Material Adverse Effect.
(w) Each "employee benefit plan" within the meaning of the Employee
Retirement Income Security Act of 1974, as amended ("ERISA"), in which
employees of the Company or any of its subsidiaries are eligible to
participate is in compliance in all material respects with the
applicable provisions of ERISA and the Internal Revenue Code of 1986, as
amended. Neither the Company nor any of its subsidiaries have any
liability under Title IV of ERISA, nor does the Company or any of its
subsidiaries expect that any such liability will be incurred, that could
singly or in the aggregate, have a Material Adverse Effect.
(x) No transaction has occurred between or among the Company, its
subsidiaries, its PA Contractors and any of their respective officers,
directors or affiliates or, to the best of the Company's knowledge, any
affiliate of any such officer or director, that is required to be
described in the Registration Statement that is not so described.
(y) Except as disclosed in the Prospectus, there are no contracts,
agreements or understandings between the Company or its subsidiaries or
PA Contractors and any third party (whether acting in an individual,
fiduciary or other capacity) granting such third party the right to
require the Company to file a registration statement under the Act with
respect to any securities of the Company owned or to be owned by such
third party or to require the Company to include such securities in the
securities registered pursuant to the Registration Statement or in any
securities being registered pursuant to any other registration statement
filed by the Company under the Act.
(z) There are no statutes, regulations, contracts or other documents
that are required to be described in the Registration Statement or the
Prospectus or to be filed as an exhibit to the Registration Statement
that are not described or filed as required. The contracts so described
in the Registration
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Statement and the Prospectus are in full force and effect and neither
the Company or any of its subsidiaries nor, to the best knowledge of
the Company, any other party is in breach of or default under any such
contracts, except for such defaults or breaches that would not singly or
in the aggregate have a Material Adverse Effect.
(aa) The Company has not taken and will not take, directly or
indirectly, any action designed to or that could reasonably be expected
to cause or result in the stabilization or manipulation of the price of
the Common Stock and the Company has not distributed and will not
distribute any offering material in connection with the offering and sale
of the Shares other than any preliminary prospectus filed with the
Commission or the Prospectus or other materials, if any, permitted by the
Act or the Rules or Regulations.
(bb) The business conducted by the Company and its subsidiaries and
the contractual relationships between (A) the Company and any of its
subsidiaries and the health care payors with which it contracts and (B)
the Company and any of its subsidiaries and the health care providers
with which it contracts, to the best knowledge of the Company after due
inquiry, 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 are operating that are
applicable to such business and such relationships, including those laws
governing 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 would not
have a Material Adverse Effect and except as disclosed in the Prospectus.
2. REPRESENTATIONS AND WARRANTIES OF THE SELLING STOCKHOLDERS.
Each of the Selling Stockholders, severally and not jointly, represents
and warrants to and agrees with each of the Underwriters that:
(a) Such Selling Stockholder has full right, power and authority to
enter into this Agreement, the custody agreement and power of attorney
(the "Custody Agreement"). Such Selling Stockholder has duly executed
and delivered this Agreement. The Custody Agreement has been duly
executed and delivered on behalf of such Selling Stockholder and the
Custody Agreement constitutes the valid and binding agreement of such
Selling Stockholder enforceable against such Selling Stockholder in
accordance with its terms.
(b) Such Selling Stockholder has full right, power and authority to
sell, transfer, assign and deliver the Shares being sold by such Selling
Stockholder hereunder. Immediately prior to the delivery of the Shares
being sold by such Selling Stockholder, such Selling Stockholder was the
sole registered owner of such Shares and had good and valid title to such
Shares, free and clear of all adverse claims as defined in Section 8-302
of the Uniform Commercial Code and, upon registration of such Shares in
the names of the Underwriters or their nominees, assuming that such
purchasers purchased such Shares in good faith without notice of any
adverse claims as defined in Section 8-302 of the Uniform Commercial
Code, such purchasers will have acquired all the rights of such Selling
Stockholder in such Shares free of any adverse claim, any lien in favor
of the Company or restrictions on transfer imposed by the Company.
(c) The performance of this Agreement and the Custody Agreement and
the consummation of the transactions herein and therein contemplated will
not, with the giving of notice or the passage of time or both, result in
a breach or violation of any of the terms or provisions of or, to the
best knowledge of such Selling Stockholder after due inquiry, constitute
a default under any statute, rule or regulation applicable to such
Selling Stockholder, or any indenture, mortgage, deed of trust, note or
other material agreement or instrument to which such Selling Stockholder
is a party or by which it is bound, or any judgment, order or decree of
any court or governmental agency or body having jurisdiction over such
Selling Stockholder or any of its properties, or, if such Selling
Stockholder is a corporation, the certificate or articles of
incorporation or bylaws of such Selling Stockholder.
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(d) Without the prior written consent of Xxxxxx Xxxxxxx & Co.
Incorporated ("Xxxxxx Xxxxxxx") on behalf of the Underwriters, such
Selling Stockholder will not, during the period commencing on the date
hereof and ending 180 days after the date of the final Prospectus, (A)
offer, pledge, sell, contract to sell, sell any option or contract to
purchase, purchase any option or contract to sell, grant any option,
right or warrant to purchase, or otherwise transfer of dispose of,
directly or indirectly, any shares of Common Stock or any securities
convertible into or exercisable or directly or indirectly, any shares of
Common Stock or any securities convertible into or exercisable or
exchangeable for Common Stock (whether such shares or any such securities
are now owned by the undersigned or are hereafter acquired), or (B) enter
into any swap or other arrangement that transfers to another, in whole or
in part, any of the economic consequences of ownership of the Common
Stock, whether any such transaction described in clause (A) or (B) above
is to be settled by delivery of Common Stock or such other securities, in
cash or otherwise.
(e) Such Selling Stockholder has duly executed and delivered the
Custody Agreement (A) appointing _________________ and _______________,
and each of them, as attorney-in-fact (the "Attorneys-in-Fact") with
authority to execute and deliver this Agreement on behalf of such Selling
Stockholder, to authorize the delivery of the Shares to be sold by such
Selling Stockholder hereunder and otherwise to act on behalf of such
Selling Stockholder in connection with the transactions contemplated by
this Agreement, and (B) appointing the Company, as Custodian, to hold in
custody for delivery under this Agreement certificates for the Shares to
be sold by such Selling Stockholder hereunder.
