Exhibit 10.1
$75,000,000
AmeriPath, Inc.
10 1/2% Senior Subordinated Notes
Due 2013
AMENDED AND RESTATED
PURCHASE AGREEMENT
February 11, 2004
CREDIT SUISSE FIRST BOSTON LLC
CITIGROUP GLOBAL MARKETS INC.
DEUTSCHE BANK SECURITIES INC.
WACHOVIA CAPITAL MARKETS, LLC
c/o Credit Suisse First Boston
LLC,
Eleven Madison Avenue,
New York, New York
10010-3629
Dear Sirs:
1. Introductory .
AmeriPath, Inc., a Delaware corporation (the “ Company
”) and a wholly owned subsidiary of AmeriPath Holdings, Inc.
(“ Parent ”), proposes, subject to the terms and
conditions stated herein, to issue and sell to the several initial
purchasers named in Schedule A hereto (the “
Purchasers ”) $75,000,000 principal amount of its 10
1/2% Senior Subordinated Notes due 2013 (the “ Offered
Securities ”) to be issued as additional securities under
the indenture dated as of March 27, 2003 (the “
Indenture ”), among the Company, the Guarantors (as
defined in paragraph 2(e) below) and U.S. Bank National
Association, as Trustee, on a private placement basis pursuant to
an exemption under Section 4(2) of the United States
Securities Act of 1933, as amended (the “ Securities
Act ”). Concurrently with the consummation of the
purchase and sale of the Offered Securities, the Company will enter
into an amendment to the credit agreement (the “ Amendment
and Restatement ”) dated as of March 27, 2003 (as
amended, the “ Amended and Restated Credit Agreement
”) among itself, Parent, the guarantors named therein, Credit
Suisse First Boston, as administrative and collateral agent, and
the lenders named therein. In connection therewith, the
Company hereby agrees with the several Purchasers as
follows:
The obligation of the Company to
sell to the several Purchasers the Offered Securities is subject to
the Company’s obtaining the requisite consents (the “
Consents ”) from the lenders required to effect the
Amendment and Restatement.
The holders of the Offered
Securities will be entitled to the benefits of a Registration
Rights Agreement among the Company, the Guarantors and the
Purchasers (the “ Registration Rights Agreement
”), pursuant to which the Company agrees to file a
registration statement with
the Securities Exchange Commission (the “
Commission ”) registering the resale of the Offered
Securities under the Securities Act.
2. Representations and
Warranties of the Company . The Company represents and
warrants to, and agrees with, the several Purchasers
that:
(a) A preliminary offering
circular and an offering circular relating to the Offered
Securities has been prepared by the Company. Such preliminary
offering circular (the “ Preliminary Offering Circular
”) and offering circular (the “ Offering
Circular ”), as supplemented as of the date of this
Agreement, together with any other document approved by the Company
for use in connection with the contemplated resale of the Offered
Securities, are hereinafter collectively referred to as the “
Offering Document ”. The Preliminary Offering
Circular as of its date did not and the Offering Circular as of the
date of this Agreement does not include 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. The preceding
sentence does not apply to statements in or omissions from the
Offering Document based upon written information furnished to the
Company by any Purchaser through Credit Suisse First Boston LLC
(the “ Representative ”) specifically for use
therein; it being understood and agreed that the only such
information is that described as such in Section 7(b)
hereof.
(b) The Company has been duly
incorporated and is an existing corporation in good standing under
the laws of the State of Delaware, with the corporate power and
authority to own its properties and conduct its business as
described in the Offering Document; and the Company is duly
qualified to do business as a foreign corporation in good standing
(to the extent such qualification exists) in all other
jurisdictions in which its ownership or lease of property or the
conduct of its business requires such qualification, except where
the failure to be so qualified individually or in the aggregate
would not have a material adverse effect on the business, assets,
operations, condition (financial or otherwise) or prospects of the
Company and the Subsidiaries (as defined in paragraph 2(c)
below) taken as a whole (a “ Material Adverse Effect
”).
(c) Each of the
Company’s subsidiaries (the “ Subsidiaries
”) has been duly incorporated or organized and is an existing
corporation or other applicable legal entity in good standing (to
the extent such qualification exists) under the laws of the
jurisdiction of its incorporation or organization, with power and
authority (corporate and other) to own its properties and conduct
its business as described in the Offering Document; and each
Subsidiary is duly qualified to do business as a foreign
corporation or other applicable legal entity in good standing (to
the extent such qualification exists) in all other jurisdictions in
which its ownership or lease of property or the conduct of its
business requires such qualification, except where the failure to
be so qualified individually or in the aggregate would not have a
Material Adverse Effect; the legal name and jurisdiction of
incorporation or organization of each Subsidiary has been set forth
on Schedule B hereto; all of the issued and outstanding
capital stock (or other equity securities) of each Subsidiary has
been duly authorized and validly issued and is fully paid and
nonassessable (or equivalent); and, except as disclosed in the
Offering Document or
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otherwise set forth on
Schedule B hereto, all of the capital stock of each Subsidiary
is owned by the Company, directly or through other Subsidiaries,
free from liens, encumbrances and defects.
