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Exhibit 10.15
STOCK RIGHTS SURRENDER
& RESTRICTED STOCK GRANT AGREEMENT
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This STOCK RIGHTS SURRENDER & RESTRICTED STOCK GRANT AGREEMENT (the
"Agreement") dated and effective as of the 18th day of November, 1996, by and
among AmeriPath, Inc., a Delaware corporation ("AmeriPath" or the "Company"),
and each of _______________, M.D., ________________, M.D. and_____________,
M.D. (each, a "Doctor", and collectively, the "Doctors").
WHEREAS, the Doctors and AmeriPath are party to that certain stock
purchase agreement, dated as of ____________, 1996 (the "Purchase Agreement"),
by and among the Company, the Doctors and _____________ (the "Practice"),
pursuant to which AmeriPath purchased all of the capital stock of the Practice
from the Doctors (the "Acquisition");
WHEREAS, in connection with the Acquisition, which has been consummated,
each Doctor received certain purchase price consideration in exchange for the
capital stock and/or assets of the Practice sold, including certain contingent
stock rights pursuant to Section 1.3 of, and Schedule 1.3 to, the Purchase
Agreement (the "Stock Rights"), and certain non-negotiable subordinated
contingent notes due December 31, 2001 (each, a "Note" and, collectively, the
"Notes"), pursuant to Section 1.2 of the Purchase Agreement;
WHEREAS, the Stock Rights require AmeriPath to issue up to an aggregate
maximum amount of _______ shares (the "Maximum Shares") of AmeriPath Common
Stock, par value $.01 per share ("AmeriPath Stock"), upon the achievement of
certain specified operating earnings targets, on a cumulative basis over a
period of ____ years, as set forth in the Purchase Agreement and the schedules
thereto;
WHEREAS, after due consideration of all relevant factors, each of
AmeriPath and each Doctor believes that the Stock Rights conflict with the
overall goals of the Company and each Doctor, and each Doctor therefore desires
to amend and restructure certain of the consideration provided under the
Purchase Agreement and effect a surrender of such Doctor's Stock Rights in
exchange for a fixed number of shares of AmeriPath Stock, subject to certain
restrictions on transfer, all upon the terms and subject to the conditions set
forth in this Agreement;
WHEREAS, in consideration for the surrender of the Stock Rights,
AmeriPath desires to restructure and accelerate the payment of certain
consideration paid under the Purchase Agreement and grant and convey to each
Doctor, and each Doctor desires to acquire and receive from AmeriPath, ______
shares of AmeriPath Stock (as defined in Section 2.1.3, the "Shares"), as
substitute purchase price consideration under the Purchase Agreement, which
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Shares are subject to certain restrictions on transfer, upon the terms and
subject to the conditions set forth in this Agreement;
WHEREAS, AmeriPath and each of the Doctors negotiated in good faith, in
a bargained for exchange in determining the appropriate substitute purchase
price consideration being exchanged pursuant hereto, and each of the Doctors and
AmeriPath believe that the fair value of the Shares received by the Doctors is
approximately equal to the fair value of the Stock Rights surrendered;
NOW, THEREFORE, in consideration of the premises and the respective
mutual agreements, covenants, representations and warranties herein contained,
and for other good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, the parties hereto, intending to be legally bound,
hereby agree as follows:
ARTICLE 1
SURRENDER OF STOCK RIGHTS;
GRANT OF SHARES; SURRENDER
1.1 Surrender of Stock Rights. In consideration for the issuance, grant,
conveyance and delivery of the Shares by AmeriPath to each Doctor pursuant to
Section 1.2 hereof, each Doctor hereby irrevocably agrees to surrender, cancel
and terminate such Doctor's Stock Rights, including all of such Doctor's right,
title and interest in and to the Stock Rights, for the benefit of AmeriPath. In
furtherance and not in limitation of the foregoing, each Doctor hereby
irrevocably agrees to the surrender, cancellation and termination of all rights
of such Doctor to, and all obligations of AmeriPath (or any subsidiary or
affiliate of AmeriPath) under or in connection with, the Stock Rights, and
AmeriPath hereby accepts and agrees to such surrender, cancellation and
termination. Upon the grant and conveyance of Shares pursuant to Section 1.2
hereof, (i) each Doctor shall have no further right, title or interest in, to or
under the Stock Rights, and shall have no right or claim in connection
therewith, and (ii) the Stock Rights, and any and all obligations of AmeriPath
in connection therewith, shall be cancelled and terminated.