(f) No consent, approval, authorization or order of any court or
governmental agency or body is required for the consummation by such
Selling Stockholder of the transactions contemplated by this Agreement,
except such as may be required by the NASD or under the Act or the
securities or Blue Sky laws of any jurisdiction in connection with the
purchase and distribution of the Shares by the Underwriters.
(g) Such Selling Stockholder has not (A) taken, directly or
indirectly, any action designed to cause or result in, or that has
constituted or might reasonably be expected to constitute, the
stabilization or manipulation of the price of any security of the Company
to facilitate the sale or resale of the Shares or (B) since the filing of
the Registration Statement (1) sold, bid for, purchase or paid anyone any
compensation for soliciting purchases of, the Shares or (2) paid or
agreed to pay to any person any compensation for soliciting another to
purchase any other securities of the Company.
(h) All information furnished or to be furnished to the Company by
or on behalf of such Selling Stockholder for use in connection with the
preparation of the Registration Statement and the Prospectus, insofar as
it relates to such Selling Stockholder, is or will be true and correct in
all respects and, with respect to the Registration Statement, does not
and will not contain an untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary to
make the statements therein not misleading, and, with respect to the
Prospectus, does not and will not contain any untrue statement of a
material fact or omit to state any material fact necessary in order to
make the statements therein, in the light of the circumstances under
which they were made, not misleading.
(i) Nothing has come to such Selling Stockholder's attention that
has caused such Selling Stockholder to believe that (A) at the time the
Registration Statement becomes effective and at the date hereof, it will
include any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the
statements therein not misleading and (B) the Prospectus, at the time it
becomes effective and as of the date hereof and at the Closing Date, the
Prospectus will include any untrue statement of material fact or omit to
state any material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made,
not misleading. The foregoing representations, warranties and agreements
in this subsection (ix) shall not apply to information contained in or
omitted from the Registration Statement or the Prospectus in reliance
upon, and in conformity with, written information furnished to the
Company by or on behalf of any Underwriter, directly or through the
Representatives, specifically for use in the preparation thereof.
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Each Selling Stockholder agrees that the Shares represented by the
certificates held in custody under the Custody Agreement are for the benefit of
and coupled with and subject to the interests of the Underwriters, the other
Selling Stockholders and the Company hereunder, and that the arrangement for
such custody and the appointment of the Attorneys-in-Fact are irrevocable; that
the obligations of such Selling Stockholders hereunder shall not be terminated
by operation of law, whether by the death or incapacity of any such Selling
Stockholders, or any other event, that if any of such Selling Stockholders
should die or become incapacitated or any other event occur, before the
delivery of the Shares hereunder, certificates for the Shares to be sold by
such Selling Stockholders shall be delivered on behalf of such Selling
Stockholders in accordance with the terms and conditions of this Agreement and
the Custody Agreement, and action taken by the Attorneys-in-Fact or any of them
under the Power of Attorney shall be as valid as if such death, incapacity or
other event had not occurred, whether or not the Custodian, the
Attorneys-in-Fact or any of them shall have notice of such death, incapacity or
other event.
Each Selling Stockholder further agrees that neither such Selling
Stockholder nor any of its officers, directors or affiliates will: (a) take,
directly or indirectly, prior to the termination of the underwriting syndicate
contemplated by this Agreement, any action designed to cause or to result in,
or that might reasonably be expected to constitute, the stabilization or
manipulation of the price of any securities of the Company to facilitate the
sale or resale of any of the Shares; (b) sell, bid for, purchase or pay anyone
any compensation for soliciting purchases of, the Stock; or (c) pay to or agree
to pay any person any compensation for soliciting another to purchase any other
securities of the Company.
3. AGREEMENTS TO SELL AND PURCHASE. Each Seller, severally and not
jointly, hereby agrees to sell to the several Underwriters, and each
Underwriter, upon the basis of the representations and warranties herein
contained, but subject to the conditions hereinafter stated, agrees, severally
and not jointly, to purchase from such Seller at $__________ a share (the
"Purchase Price") the number of Firm Shares (subject to such adjustments to
eliminate fractional shares as you may determine) that bears the same
proportion to the number of Firm Shares to be sold by such Seller as the number
of Firm Shares set forth in Schedule II hereto opposite the name of such
Underwriter bears to the total number of Firm Shares.
On the basis of the representations and warranties contained in this
Agreement, and subject to its terms and conditions, the Sellers agree to sell
to the Underwriters the Additional Shares as set forth on Schedule I hereto,
and the Underwriters shall have a one-time right to purchase, severally and not
jointly, up to 930,000 Additional Shares at the Purchase Price. If you, on
behalf of the Underwriters, elect to exercise such option, you shall so notify
the Company in writing not later than 30 days after the date of this Agreement,
which notice shall specify the number of Additional Shares to be purchased by
the Underwriters and the date on which such shares are to be purchased. Such
date may be the same as the Closing Date (as defined below) but not earlier
than the Closing Date nor later than ten business days after the date of such
notice. Additional Shares may be purchased as provided in Section 5 hereof
solely for the purpose of covering over-allotments made in connection with the
offering of the Firm Shares. If any Additional Shares are to be purchased,
each Underwriter agrees, severally and not jointly, to purchase the number of
Additional Shares (subject to such adjustments to eliminate fractional shares
as you may determine) that bears the same proportion to the total number of
Additional Shares to be purchased as the number of Firm Shares set forth in
Schedule II hereto opposite the name of such Underwriter bears to the total
number of Firm Shares.