(d) This Agreement, the
Indenture and the Registration Rights Agreement have been (or have
been or will be on the Closing Date, as the case may be, in the
case of the Guarantors) duly authorized by the Company and, to the
extent applicable, the Guarantors; this Agreement has been duly
executed and delivered by the Company; the Indenture has been (or
has been or will be on the Closing Date, as the case may be, in the
case of the Guarantors) duly executed and delivered by the Company,
Parent and the Guarantors; the Offered Securities have been duly
authorized by the Company; when the Offered Securities are
delivered and paid for pursuant to this Agreement on the Closing
Date (as defined in paragraph 3 below), the Registration
Rights Agreement will have been duly executed and delivered by the
Company and the Guarantors, such Offered Securities will have been
duly executed, authenticated, issued and delivered by the Company
and will conform in all material respects to the description
thereof contained in the Offering Document; and when the Offered
Securities have been issued, executed and authenticated and
delivered to and paid for by the Purchasers in accordance with the
terms of this Agreement and the Indenture, such Offered Securities
and the Registration Rights Agreement will constitute valid and
legally binding obligations of the Company and, to the extent
applicable, the Guarantors, enforceable in accordance with their
terms, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors’ rights, to
general equity principles (regardless of whether considered in a
proceeding at law or in equity) and, with respect to the
indemnification and contribution provisions of this Agreement and
the Registration Rights Agreement, applicable federal and state
securities laws.
(e) On the Closing Date, the
guaranty (the “ Guaranty ”) of the Offered
Securities by each Subsidiary that is a guarantor thereof (the
“ Guarantors ”) will have been duly authorized
by each such Guarantor, and will conform in all material respects
to the description thereof contained in the Offering Document; on
the Closing Date, the Joinder Agreement (as defined below) will
have been duly authorized, executed and delivered by each Guarantor
and, upon execution and delivery thereof, this Agreement will
constitute a valid and legally binding obligation of the
Guarantors, enforceable in accordance with its terms, subject to
bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to or
affecting creditors’ rights and to general equity principles
(regardless of whether considered in a proceeding at law or in
equity); when the Offered Securities have been issued, executed and
authenticated in accordance with the Indenture and delivered to and
paid for by the Purchasers in accordance with the terms of this
Agreement, the Guaranty of each Guarantor will constitute a valid
and legally binding obligation of each such Guarantor enforceable
in accordance with its terms, subject to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar laws of
general applicability relating to or affecting creditors’
rights, to general equity principles (regardless of whether
considered in a proceeding at law or in equity) and, with respect
to the indemnification and contribution provisions of this
Agreement and the Registration Rights Agreement, applicable federal
and state securities laws.
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(f) On the Closing Date, the
Amendment and Restatement will be duly authorized by the Company,
the Parent and the Guarantors; on the Closing Date, the Amendment
and Restatement will have been duly executed and delivered by the
Company, the Parent and the Guarantors; and the Amended and
Restated Credit Agreement conforms in all material respects to the
description thereof in the Offering Document, and on the Closing
Date, assuming the due authorization, execution, and delivery by
the agents and lenders thereunder, the Amended and Restated Credit
Agreement will constitute the valid and legally binding obligation
of each of the Company, the Parent and the Guarantors,
respectively, enforceable against each of them in accordance with
its terms, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors’ rights and
to general equity principles (regardless of whether considered in a
proceeding at law or in equity).
(g) On the Closing Date, the
Exchange Securities (as defined in the Registration Rights
Agreement) will have been duly authorized by the Company; and when
the Exchange Securities are issued, executed and authenticated in
accordance with the terms of the Exchange Offer (as defined in the
Registration Rights Agreement) and the Indenture, the Exchange
Securities will constitute valid and legally binding obligations of
the Company, enforceable in accordance with their terms, subject to
bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to or
affecting creditors’ rights and to general equity principles
(regardless of whether considered in a proceeding at law or in
equity).