1.2 Grant of Shares. Subject to the terms and conditions of this
Agreement, and in consideration for the surrender, cancellation and termination
of the Stock Rights by each Doctor pursuant to Section 1.1 hereof, AmeriPath
hereby agrees to issue, grant, convey and deliver to each Doctor, and each
Doctor hereby agrees to receive and accept delivery of, the Shares, consisting
of ______ shares of AmeriPath Stock, which Shares shall be subject to the
restrictions on transfer set forth in Article 2 hereof. Promptly following
execution and delivery of this Agreement, AmeriPath shall deliver to each Doctor
a certificate evidencing the Shares, free and clear of all liens, encumbrances
and restrictions (other than those created under or pursuant to this Agreement,
the Company's shareholders' agreement or federal or state securities laws), duly
endorsed or together with appropriate stock powers
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or other instruments of transfer and with all requisite transfer stamps
attached. The Shares, when issued to each Doctor in accordance with this
Section 1.2, shall be duly authorized, validly issued, fully paid and
non-assessable shares of AmeriPath Stock.
ARTICLE 2
RESTRICTIONS ON TRANSFER
2.1 Restrictions on Transfer.
2.1.1 Except as is specifically permitted by the provisions
of this ARTICLE 2, the sale, assignment, transfer, conveyance, pledge, margin,
hypothecation, gift, bequest, devise, levy, execution or other disposition
(hereinafter, each, a "transfer") of a Doctor's Shares, either directly or
indirectly, by operation of law or otherwise, to any person (including any
individual, trust, corporation, partnership, company, association, syndicate,
venture, special purpose vehicle or other entity) is strictly prohibited.
2.1.2 In furtherance and not in limitation of the foregoing,
no Doctor shall transfer any Shares at any time if such transfer would
constitute a breach of any shareholders agreement with AmeriPath, or a
violation of any federal or state securities or "blue sky" laws, rules or
regulations (collectively, "Securities Laws"), or a breach of the conditions to
any exemption from registration of the Shares under any such Securities Laws,
or a breach of any undertaking or agreement of such Doctor entered into with
AmeriPath pursuant to such Securities Laws or in connection with obtaining an
exemption thereunder, and the Company shall not transfer upon its books any
Shares unless prior thereto the Company shall have received an opinion, in form
and substance satisfactory to the Company, of counsel, reasonably satisfactory
to the Company, that such transfer is in compliance with this ARTICLE 2.
2.1.3 For purposes of this Agreement (and the restrictions
set forth in this Article 2), the term "Shares" shall mean and include (i) the
shares of AmeriPath Stock issued, granted, conveyed and delivered to each Doctor
pursuant to Section 1.1 hereof (the "Primary Shares"), and (ii) any and all
other or additional shares of capital stock of AmeriPath issued or delivered by
AmeriPath with respect to the shares of AmeriPath Stock described in clause (i)
hereof, including without limitation any shares of capital stock of AmeriPath
issued or delivered with respect to such shares as a result of any stock split,
stock dividend, stock distribution, recapitalization or similar transaction (the
"Additional Shares").