Each Seller hereby agrees that, without the prior written consent of
Xxxxxx Xxxxxxx on behalf of the Underwriters, it will not, during the period
ending 180 days after the date of the Prospectus, (i) offer, pledge, sell,
contract to sell, sell any option or contract to purchase, purchase any option
or contract to sell, grant any option, right or warrant to purchase or
otherwise transfer or dispose of, directly or indirectly, any shares of Common
Stock or any securities convertible into or exercisable or exchangeable for
Common Stock (provided that such shares or securities are currently owned by
such person or are thereafter acquired from the Company) or (ii) enter into any
swap or other agreement that transfers, in whole or in part, any of the
economic consequences of ownership of the Common Stock, whether any such
transaction described in clause (i) or (ii) above is to be settled by delivery
of Common Stock or such other securities, in cash or otherwise. The foregoing
sentence shall not apply to (A) the Shares to be sold hereunder, (B) the
issuance by the Company of shares of Common Stock pursuant to the acquisition
of anatomic pathology practices that have been approved by the Board of
Directors of the Company or by an authorized
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committee thereof or (C) the issuance by the Company of shares of Common Stock
upon the exercise of an option or warrant or the conversion of a security
outstanding on the date hereof or disclosed in the Prospectus of which the
Underwriters have been advised in writing. In addition, each Selling
Stockholder, agrees that, without the prior written consent of Xxxxxx Xxxxxxx on
behalf of the Underwriters, it will not, during the period ending 180 days after
the date of the Prospectus, make any demand for, or exercise any right with
respect to, the registration of any shares of Common Stock or any security
convertible into or exercisable or exchangeable for Common Stock.
As part of the offering contemplated by this Agreement, Xxxxxx Xxxxxxx has
agreed to reserve out of the Shares set forth opposite its name on Schedule II
to this Agreement, up to 310,000 shares, for sale to the Company's employees,
officers, directors and other parties associated with the Company (collectively
"Participants"), as set forth in the Prospectus in the heading "Underwriters"
(the "Directed Share Program"). The Shares to be sold by Xxxxxx Xxxxxxx
pursuant to the Directed Share Program (the "Directed Shares") will be sold by
Xxxxxx Xxxxxxx pursuant to this Agreement at the public offering price. Any
Directed Shares not orally confirmed for purchase by any Participants by the
end of the first business day after the date on which this Agreement is
executed will be offered to the public by Xxxxxx Xxxxxxx as set forth in the
Prospectus.
4. TERMS OF PUBLIC OFFERING. The Sellers are advised by you that
the Underwriters propose to make a public offering of their respective
portions of the Shares as soon after the Registration Statement and this
Agreement have become effective as in your judgment is advisable. The Sellers
are further advised by you that the Shares are to be offered to the public
initially at $ ________ a share (the "Public Offering Price") and to certain
dealers selected by you at a price that represents a concession not in excess
of $ ________ a share under the Public Offering Price, and that any Underwriter
may allow, and such dealers may reallow, a concession, not in excess of
$________a share, to any Underwriter or to certain other dealers.
5. PAYMENT AND DELIVERY. Payment for the Firm Shares to be sold
by each Seller shall be made to such Seller in federal or other funds
immediately available in New York City against delivery of such Firm Shares for
the respective accounts of the several Underwriters at 10:00 A.M., New York
City time, on March __, 1997, or at such other time on the same or such other
date, not later than March __ , 1997, as shall be designated in writing by you.
The time and date of such payment are hereinafter referred to as the "Closing
Date."
Payment for any Additional Shares shall be made to the Company in federal
or other funds immediately available in New York City against delivery of such
Additional Shares for the respective accounts of the several Underwriters at
10:00 A.M., New York City time, on the date specified in the notice described
in Section 3 or at such other time on the same or on such other date, in any
event not later than April __, 1997, as shall be designated in writing by you.
The time and date of such payment are hereinafter referred to as the "Option
Closing Date."
Certificates for the Firm Shares and Additional Shares shall be in
definitive form and registered in such names and in. such denominations as you
shall request in writing not later than one full business day prior to the
Closing Date or the Option Closing Date, as the case may be. The certificates
evidencing the Firm Shares and Additional Shares shall be delivered to you on
the Closing Date or the Option Closing Date, as the case may be, for the
respective accounts of the several Underwriters, with any transfer taxes
payable in connection with the transfer of the Shares to the Underwriters duly
paid, against payment of the Purchase Price therefor.
6. CONDITIONS TO THE UNDERWRITERS' OBLIGATIONS. The obligations
of the Sellers to sell the Shares to the Underwriters and the several
obligations of the Underwriters to purchase and pay for the Shares on the
Closing Date are subject to the condition that the Registration Statement shall
have become effective not later than ________ (New York time) on the date
hereof.
The several obligations of the Underwriters are subject to the
following further conditions:
(a) Subsequent to the execution and delivery of this Agreement and
prior to the Closing Date:
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(i) there shall not have occurred any downgrading, nor
shall any notice have been given of any intended or
potential downgrading or of any review for a possible change
that does not indicate the direction of the possible change, in
the rating accorded any of the Company's securities by any
"nationally recognized statistical rating organization," as
such term is defined for purposes of Rule 436(g)(2) under the
Act; and
(ii) there shall not have occurred any change,
or any development involving a prospective change, in
the condition, financial or otherwise, or in the earnings,
business or operations of the Company and its subsidiaries,
taken as a whole, from that set forth in the Prospectus
(exclusive of any amendments or supplements thereto subsequent
to the date of this Agreement) that, in your judgment, is
material and adverse and that makes it, in your judgment,
impracticable to market the Shares on the terms and in the
manner contemplated in the Prospectus.
(b) The Underwriters shall have received on the Closing
Date a certificate, dated the Closing Date and signed by an executive
officer of the Company, to the effect set forth in clause (a)(i) above
and to the effect that the representations and warranties of the Company
contained in this Agreement are true and correct as of the Closing Date
and that the Company has complied with all of the agreements and
satisfied all of the conditions on its part to be performed or satisfied
hereunder on or before the Closing Date.
The officer signing and delivering such certificate may rely up
on the best of his or her knowledge as to proceedings threatened.
(c) The Underwriters shall have received on the Closing
Date an opinion of Greenberg, Traurig, Hoffman, Lipoff, Xxxxx &
Quentel, P.A., outside counsel for the Company, dated the Closing Date,
to the effect that:
(i) The Company has been duly incorporated, is
validly existing as a corporation in good standing
under the laws of Delaware and has corporate power and
authority to own or lease its properties and conduct its
business as described in the Prospectus. The Company is duly
qualified as a foreign corporation in good standing in all
other jurisdictions where its ownership or leasing of
properties or the conduct of its business requires such
qualification, except where the failure to so qualify would
not, singly or in the aggregate, have a Material Adverse
Effect.