(h) On the Closing Date, the
guaranty of the Exchange Securities by each Guarantor will have
been duly authorized by each such Guarantor; and when the Exchange
Securities have been issued, executed and authenticated in
accordance with the terms of the Exchange Offer and the Indenture,
the guaranty of each Guarantor will constitute a valid and legally
binding obligation of each such Guarantor, enforceable in
accordance with its terms, subject to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar laws of
general applicability relating to or affecting creditors’
rights and to general equity principles (regardless of whether
considered in a proceeding at law or in equity).
(i) Except as disclosed in the
Offering Document, there are no contracts, agreements or
understandings between the Company or any Subsidiary and any person
(other than the Purchasers) that would give rise to a valid claim
against the Company, any Subsidiary or any Purchaser for a
brokerage commission, finder’s fee or other like payment in
connection with the issuance of the Offered Securities.
(j) No consent, approval,
authorization, or order of, or filing with, any governmental agency
or body or any court is required for the consummation of the
transactions contemplated by this Agreement and the Registration
Rights Agreement in connection with the issuance and sale of the
Offered Securities by the Company, except for the filing of the
Exchange Offer Registration Statement or the Shelf Registration
Statement and the order of the Commission declaring the Exchange
Offer Registration Statement or the Shelf Registration Statement
(each as defined in the Registration Rights
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Agreement) effective and except as
may be required under the Trust Indenture Act of 1939, as amended
(the “Trust Indenture Act”) or state securities
laws.
(k) The performance of the
Indenture, the execution, delivery and performance of the Guaranty,
this Agreement and the Registration Rights Agreement, and the
issuance and sale of the Offered Securities and compliance with the
terms and provisions thereof will not result in a breach or
violation of any of the terms and provisions of, or constitute a
default under, (i) any statute, any rule, regulation or order
of any governmental agency or body or any court, domestic or
foreign, having jurisdiction over the Company, the Parent or any
Subsidiary or any of their properties, (ii) assuming receipt
of the Consents, any agreement or instrument to which the Company,
the Parent or any such Subsidiary is a party or by which the
Company, the Parent or any such Subsidiary is bound or to which any
of the properties of the Company, the Parent or any such Subsidiary
is subject, or (iii) the charter or by-laws of the Company,
the Parent or any such Subsidiary; and the Company has full power
and authority to authorize, issue and sell the Offered Securities
as contemplated by this Agreement, except in the case of
clause (i) and (ii) for any breach or violation of or default
under any such statute, rule, regulation, order, agreement or
instrument that individually or in the aggregate wound not have a
Material Adverse Effect.
(l) Except as disclosed in the
Offering Document, the Company and the Subsidiaries have good and
marketable title to all real properties and all other material
properties and assets owned by them, in each case free from liens,
encumbrances and defects that would materially affect the value
thereof or materially interfere with the use made or to be made
thereof by them; and, except as disclosed in the Offering Document,
the Company and the Subsidiaries hold any leased real or material
personal property under valid and enforceable leases with no
exceptions that would materially interfere with the use made or to
be made thereof by them.
(m) Except as would not
individually or in the aggregate have a Material Adverse Effect,
the Company and the Subsidiaries possess adequate certificates,
authorities or permits issued by appropriate governmental agencies
or bodies necessary to conduct the business now operated by them
and have not received any notice of proceedings relating to the
revocation or modification of any such certificate, authority or
permit.
(n) No labor dispute with the
employees of the Company or any Subsidiary exists or, to the
knowledge of the Company, is imminent that is reasonably likely to
have a Material Adverse Effect.
(o) Except as would not
individually or in the aggregate have a Material Adverse Effect,
the Company and the Subsidiaries own, possess or can acquire on
reasonable terms, or have valid licenses or other legal rights to
use, adequate trademarks, trade names and other rights to
inventions, know-how, patents, copyrights, confidential information
and other intellectual property (collectively, “
intellectual property rights ”) necessary to
conduct the business now operated by them, or presently used by
them, and have not received any notice of infringement of or
conflict with asserted rights of others with respect to any
intellectual property rights.
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(p) Except as disclosed in the
Offering Document, none of the Company or any of the Subsidiaries
is in violation of any statute, any rule, regulation, decision or
order of any governmental agency or body or any court, domestic or
foreign, relating to the use, disposal or release of hazardous or
toxic substances or relating to the protection or restoration of
the environment or human exposure to hazardous or toxic substances
(collectively, “ environmental laws ”),
owns or operates any real property contaminated with any substance
that is subject to any environmental laws, is liable for any
off-site disposal or contamination pursuant to any environmental
laws, or is subject to any claim relating to any environmental
laws, which violation, contamination, liability or claim would
individually or in the aggregate have a Material Adverse Effect;
and the Company is not aware of any pending investigation which
might lead to such a claim.