2.2 Lapse of Transfer Restrictions Over Time. Notwithstanding
the provisions of Section 2.1.1 hereof, commencing on ____________, 1997, and on
each of the [four] one-year anniversaries of such date, [20%] of the Shares
(including both the Primary Shares and any Additional Shares issued with respect
to such Primary Shares) owned by each Doctor shall be free of the restrictions
set forth in Section 2.1.1, such restrictions at such time having
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lapsed and no longer being applicable to such percentage of the Shares, so that
after [five (5)] years none of the Shares (including Primary Shares and
Additional Shares) shall be subject to the restrictions set forth in Section
2.1.1 hereof; provided, however, that simultaneous with the consummation of a
Change of Control (as defined below), the restrictions on transfer provided in
Section 2.1.1 shall immediately and fully lapse and terminate with respect to
all of the Shares. A "Change of Control" for purposes hereof shall mean and
include a transaction--including a merger, share exchange, tender offer,
recapitalization, or similar transaction involving the purchase of the
outstanding capital stock of AmeriPath--as a result of which, and upon the
consummation of which, 80% or more of the issued and outstanding capital stock
of AmeriPath is acquired by any Person.
2.3 Permitted Conditional Transfer Upon Death. Notwithstanding the
provisions of Section 2.1.1, upon a Doctor's death, the Shares owned by such
Doctor shall be transferable solely pursuant to the Doctor's will or in
accordance with the laws of descent and distribution, if, and only if, the
descendants or devisees, as applicable, of the Shares execute and deliver to
AmeriPath an agreement, in form and substance satisfactory to AmeriPath,
evidencing their agreement to the restrictions contained in this ARTICLE 2.
2.4 Legend(s) on Stock Certificates. Each Doctor understands and agrees
that any and all stock certificates evidencing the Shares shall contain
appropriate restrictive legends indicating, in form satisfactory to AmeriPath,
the restrictions to which such Shares are subject, as provided under this
Agreement.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES
3.1 Representations and Warranties of Each Doctor. Each
Doctor, understanding that AmeriPath is relying upon the following, represents
and warrants to AmeriPath as follows:
3.1.1 Each Doctor has been offered, and up to the date
hereof, shall be offered, the opportunity to ask questions of, and
receive answers from, AmeriPath and its officers, and the Doctors have
been given full and complete access to all available information and
data relating to the business and assets of AmeriPath, have obtained
such additional information about AmeriPath which the Doctors have
deemed necessary in order to evaluate the opportunities, both financial
and otherwise, with respect to AmeriPath and, except as set forth
herein, have not relied on any representation, warranty or other
statement concerning AmeriPath in their evaluation of the decision to
consummate the transactions contemplated herein. On the basis of the
foregoing, each Doctor is familiar with the operations, business plans
and financial condition of AmeriPath.
3.1.2 Each Doctor understands that he must bear the economic
risk of the Shares for an indefinite period of time because, except as
provided in this Agreement, (i) each Doctor understands that AmeriPath
proposes to issue and deliver the shares of AmeriPath Common Stock
issuable in accordance with this Agreement, without compliance with the
registration requirements of the Securities Act of 1933, as amended (the
"Securities Act"), that for such purpose AmeriPath will rely upon the
representations, warranties, covenants and agreements contained
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herein, as well as any additional representations, warranties,
covenants, agreements and certifications requested by AmeriPath to be
delivered by the Doctors at such time of issuance of the AmeriPath
Stock; and that such noncompliance with registration is not permissible
unless such representations and warranties are correct and such
covenants and agreements are performed at and as of the time of
issuance; (ii) each Doctor understands that, under existing rules of
the Securities and Exchange Commission (the "SEC"), there are
substantial restrictions on the transferability of the Shares; the
Shares may be transferred only if registered under the Securities Act
or if an exemption from such registration is available; the Doctors may
not be able to avail themselves of the provisions of Rule 144
promulgated by the SEC under the Securities Act with respect to the
transfer of the Shares; (iii) the Shares may not be sold, transferred,
pledged, or otherwise disposed of except pursuant to ARTICLE 2 hereof,
and then only with an opinion of counsel for or satisfactory to
AmeriPath that registration under the Securities Act or any applicable
state securities laws is not required; and (iv) AmeriPath neither has
an obligation to register a sale of the Shares held by any Doctor nor
has it agreed to do so in the future.
3.1.3 Each Doctor is an "accredited investor", as such term
is defined in Rule 501 of Regulation D promulgated under the Securities
Act in that, as of the date of this Agreement, he or she either (a)
(either individually or jointly with his or her spouse) has a net worth
in excess of $1,000,000; or (b) had an individual income in excess of
$200,000 in each of the two most recent years or joint income with his
or her spouse in excess of $300,000 in each of those years, and
reasonably expects reaching the same income level in the current year.
