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Exhibit 10.32
STOCK ISSUANCE AGREEMENT
This STOCK ISSUANCE AGREEMENT is made as of August 29, 1996 among
Ameripath, Inc., a Delaware corporation (the "Company"), The First National
Bank of Boston ("FNBB"), FSC Corp., a Massachusetts corporation and an
affiliate of FNBB, NationsBank, N.A. (South) ("NationsBank") and Atlantic
Equity Corporation, a North Carolina corporation and an affiliate of
(NationsBank).
Recitals
The Company and FNBB and NationsBank (the "Banks") entered into an
Amendment No. 1 dated August 29, 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 the Banks an amendment fee
in accordance with their respective interests in the increase in the Maximum
Amount of Credit made effective by such Amendment (the "Amendment Fee").
Each of FNBB and NationsBank has elected to receive $125,000 of the
Amendment Fee in Common Stock of the Company (the "Common Stock Payment"),
Each of FNBB and NationsBank is willing to assign its right to the
Common Stock Payment to FSC Corp. and Atlantic Equity Corporation (the
"Holders"), respectively, and the Company is willing to issue and sell to such
Holders as full satisfaction of the Amendment Fee owed to NationsBank and as
partial satisfaction of the Amendment Fee owed to FNBB, the number of shares of
Common Stock set forth opposite the name of the Holders on Schedule 1 hereto,
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 and NationsBank hereby assign to FSC Corp,
and Atlantic Equity Corporation, respectively, and FSC Corp. and Atlantic
Equity Corporation hereby assume, all of the FNBB's and NationsBank's
respective rights to the Common Stock Payment.
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3. Sale and Purchase of Securities. On the terms and subject to
the conditions hereof, the Company hereby agrees to sell to each Holder, and by
its execution of this Agreement such Holder agrees to accept from the Company
as payment by the Company of the Common Stock Payment the number of shares of
Common Stock set forth opposite the name of such Holder on Schedule 1 hereto.
The shares of Common Stock being purchased by the Holders hereunder are
referred to herein as the "Securities". The Company agrees to deliver
certificates for the Securities to each Holder, registered in the name of such
Holder, immediately following the execution of this Agreement.
4. Representations and Warranties of the Company. The Company
represents and warrants to each of the Banks and Holders 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 the Holders 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 the Holders 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 firm 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.
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6. Indemnities. The Company agrees to indemnify and hold
harmless each Holder, 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.
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
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no Holder may assign any of such Holder's 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.
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 the
Holders as follows:
If to FSC Corp., at
000 Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
Telecopy: (000) 000-0000
Attention: Xxxx Xxxxxx
if to Atlantic Equity Corporation,
c/o NationsBank, N.A. (South)
Xxx Xxxxxxxxx Xxxxx, 00xx Xxxxx
Xxxx Xxxxxxxxxx, XX 00000
Telecopy: (000) 000-0000
Attention: Xxxxxxxxx Xxxx
8.8. The Company recognizes that the rights of the Holders
under this Agreement are unique, and, accordingly, the Holders will,
in addition to such other remedies as may be available to them
at law or in equity, have the right to enforce their rights hereunder
by actions for injunctive relief and specific performance to the
extent permitted by law. This Agreement is not intended to limit or
abridge any rights of the Holders 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
each of the Holders 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.
THE COMPANY: AMERIPATH, INC.
By /s/ Xxxxxx X. Xxxx
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Title: Executive Vice President and
Chief Financial Officer
THE BANKS: THE FIRST NATIONAL BANK OF
BOSTON
By /s/ Xxxxx X. Xxxxxxx
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Title: Vice President
NATIONSBANK, N.A. (SOUTH)
By: /s/ Xxxxxx X. Xxxx
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Title: Vice President
THE HOLDERS: FSC CORP.
By: /s/ Xxxx Xxxxxx Xxxxxx
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Title: Vice President
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ATLANTIC EQUITY CORPORATION
By: /s/ Xxxx X. Xxxx
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Title: President
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Schedule 1 - to Stock
Issuance Agreement
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Securities
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Name-of Holder Common Purchase Price
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FSC Corp. 12,500 $125,000
Atlantic Equity Corporation 7,500 $ 75,000
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TOTAL 20,000 $200,000