(q) Except as disclosed in the
Offering Document, there are no pending actions, suits or
proceedings against or, to the Company’s knowledge, affecting
the Company or any of the Subsidiaries or any of their respective
properties that, if determined adversely to the Company or any of
the Subsidiaries, would individually or in the aggregate have a
Material Adverse Effect, or would materially and adversely affect
the ability of the Company to perform its obligations under the
Indenture, this Agreement or the Registration Rights
Agreement, or which are otherwise material in the context of the
sale of the Offered Securities; and no such actions, suits or
proceedings are, to the knowledge of the Company,
threatened.
(r) The financial statements
included in the Offering Document present fairly in all material
respects the financial position of the Company and the
Subsidiaries, on a consolidated basis, as of the dates shown, and
their results of operations and cash flows for the periods shown,
and such financial statements have been prepared in conformity with
the generally accepted accounting principles in the United States
applied on a consistent basis; and the assumptions used in
preparing the pro forma financial statements included in the
Offering Document provide a reasonable basis for presenting the
significant effects directly attributable to the transactions or
events described therein, the related pro forma adjustments give
appropriate effect to those assumptions, and the pro forma columns
therein reflect the proper application of those adjustments to the
corresponding historical financial statement amounts.
(s) Except as disclosed in the
Offering Document, since the date of the latest audited financial
statements included in the Offering Document there has been no
material adverse change, nor any development or event involving a
prospective material adverse change, in the business, assets,
operations, condition (financial or other) or prospects of the
Company and the Subsidiaries taken as a whole, and, except as
disclosed in or contemplated by the Offering Document, there has
been no dividend or distribution of any kind declared, paid or made
by the Company or any Subsidiary on any class of capital
stock.
(t) The Company is not an
open-end investment company, unit investment trust or face-amount
certificate company that is or is required to be registered under
Section 8 of the United States Investment Company Act of 1940
(the “ Investment Company Act ”); and the
Company is not and, after giving effect to the offering and sale of
the
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Offered Securities and the
application of the proceeds thereof as described in the Offering
Document, will not be an “investment company” as
defined in the Investment Company Act.
(u) Other than the Existing
Notes (as defined below), no securities of the same class (within
the meaning of Rule 144A(d)(3) under the Securities Act) as
the Offered Securities are listed on any national securities
exchange registered under Section 6 of the Exchange Act or
quoted in a U.S. automated inter-dealer quotation
system.
(v) Assuming the accuracy of
the Purchasers’ representations and warranties contained in
Section 4 below, the offer and sale of the Offered Securities
by the Company to the several Purchasers in the manner contemplated
by this Agreement will be exempt from the registration requirements
of the Securities Act by reason of Section 4(2) thereof and
Regulation S and the Indenture has been qualified under the
United States Trust Indenture Act of 1939, as amended (the “
Trust Indenture Act ”); the Indenture conforms in all
material respects to the requirements of the Trust Indenture Act
and the rules and regulations of the Commission applicable to an
indenture that is qualified thereunder.
(w) Neither the Company or any
of its affiliates nor any person acting on its or their behalf
(i) has, within the six-month period prior to the date hereof,
offered or sold in the United States or to any U.S. person (as such
terms are defined in Regulation S under the Securities Act)
the Offered Securities or any security of the same class or series
as the Offered Securities (other than the Existing Notes) or
(ii) has offered or will offer or sell the Offered Securities
(A) in the United States by means of any form of general
solicitation or general advertising within the meaning of
Rule 502(c) under the Securities Act or (B) with respect
to any securities sold in reliance on Rule 903 of
Regulation S, by means of any directed selling efforts within
the meaning of Rule 902(c) of Regulation S. The
Company has not entered and will not enter into any contractual
arrangement with respect to the distribution of the Offered
Securities except for this Agreement. The Company issued
$275,000,000 principal amount of 10 1/2% Senior Subordinated Notes
Due 2013 under the Indenture, the terms of which are substantially
similar to the terms of the Offered Securities (the “
Existing Notes ”).
(x) Neither the Company or any
Subsidiary nor any agent thereof acting on their behalf has taken,
and none of them will take, any action that might cause the
transactions contemplated by this Agreement, including the issuance
or sale of the Offered Securities, to violate Regulation T,
Regulation U or Regulation X of the Board of Governors of
the Federal Reserve System.