(ii) The Company has authorized and, to the best of
such counsel's knowledge, outstanding capital stock as
set forth under the heading "Capitalization" in the
Prospectus; all outstanding shares of Common Stock (including
the Shares) conform to the description thereof in the
Prospectus and have been duly authorized and validly issued and
are fully paid and nonassessable, and the stockholders of the
Company have no statutory preemptive rights, or to the best of
such counsel's knowledge, similar rights with respect to any
shares of capital stock of the Company.
(iii) To the best of such counsel's knowledge, there
are no legal or governmental proceedings pending other
than those set forth under "Business - Legal Proceedings" in
the Prospectus to which the Company or any of its subsidiaries
or PA Contractors is a party or of which any property of the
Company or any subsidiary or PA Contractor is the subject,
which individually or in the aggregate, if adversely
determined, would have a Material Adverse Effect; and to the
best of such counsel's knowledge no such proceedings are
threatened by governmental authorities or others.
(iv) This Agreement has been duly authorized,
executed and delivered by the Company; and the
performance of this Agreement and the consummation of the
transactions herein contemplated will not result in a breach or
violation of any of the terms or provisions of or constitute a
default under any federal or Florida statute, contract,
indenture, mortgage, deed of trust, loan agreement, note, lease
or other agreement or instrument known to such counsel to
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which the Company is a party or by which it is bound,
the Company's Certificate of Incorporation or Bylaws, or any
order, rule or regulation known to such counsel of any court or
governmental agency or body having jurisdiction over the
Company or any of its properties (except any state securities
of "Blue Sky" rules or regulations, as to which such counsel
shall render no opinion).
(v) No consent, approval, authorization or order of
any court or governmental agency or body is required
for consummation by the Company of the transactions
contemplated by this Agreement, except as such as may be
required under the Act or as may be required under the
securities or Blue Sky laws of any jurisdiction or by the NASD
in connection with the purchase and distribution of the Shares
by the Underwriters.
(vi) The Registration Statement has become effective
under the Act and, to the best of the knowledge of such
counsel, no stop order suspending the effectiveness thereof has
been issued and no proceedings for that purpose have been
instituted or are pending or contemplated under the Act.
(vii) The Common Stock has been approved for listing
on the Nasdaq National Market. The Registration
Statement on Form 8-A relating to the Common Stock has become
effective under the Securities Exchange Act of 1934, as
amended.
(viii) The Registration Statement and the Prospectus
(other than the financial statements and financial
statement schedule(s) included therein, as to which no opinions
need be rendered), and each amendment or supplement thereto, as
of their respective effective or issue dates and as of the
Closing Date complied as to form in all material respects with
the requirements of the Act and the Rules and Regulations.
(ix) The descriptions in the Registration Statement
and Prospectus of contracts and other documents are
accurate in all material respects and such descriptions fairly
present in all material respects the information required to be
shown; and such counsel does not know of any legal or
governmental proceedings or of any contracts or documents of a
character required to be described in the Registration
Statement or Prospectus or to be filed as exhibits to the
Registration Statement or Prospectus which are not described
and filed as required.
(x) The Company is not, and will not be as a
result of the consummation of the transactions
contemplated by this Agreement, an "investment company" or a
company "controlled" by an "investment company" within the
meaning of the Investment Company Act of 1940, as amended.
(xi) Nothing has come to such counsel's attention
that would lead such counsel to believe that the
Registration Statement (other than the financial statements and
financial statement schedule(s), as to which no opinions need
be rendered) and the Prospectus included therein at the time
the Registration Statement became effective or at the date
hereof, contained any untrue statement of a material fact or
omitted to state a material fact required to be stated therein
or necessary to make the statements therein not misleading or
that the Prospectus included any untrue statement of a material
fact or omitted to state any material fact necessary to make
the statements therein, in the light of the circumstances under
which they were made, not misleading.
(xii) Each of the subsidiaries of the Company (the
"Subsidiaries") and the PA Contractors, has each been
duly incorporated or organized, is validly existing as a
corporation in good standing under the laws of its respective
jurisdiction of incorporation and has corporate power and
authority to own its respective properties and conduct its
respective business as described in the Prospectus, and each of
such Subsidiaries and PA Contractors is duly qualified as a
foreign corporation in good standing and in all other
jurisdictions where its ownership or leasing of
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properties or the conduct of its business requires such
qualification, except where the failure to be so qualified
would not singly or in the aggregate have a Material Adverse
Effect.
(xiii) All outstanding shares of capital stock of the
Subsidiaries have been duly authorized and validly
issued, are fully paid and nonassessable, and are owned by the
Company, except as disclosed in the Prospectus, free and clear
of any liens, encumbrances, equities and claims.
(xiv) As of the Closing Date, the business conducted
by the Company and its subsidiaries and the material
contractual relationships between (a) the Company and any of
its subsidiaries and the health care payors with which it
contracts and (b) the Company and any of its subsidiaries and
the health care providers with which it contracts do not
violate any federal or state health care laws and regulations
in such jurisdictions in which the Company and any of its
subsidiaries are doing business that are applicable to such
business and such relationships, including those laws governing
insurance risk, risk allocation, corporate practice of
medicine, professional corporations, fee splitting, client
confidentiality, fraud and abuse and self-referral.
(xv) To such counsel's knowledge, the Company and
its subsidiaries possess all certificates, authorizations,
licenses and permits issued by the appropriate federal, state
or foreign regulatory authorities necessary to conduct their
respective businesses, except for those certificates,
authorizations, licenses and permits the failure to so possess
would not singly or in the aggregate have a Material Adverse
Effect and, to such counsel's knowledge, neither the Company
nor any such subsidiary has received any notice of proceedings
relating to the revocation or modification of any such
certificate, authorization, license or permit which, singly or
in the aggregate, if the subject of an unfavorable decision,
ruling or finding, would result in a Material Adverse Effect,
except as described in or contemplated by the Prospectus.