3.1.4 Each Doctor is a sophisticated investor familiar with
the type of risks inherent in the acquisition of securities such as the
Shares and such Doctor's financial position is such that such Doctor can
afford to retain his Shares for an indefinite period of time without
realizing any direct or indirect cash return on such Doctor's
investment.
3.1.5 Each Doctor understands, agrees and acknowledges that
the Shares have not been registered under the Florida Securities Act in
reliance upon exemption provisions contained therein which AmeriPath
believes are available. Any sale made pursuant to such exemption
provisions is voidable by the purchaser within three business days after
the first tender of consideration is made by the purchaser to the
issuer, an agent of the issuer or an escrow agent. A withdrawal within
such three-day period will be without any further liability to any
person (except that the purchase price attributable to such withdrawal
must be returned to the purchaser). To accomplish this withdrawal, a
purchaser need only send a letter or telegram to AmeriPath at the
address set forth herein, indicating his or her intention to withdraw.
Such letter or telegram should be sent and postmarked prior to the end
of the aforementioned third business day. It is advisable to send such
letter by certified mail, return receipt requested, to ensure that it is
received and also to evidence the
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date it was mailed. If the request is made orally, in person or
by telephone, to a representative of AmeriPath, a written confirmation
that the request has been received should be requested.
3.1.6 Each Doctor is acquiring the Shares for such Doctor's
own account and not with a view to, or for sale in connection with, the
distribution thereof within the meaning of the Securities Act.
3.1.7 Each Doctor understands that the certificates
evidencing the Shares will bear appropriate restrictive legends.
3.1.8 Each Doctor understands that, in connection with the
surrender, cancellation and termination of the Stock Rights pursuant to
Section 1.1 hereof, such Doctor is irrevocably and forever relinquishing
valuable contingent rights to receive shares of AmeriPath Stock,
including (depending upon the operating earnings performance of the
Practice and other factors) the possible right to receive substantially
more shares of AmeriPath Stock than the number of Shares being issued,
granted, conveyed and delivered pursuant to Section 1.2 hereof. Each
Doctor also understands and agrees that the restrictions on transfer
provided for herein are reasonable, necessary and bargained for in
connection with this Agreement.
3.2 Representations and Warranties of AmeriPath. AmeriPath
represents and warrants to each Doctor as follows:
3.2.1 AmeriPath has full corporate authority and power to
issue the Shares and deliver the Shares to the Doctors as provided herein. Upon
execution and delivery hereof, AmeriPath will transfer and convey, and the
Doctors will acquire, good, valid and marketable title to the Shares, free and
clear of all claims, encumbrances, security interests, charges, or liens of any
kind whatsoever (other than those created under or pursuant to this Agreement,
the Company's shareholders' agreement or federal or state securities laws).
3.2.2 All shares of AmeriPath Stock required to be issued by
AmeriPath to the Doctors, in accordance with the terms and subject to the
conditions set forth in this Agreement, shall, upon issuance and delivery, be
duly authorized, validly issued, fully paid and non-assessable.
ARTICLE 4
MISCELLANEOUS
4.1 Survival of Representations, Warranties, Covenants and
Agreements. All of the representations, warranties, covenants and agreements of
AmeriPath and each Doctor
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contained in this Agreement shall be continuing and shall survive the closing
without limitation as to time.
4.2 Expenses. Each party hereto shall bear its own fees, costs
and expenses with respect to this Agreement and the transactions contemplated
hereby.
4.3 Notices. All notices and other communications required or
permitted to be given hereunder shall be in writing and shall be deemed to have
been duly given when delivered by hand, upon delivery to Federal Express or
another reputable overnight courier, or upon their deposit in the United States
mail, by registered or certified mail (postage prepaid, return receipt
requested) to the parties at the addresses specified in the Purchase Agreement
or at such other addresses as any party may from time to time give written
notice to the others.