3. Purchase, Sale and
Delivery of Offered Securities . On the basis of the
representations, warranties and agreements herein contained, but
subject to the terms and conditions herein set forth, the Company
agrees to sell to the Purchasers, and the Purchasers agree,
severally and not jointly, to purchase from the Company, at a
purchase price of 103.88% of the principal amount thereof plus
accrued interest from October 1, 2003, to the Closing Date (as
hereinafter defined) the respective principal amounts of Offered
Securities set forth opposite the names of the several Purchasers
in Schedule A hereto.
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The Company will deliver against
payment of the purchase price the Offered Securities to be offered
and sold by the Purchasers in reliance on Regulation S (the
“Regulation S Securities” ) in the form of
one or more temporary global Securities in registered form without
interest coupons (the “Temporary Regulation S Global
Securities” ) which will be deposited with the Trustee as
custodian for The Depository Trust Company (
“DTC” ) and registered in the name of
Cede & Co., as nominee for DTC. The Company will
deliver against payment of the purchase price the Offered
Securities to be purchased by each Purchaser hereunder and to be
offered and sold by each Purchaser in reliance on Rule 144A
under the Securities Act (the “144A Securities”
) in the form of one or more permanent global security in
definitive form without interest coupons (the “Restricted
Global Securities” ) deposited with the Trustee as
custodian for DTC and registered in the name of Cede &
Co., as nominee for DTC. The Temporary Regulation S Global
Securities and the Restricted Global Securities shall be assigned
separate CUSIP numbers. The Restricted Global Securities
shall include the legend regarding restrictions on transfer set
forth under “Transfer Restrictions” in the Offering
Document. Interests in any permanent global Securities will
be held only in book-entry form through DTC, except in the limited
circumstances described in the Offering Document.
Payment for the Temporary
Regulation S Global Securities and the 144A Securities shall
be made by the Purchasers in Federal (same day) funds by wire
transfer to an account of the Company or an account as the Company
may direct at a bank acceptable to the Representative, at the
office of Cravath, Swaine & Moore LLP at 9:30 a.m.
(New York time) on February 17, 2004, or at such other place
or time not later than seven full business days thereafter as the
Representative and the Company determine, such time being herein
referred to as the “ Closing Date ”, against
delivery to the Trustee as custodian for DTC of (i) the
Temporary Regulation S Global Securities representing all of
the Regulation S Securities and (ii) the Restricted
Global Securities representing all of the 144A Securities.
The Temporary Regulation S Global Securities and the
Restricted Global Securities will be made available for checking at
the office of Cravath, Swaine & Moore LLP or such other
place of closing at least 24 hours prior to the Closing
Date.
4. Representations by
Purchasers; Resale by Purchasers .
(a) Each Purchaser severally
represents and warrants to the Company that it is an
“accredited investor” within the meaning of
Regulation D under the Securities Act.
(b) Each Purchaser severally
acknowledges that the Offered Securities have not been registered
under the Securities Act and may not be offered or sold within the
United States or to, or for the account or benefit of, U.S. persons
except in accordance with Regulation S or pursuant to an
exemption from the registration requirements of the Securities
Act. Each Purchaser severally represents and agrees that it
has offered and sold the Offered Securities and will offer and sell
the Offered Securities (i) as part of their distribution at
any time and (ii) otherwise until 40 days after the later of
the commencement of the offering and the Closing Date, only in
accordance with Rule 144A (“ Rule 144A
”) or Rule 903 under the Securities Act.
Accordingly, neither such Purchaser nor its affiliates, nor any
persons acting on its or their behalf, have engaged or will engage
in any directed selling efforts with respect to the Offered
Securities, and such Purchaser, its affiliates and all persons
acting on its or their behalf have complied and will comply with
the offering restrictions requirement of Regulation S.
Each Purchaser severally
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agrees that, at or prior to confirmation of sale
of the Offered Securities, other than a sale pursuant to
Rule 144A, such Purchaser will have sent to each distributor,
dealer or person receiving a selling concession, fee or other
remuneration that purchases the Offered Securities from it during
the restricted period a confirmation or notice to substantially the
following effect:
“The Securities covered hereby
have not been registered under the U.S. Securities Act of 1933 (the
“Securities Act”) and may not be offered or sold within
the United States or to, or for the account or benefit of, U.S.
persons (i) as part of their distribution at any time or
(ii) otherwise until 40 days after the later of the date
of the commencement of the offering and the closing date, except in
either case in accordance with Regulation S (or Rule 144A
if available) under the Securities Act. Terms used above have
the meanings given to them by Regulation S.”
Terms used in this
subsection (b) have the meanings given to them by
Regulation S.
(c) Each Purchaser severally
agrees that it and each of its affiliates has not
entered