(d) The Underwriters shall have received on the Closing Date
opinions of Greenberg, Traurig, Hoffman, Lipoff, Xxxxx & Xxxxxxx, P.A.
and Xxxxxxxx, Xxxxxxx & Xxxxxxx, each counsel for certain Selling
Stockholders, dated the Closing Date, to the effect that:
(i) Each Selling Stockholder has full right, power
and authority to enter into this Agreement and the
Custody Agreement. Each Selling Stockholder has duly
authorized, executed and delivered this Agreement. The Custody
Agreement has been duly executed and delivered on behalf of
each Selling Stockholder and constitutes the valid and binding
agreement of the such Selling Stockholder enforceable against
the such Selling Stockholder in accordance with its terms
subject, as to enforcement, to applicable bankruptcy,
insolvency, reorganization and moratorium laws and other laws
affecting the enforcement of creditors' rights generally and to
equitable principles.
(ii) Each Selling Stockholder has full right, power
and authority to sell, transfer, assign and deliver the
Shares being sold by such Selling Stockholder hereunder.
Immediately prior to the delivery of the Shares being sold by
such Selling Stockholder, such Selling Stockholder was the sole
registered owner of such Shares and, upon registration of the
Share in the names of the Underwriters or their nominees,
assuming that such purchasers purchased such Shares in good
faith without notice of any adverse claims as defined in
Section 8-302 of the Uniform Commercial Code, such purchasers
will have acquired all the rights of such Selling Stockholder
in such Shares free of any adverse claim, any lien in favor of
the Company or restrictions on transfer imposed by the Company.
(iii) The performance of this Agreement and the
Custody Agreement and the consummation of the
transactions herein and therein contemplated will not, with the
giving of notice of passage of time or both, result in a breach
or violation of any of the terms or provisions of or constitute
a default under any statute, rule or regulation applicable to
any Selling Stockholder, or, to the best of such counsel's
knowledge, any indenture, mortgage, deed of trust, note
agreement or other agreement or instrument to which any Selling
Stockholder is a
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party or by which it is bound, or any judgment, order
or decree known to such counsel after due inquiry of any court
or governmental agency or body having jurisdiction over any
Selling Stockholder or any of their properties or, if any
Selling Stockholder is a corporation, the certificate or
articles of incorporation and bylaws or any Selling
Stockholder.
(iv) No consent, approval, authorization or order of
any court or governmental agency or body is required
for the consummation by any of the Selling Stockholders of the
transactions contemplated by this Agreement, except such as may
be required under the Act or as may be required under the
securities or Blue Sky laws of any jurisdiction in connection
with the purchase and distribution of the Shares by the
Underwriters.
(v) Any transfer taxes which are required to be
paid in connection with the sale and delivery of the
Shares to the Underwriters hereunder have been paid and all
laws imposing such taxes have been fully complied with.
(e) The Underwriters shall have received on the Closing
Date an opinion of Xxxxxx & Xxxxxxx counsel for the Underwriters, their
opinion or opinions dated the Closing Date with respect to the validity
of the Shares, the Registration Statement, the Prospectus and such other
related matters as the Representatives may require. In giving such
opinion, such counsel may rely, as to all matters governed by the laws of
jurisdictions other than the law of the State of New York and the federal
law of the United States, upon opinions of counsel satisfactory to the
Representatives. The Company and the Selling Stockholders shall have
furnished to such counsel such documents as they may request for the
purpose of enabling them to pass upon such matters.
The opinions of Greenberg, Traurig, Hoffman, Lipoff, Xxxxx &
Quentel, P.A. and Xxxxxxxx, Xxxxxxx & Xxxxxxx described in paragraphs (c)
and (d) above shall be rendered to the Underwriters at the request of the
Company or one or more of the Selling Stockholders, as the case may be,
and shall so state therein.
(f) The Underwriters shall have received, on each of the date
hereof and the Closing Date, a letter dated the date hereof or the
Closing Date, as the case may be, in form and substance satisfactory to
the Underwriters, from Deloitte & Touche LLP, independent public
accountants, containing statements and information of the type ordinarily
included in accountants' "comfort letters" to underwriters with respect
to the financial statements and certain financial information contained
in the Registration Statement and the Prospectus; provided that the
letter delivered on the Closing Date shall use a "cut-off date" not
earlier than the date hereof.
(g) The "lock-up" agreements, each substantially in the form of
Exhibit A hereto, between you and certain stockholders, officers and
directors of the Company relating to sales and certain other dispositions
of shares of Common Stock or certain other securities, delivered to you
on or before the date hereof, shall be in full force and effect on the
Closing Date.
The several obligations of the Underwriters to purchase
Additional Shares hereunder are subject to the delivery to you on the
Option Closing Date of such documents as you may reasonably request with
respect to the good standing of the Company, the due authorization and
issuance of the Additional Shares and other matters related to the
issuance of the Additional Shares.
7. COVENANTS OF THE COMPANY. In further consideration of
the agreements of the Underwriters herein contained, the Company
Covenants with each Underwriter as follows:
(a) To furnish to you, without charge, six (6) signed copies
of the Registration Statement (including exhibits thereto) and for
delivery to each other Underwriter a conformed copy of the Registration
Statement (without exhibits thereto) and to furnish to you in New York
City, without charge, prior to 10:00 A.M. local time on the business day
next succeeding the date of this Agreement and during the period
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mentioned in paragraph (c) below, as many copies of the Distributed
Prospectus and any supplements and amendments thereto or to the
Registration Statement as you may reasonably request.
(b) Before amending or supplementing the Registration
Statement or the Prospectus, to furnish to you a copy of each
such proposed amendment or supplement and not to file any such proposed
amendment or supplement to which you reasonably object, and to file with
the Commission within the applicable period specified in Rule 424(b) under
the Act any prospectus required to be filed pursuant to such Rule.
(c) If, during such period after the first date of the
public offering of the Shares as in the opinion of counsel for the
Underwriters the Prospectus is required by law to be delivered in
connection with sales by an Underwriter or dealer, any event shall occur
or condition exist as a result of which it is necessary to amend or
supplement the Prospectus in order to make the statements therein, in the
light of the circumstances when the Prospectus is delivered to a
purchaser, not misleading, or if, in the opinion of counsel for the
Underwriters, it is necessary to amend or supplement the Prospectus to
comply with applicable law, forthwith to prepare, file with the Commission
and furnish, at its own expense, to the Underwriters and to the dealers
(whose names and addresses you will furnish to the Company) to which
Shares may have been sold by you on behalf of the Underwriters and to any
other dealers upon request, either amendments or supplements to the
Prospectus so that the statements in the Prospectus as so amended or
supplemented will not, in the light of the circumstances when the
Prospectus is delivered to a purchaser, be misleading or so that the
Prospectus, as amended or supplemented, will comply with law.