4.4 Headings. The headings contained in this Agreement are
inserted for convenience only and do not constitute a part of this Agreement or
affect the meaning, construction or interpretation of this Agreement.
4.5 Entire Agreement. This Agreement constitutes the entire
agreement between the parties hereto with respect to the subject matter hereof,
and supersedes all prior agreements, understandings, negotiations and
discussions, both written and oral, between the parties hereto with respect to
the transactions contemplated hereby.
4.6 Benefits; Binding Effect. This Agreement and all of the
provisions hereof shall inure to the benefit of, and be binding upon, the
parties hereto and their respective heirs, devisees, successors and assigns and
are not intended to confer upon any other person any rights or remedies
hereunder. The obligations and agreements of each Doctor are, and shall be
deemed and interpreted to be, separate and distinct from, and thus not
dependent upon, the obligations and agreements of each other Doctor, and shall
be binding upon such Doctor and enforceable by AmeriPath.
4.7 No Waiver. No waiver of any of the provisions of this
Agreement shall be deemed or shall constitute a waiver of any other provisions
hereof (whether or not similar), nor shall any such waiver constitute a
continuing waiver unless otherwise expressly so provided.
4.8 Agreement To Take Actions. It is the intent of the parties
hereto that this Agreement be valid and enforceable in accordance with the laws
of the State of Florida. Each party hereto shall execute, and/or prepare and
deliver such other records, resolutions, consents, documents, certificates,
agreements, notes, guarantees and other writings and take such further and
other actions as may be necessary or appropriate in order to ensure the proper
effectiveness and enforceability of this Agreement. Further, each party hereto
shall perform its covenants and agreements expeditiously and diligently, and in
good faith, and shall not take any action or omit to take any action which
might adversely affect its ability
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to perform the obligations or consummate the transactions contemplated by this
Agreement and shall execute and/or prepare and deliver such records,
resolutions, consents, documents, certificates, agreements, notes, guarantees
and other writings and take such other actions as may be necessary or
appropriate in order expeditiously to perform any such obligations and/or
consummate any such transactions.
4.9 Severability. The invalidity of any one or more of the
words, phrases, sentences, clauses, sections or subsections contained in this
Agreement shall not affect the enforceability of the remaining portions of this
Agreement or any part hereof, all of which are inserted conditionally on their
being valid in law, and, in the event that any one or more of the words,
phrases, sentences, clauses, sections or subsections contained in this
Agreement shall be declared invalid, this Agreement shall be construed as if
such invalid word or words, phrase or phrases, sentence or sentences, clause or
clauses, section or sections, or subsection or subsections had not been
inserted. In addition, although this Agreement reflects the binding obligation
and agreement of more than one Doctor, the obligations and agreements of each
Doctor are, and shall be deemed and interpreted to be, separate and distinct
from, and thus not dependent upon, the obligations and agreements of each other
Doctor.
4.10 Attorneys' Fees. If any party to this Agreement seeks to
enforce the terms and provisions of this Agreement, then the prevailing party
in such action shall be entitled to recover from the losing party all costs in
connection with such action, including without limitation reasonable attorneys'
fees, expenses and costs incurred at the trial court and all appellate levels.
4.11 Counterparts. This Agreement may be executed in one or more
counterparts, all of which shall be considered one and the same Agreement and
each of which shall be deemed an original.
4.12 Applicable Law. This Agreement shall be governed by, and
construed and enforced in accordance with, the laws of the State of Florida
(without reference to the conflict of laws provisions thereof). To the fullest
extent permitted by law, AmeriPath and each Doctor hereby (a) submits to the
jurisdiction of the Florida and United States courts for the Florida judicial
circuit and the federal district, respectively, wherein lies Broward County,
Florida for purposes of any legal action or proceeding brought under this
Agreement and (b) agrees that exclusive venue of any such action or proceeding
may be laid in Broward County, Florida and waive any claim that the same is an
inconvenient forum.
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IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement as of the date first written above.
DOCTORS:
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Name:
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AMERIPATH, INC.
By:
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Xxxxxx X. Xxxx, Chief Financial Officer
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