(d) To endeavor to qualify the Shares for offer and sale
under the securities or Blue Sky laws of such jurisdictions as you shall
reasonably request.
(e) To make generally available to the Company's security
holders and to you as soon as practicable an earning statement covering
the twelve-month period ending December 31, 1997 that satisfies the
provisions of Section 11(a) of the Act and the rules and regulations of
the Commission thereunder.
8. EXPENSES. Whether or not the transactions contemplated
in this Agreement are consummated or this Agreement is terminated, the
Company agrees to pay or cause to be paid all expenses incident to the
performance of its obligations under this Agreement, including: (i) the fees,
disbursements and expenses of the Company's counsel and the Company's
accountants in connection with the registration and delivery of the Shares under
the Act and all other fees or expenses in connection with the preparation and
filing of the Registration Statement, any preliminary prospectus, the Prospectus
and amendments and supplements to any of the foregoing, including all printing
costs associated therewith, and the mailing and delivering of copies thereof to
the Underwriters and dealers, in the quantities hereinabove specified, (ii) all
costs and expenses related to the transfer and delivery of the Shares to the
Underwriters, including any transfer or other taxes payable thereon, (iii) the
cost of printing or producing any Blue Sky or Legal Investment memorandum in
connection with the offer and sale of the Shares under state securities laws and
all expenses in connection with the qualification of the Shares for offer and
sale under state securities laws as provided in Section 7(d) hereof, including
filing fees and the reasonable fees and disbursements of counsel for the
Underwriters in connection with such qualification and in connection with the
Blue Sky or Legal Investment memorandum, (iv) all filing fees and disbursements
of counsel to the Underwriters incurred in connection with the review and
qualification of the offering of the Shares by the National Association of
Securities Dealers, Inc., (v) all fees and expenses in connection with the
preparation and filing of the registration statement on Form 8-A relating to the
Common Stock and all costs and expenses incident to listing the Shares on the
Nasdaq National Market (and other national securities exchanges and foreign
stock exchanges), (vi) the cost of printing certificates representing the
Shares, (vii) the costs and charges of any transfer agent, registrar or
depositary, (viii) the costs and expenses of the Company relating to investor
presentations on any "road show" undertaken in connection with the marketing of
the offering of the Shares, including, without limitation, expenses associated
with the production of road show slides and graphics, fees and expenses of any
consultants engaged in connection with the road show presentations with the
prior approval of the Company, travel and lodging expenses of the
representatives and officers of the Company and any such consultants, and the
cost of any aircraft chartered in connection with the road show, and (ix) all
other costs and expenses incident to
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the performance of the obligations of the Company hereunder for which
provision is not otherwise made in this Section. It is understood, however,
that except as provided in this Section, Section 9 entitled "Indemnity and
Contribution", and the last paragraph of Section 11 below, the Underwriters will
pay all of their costs and expenses, including fees and disbursements of their
counsel, stock transfer taxes payable on resale of any of the Shares by them and
any advertising' expenses connected with any offers they may make.
The provisions of this Section shall not supersede or
otherwise affect any agreement that the Sellers may otherwise have for
the allocation of such expenses among themselves.
9. INDEMNITY AND CONTRIBUTION.
(a) The Company agrees to indemnify and hold harmless each
Underwriter and each person, if any, who controls any Underwriter within
the meaning of either Section 15 of the Act or Section 20 of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), from
and against any and all losses, claims, damages and liabilities
(including, without limitation, any legal or other expenses reasonably
incurred in connection with defending or investigating any such action or
claim) caused by any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement or any amendment
thereof, any preliminary prospectus or the Prospectus (as amended or
supplemented if the Company shall have furnished any amendments or
supplements thereto), or caused by any omission or alleged omission to
state therein a material fact required to be stated therein or necessary
to make the statements therein not misleading, except insofar as such
losses, claims, damages or liabilities are caused by any such untrue
statement or omission or alleged untrue statement or omission based upon
information relating to any Underwriter furnished to the Company in
writing by such Underwriter through you expressly for use therein.
(b) Each Selling Stockholder agrees, severally and not
jointly, to indemnify and hold harmless the Company, its directors, its
officers who sign the Registration Statement and each person, if any, who
controls the Company within the meaning of either Section 15 of the Act or
Section 20 of the Exchange Act, from and against any and all losses,
claims, damages and liabilities (including, without limitation, any legal
or other expenses reasonably incurred in connection with defending or
investigating any such action or claim) caused by any untrue statement or
alleged untrue statement of a material fact contained in the Registration
Statement or any amendment thereof, any preliminary prospectus or the
Prospectus (as amended or supplemented if the Company shall have furnished
any amendments or supplements thereto), or caused by any omission or
alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, but
only with reference to information relating to such Selling Stockholder
furnished in writing by or on behalf of such Selling Stockholder expressly
for use in the Registration Statement, any preliminary prospectus, the
Prospectus or any amendments or supplements thereto; provided that in no
event shall such liability exceed the net proceeds received by such
Selling Stockholder from the sale of the shares hereunder.
(c) Each Underwriter agrees, severally and not jointly, to
indemnify and hold harmless the Company, the Selling Stockholders, the
directors of the Company, the officers of the Company who sign the
Registration Statement and each person, if any, who controls the Company
or any Selling Stockholder within the meaning of either Section 15 of the
Act or Section 20 of the Exchange Act from and against any and all losses,
claims, damages and liabilities (including, without limitation, any legal
or other expenses reasonably incurred in connection with defending or
investigating any such action or claim) caused by any untrue statement or
alleged untrue statement of a material fact contained in the Registration
Statement or any amendment thereof, any preliminary prospectus or the
Prospectus (as amended or supplemented if the Company shall have furnished
any amendments or supplements thereto), or caused by any omission or
alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, but
only with reference to information relating to such Underwriter furnished
to the Company in writing by such Underwriter through you expressly for
use in the Registration Statement, any preliminary prospectus, the
Prospectus or any amendments or supplements thereto.
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(d) In case any proceeding (including any governmental
investigation) shall be instituted involving any person in respect of
which indemnity may be sought pursuant to paragraph (a), (b) or (c) of
this Section 9, such person, (the "indemnified party") shall promptly
notify the person against whom such indemnity may be sought (the
"indemnifying party") in writing and the indemnifying party, upon request
of the indemnified party, shall retain counsel reasonably satisfactory to
the indemnified party to represent the indemnified party and any others
the indemnifying party may designate in such proceeding and shall pay
the fees and disbursements of such counsel related to such proceeding.
In any such proceeding, any indemnified party shall have the right to
retain its own counsel, but the fees and expenses of such counsel shall
be at the expense of such indemnified party unless (i) the indemnifying
party and the indemnified party shall have mutually agreed to the
retention of such counsel or (ii) the named parties to any such
proceeding (including any impleaded parties) include both the
indemnifying party and the indemnified party and representation of both
parties by the same counsel would be inappropriate due to actual or
potential differing interests between them. It is understood that the
indemnifying party shall not, in respect of the legal expenses of any
indemnified party in connection with any proceeding or related
proceedings in the same jurisdiction, be liable for the fees and expenses
of more than one separate firm (in addition to any local counsel) for (i)
all Underwriters and all persons, if any, who control any Underwriter
within the meaning of either Section 15 of the Act or Section 20 of the
Exchange Act, (ii) the fees and expenses of more than one separate firm
(in addition to any local counsel) for the Company, its directors, its
officers who sign the Registration Statement and each person, if any, who
controls the Company within the meaning of either such Section and (iii)
the fees and expenses of more than one separate firm (in addition to any
local counsel) for all Selling Stockholders and all persons, if any, who
control any Selling Stockholder within the meaning of either such
Section, and that all such fees and expenses shall be reimbursed as they
are incurred. In the case of any such separate firm for the Underwriters
and such control persons of the Underwriters, such firm shall be
designated in writing by Xxxxxx Xxxxxxx. In the case of any such
separate firm for the Company, and such directors, officers and control
persons of the Company, such firm shall be designated in writing by the
Company. In the case of any such separate firm for the Selling
Stockholders and such controlling persons of the Selling Stockholders,
such firm shall be designated in writing by the persons named as
attorneys-in-fact for the Selling Stockholders under the Powers of
Attorney. The indemnifying party shall not be liable for any settlement
of any proceeding effected without its written consent (which consent
shall not be unreasonably withheld), but if settled with such consent or
if there be a final judgment for the plaintiff, the indemnifying party
agrees to indemnify the indemnified party from and against any loss or
liability by reason of such settlement or judgment. Notwithstanding the
foregoing sentence, if at any time an indemnified party shall have
requested an indemnifying party to reimburse the indemnified party for
fees and expenses of counsel as contemplated by the second and third
sentences of this paragraph, the indemnifying party agrees that it shall
be liable for any settlement of any proceeding effected without its
written consent if (i) such settlement is entered into more than 30 days
after receipt by such indemnifying party of the aforesaid request and
(ii) such indemnifying party shall not have reimbursed the indemnified
party in accordance with such request prior to the date of such
settlement. No indemnifying party shall, without the prior written
consent of the indemnified party, effect any settlement of any pending or
threatened proceeding in respect of which any indemnified party is or
could have been a party and indemnity could have been sought hereunder by
such indemnified party, unless such settlement includes an unconditional
release of such indemnified party from all liability on claims that are,
the subject matter of such proceeding.
(e) To the extent the indemnification provided for in
paragraph (a), (b) or (c) of this Section 9 is unavailable to an
indemnified party or insufficient in respect of any losses, claims,
damages or liabilities referred to therein, then each indemnifying party
under such paragraph, in lieu of indemnifying such indemnified party
thereunder, shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or
liabilities (i) in such proportion as is appropriate to reflect the
relative benefits received by the indemnifying party or parties on the one
hand and the indemnified party or parties on the other hand from the
offering of the Shares or (ii) if the allocation provided by clause (i)
above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in
clause (i) above but also the relative fault of the indemnifying party or
parties on the one hand and of the indemnified party or parties on the
other hand in connection with the statements or omissions that resulted in
such losses, claims, damages or liabilities, as well as any other relevant
equitable
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considerations. The relative benefits received by the Sellers on the one
hand and the Underwriters on the other hand in connection with the
offering of the Shares shall be deemed to be in the same respective
proportions as the net proceeds from the offering of the Shares (before
deducting expenses) received by each Seller and the total underwriting
discounts and commissions received by the Underwriters, in each case as
set forth in the table on the cover of the Prospectus, bear to the
aggregate Public Offering Price of the Shares. The relative fault of the
Sellers on the one hand and the Underwriters on the other hand shall be
determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the
Sellers or by the Underwriters and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent
such statement or omission. The Underwriters' respective obligations to
contribute pursuant to this Section 9 are several in proportion to the
respective number of Shares they have purchased hereunder, and not joint.
(f) The Sellers and the Underwriters agree that it would
not be just or equitable if contribution pursuant to this Section 9 were
determined by pro rata allocation (even if the Underwriters were treated
as one entity for such purpose) or by any other method of allocation that
does not take account of the equitable considerations referred to in
paragraph (e) of this Section 9. The amount paid or payable by an
indemnified party as a result of the losses, claims, damages and
liabilities referred to in the immediately preceding paragraph shall be
deemed to include, subject to the limitations set forth above, any legal
or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 9, no Underwriter shall be
required to contribute any amount in excess of the amount by which the
total price at which the Shares underwritten by it and distributed to the
public were offered to the public exceeds the amount of any damages that
such Underwriter has otherwise been required to pay by reason of such
untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation. The
remedies provided for in this Section 9 are not exclusive and shall not
limit any rights or remedies which may otherwise be available to any
indemnified party at law or in equity.
(g) The indemnity and contribution provisions contained in
this Section 9 and the representations, warranties and other statements
of the Company and the Selling Stockholders contained in this Agreement
shall remain operative and in full force and effect regardless of (i) any
termination of this Agreement, (ii) any investigation made by or on
behalf of any Underwriter or any person controlling any Underwriter, any
Selling Stockholder or any person controlling any Selling Stockholder, or
the Company, its officers or directors or any person controlling the
Company and (iii) acceptance of and payment for any of the Shares.
10. TERMINATION. This Agreement shall be subject to
termination by notice given by you to the Company, if (a) after
the execution and delivery of this Agreement and prior to the Closing Date (i)
trading generally shall have been suspended or materially limited on or by, as
the case may be, any of the New York Stock Exchange, the American Stock
Exchange, the National Association of Securities Dealers, Inc., the Chicago
Board of Options Exchange, the Chicago Mercantile Exchange or the Chicago Board
of Trade, (ii) trading of any securities of the Company shall have been
suspended on any exchange or in any over-the-counter market, (iii) a general
moratorium on commercial banking activities in New York shall have been declared
by either Federal or New York State authorities or (iv) there shall have
occurred any outbreak or escalation of hostilities or any change in financial
markets or any calamity or crisis that, in your judgment, is material and
adverse and (b) in the case of any of the events specified in clauses (a)(i)
through (iv), such event, singly or together with any other such event, makes
it, in your judgment, impracticable to market the Shares on the terms and in the
manner contemplated in the Prospectus.
11. EFFECTIVENESS; DEFAULTING UNDERWRITERS. This
Agreement shall become effective upon the execution and delivery hereof
by the parties hereto.
If, on the Closing Date or the Option Closing Date, as the
case may be, any one or more of the Underwriters shall fail or refuse to
purchase Shares that it has or they have agreed to purchase hereunder on such
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date, and the aggregate number of Shares which such defaulting
Underwriter or Underwriters agreed but failed or refused to purchase is not more
than one-tenth of the aggregate number of the Shares to be purchased on such
date, the other Underwriters shall be obligated severally in the proportions
that the number of Firm Shares set forth opposite their respective names in
Schedule II bears to the aggregate number of Firm Shares set forth opposite the
names of all such non-defaulting Underwriters, or in such other proportions as
you may specify, to purchase the Shares which such defaulting Underwriter or
Underwriters agreed but failed or refused to purchase on such date; provided
that in no event shall the number of Shares that any Underwriter has agreed to
purchase pursuant to this Agreement be increased pursuant to this Section 11 by
an amount in excess of one-ninth of such number of Shares without the written
consent of such Underwriter. If, on the Closing Date, any Underwriter or
Underwriters shall fail or refuse to purchase Firm Shares and the aggregate
number of Firm Shares with respect to which such default occurs is more than
one-tenth of the aggregate number of Firm Shares to be purchased, and
arrangements satisfactory to you, the Company and the Selling Stockholders for
the purchase of such Firm Shares are not made within 36 hours after such
default, this Agreement shall terminate without liability on the part of any
non-defaulting Underwriter, the Company or the Selling Stockholders. In any
such case either you or the relevant Sellers shall have the right to postpone
the Closing Date, but in no event for longer than seven days, in order that the
required changes, if any, in the Registration Statement and in the Prospectus or
in any other documents or arrangements may be effected. If, on the Option
Closing Date, any Underwriter or Underwriters shall fail or refuse to purchase
Additional Shares and the aggregate number of Additional Shares with respect to
which such default occurs is more than one-tenth of the aggregate number of
Additional Shares to be purchased, the non-defaulting Underwriters shall have
the option to (i) terminate their obligation hereunder to purchase Additional
Shares or (ii) purchase not less than the number of Additional Shares that such
non-defaulting Underwriters would have been obligated to purchase in the absence
of such default. Any action taken under this paragraph shall not relieve any
defaulting Underwriter from liability in respect of any default of such
Underwriter under this Agreement.
If this Agreement shall be terminated by the Underwriters, or
any of them, because of any failure or refusal on the part of any Seller
to comply with the terms or to fulfill any of the conditions of this Agreement,
or if for any reason any Seller shall be unable to perform its obligations under
this Agreement, the Sellers will reimburse the Underwriters or such Underwriters
as have so terminated this Agreement with respect to themselves, severally, for
all out-of-pocket expenses (including the fees and disbursements of their
counsel) reasonably incurred by such Underwriters in connection with this
Agreement or the offering contemplated hereunder.
12. COUNTERPARTS. This Agreement may be signed in two or
more counterparts, each of which shall be an original, with the same
effect as if the signatures thereto and hereto were upon the same instrument.
13. APPLICABLE LAW. This Agreement shall be governed by
and construed in accordance with the internal laws of the State of New
York.
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14. HEADINGS. The headings of the sections of this Agreement have been
inserted for convenience of reference only and shall not be deemed a part of
this Agreement.
Very truly yours,
AMERIPATH, INC.
By:
---------------------------------------
Name:
----------------------------------
Title:
---------------------------------
The Selling Stockholders named in Schedule
I hereto, acting severally
By:
-----------------------------------------
Attorney-in-Fact
Accepted as of the date hereof
Xxxxxx Xxxxxxx & Co. Incorporated
Xxxx Xxxxxx Xxxxxxxx Inc.
Xxxxxxxxx & Xxxxx
Xxxxx Jaffray Inc.
The Xxxxxxxx-Xxxxxxxx Company, Inc.
Acting severally on behalf of
themselves and the several
Underwriters named herein.
By Xxxxxx Xxxxxxx & Co. Incorporated
By
----------------------------------
Name:
Title:
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SCHEDULE I
SELLERS NUMBER OF SHARES TO BE SOLD
------- ------------------------------
ADDITIONAL
----------
FIRM SHARES SHARES
----------- ------
AmeriPath, Inc. 5,700,000 130,000
Summit 481,000 432,900
Xxxxxxxx 19,000 17,100
Xxxxx X. New 0 80,000
Xxxxxxx X. Xxxxxxx 0 80,000
Xxxxxxxxx X. Xxxxxx 0 80,000
Xxxxxxxxx X. Xxxxxxxxx 0 80,000
Xxxxxx X. Xxxx 0 30,000
----------------------------
Total...................... 6,200,000 930,000
========= =================
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SCHEDULE II
UNDERWRITER NUMBER OF FIRM SHARES TO BE PURCHASED
----------- -------------------------------------
Xxxxxx Xxxxxxx & Co. Incorporated
Xxxx Xxxxxx Xxxxxxxx Inc.
Xxxxxxxxx & Xxxxx
Xxxxx Jaffray Inc.
The Xxxxxxxx-Xxxxxxxx Company, Inc.
---------
Total............................ 6,200,000
=========
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