Exhibit 10.2
$75,000,000
AmeriPath,
Inc.
10½%
Senior Subordinated Notes Due 2013
REGISTRATION RIGHTS AGREEMENT
February 17, 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:
AmeriPath, Inc., a Delaware corporation (the
“Company”), proposes to issue and
sell to Credit Suisse First Boston LLC, Citigroup Global Markets Inc., Deutsche
Bank Securities Inc. and Wachovia Capital Markets, LLC (collectively, the “Initial Purchasers”), upon the terms set
forth in an Amended and Restated Purchase Agreement dated as of
February 11, 2004 (the “Purchase
Agreement”), $75,000,000 aggregate principal amount of its 10½%
Senior Subordinated Notes Due 2013 (the “Initial
Securities”) to be guaranteed (the “Guaranties”) by each of the subsidiaries of the Company listed
in Schedule I hereto (the “Guarantors”). The Initial Securities will be issued as
additional securities under the Indenture dated as of March 27, 2003 (the
“Indenture”), among the Company,
the Guarantors and U.S. Bank National Association, as trustee (the “Trustee”).
As an inducement to the Initial Purchasers to enter into the Purchase
Agreement, the Company and the Guarantors have agreed to enter into this
Agreement. Accordingly, the Company and
the Guarantors agree with the Initial Purchasers, for the benefit of the
Initial Purchasers and the holders of the Securities (as defined below)
(collectively the “Holders”), as
follows:
1. Registered Exchange Offer.
Unless not permitted by applicable law (after the Company has complied
with the ultimate paragraph of this Section 1), the Company shall prepare
and, not later than 90 days (such 90th day being a “Filing Deadline”) after the date on which
the Initial Purchasers purchase the Initial Securities pursuant to the Purchase
Agreement (the “Closing Date”),
file with the Securities and Exchange Commission (the “Commission”) a registration statement (the
“Exchange Offer Registration Statement”)
on an appropriate form under the Securities Act of 1933, as amended (the “Securities Act”), with respect to a
proposed offer (the “Registered Exchange
Offer”) to the Holders of Transfer Restricted Securities (as defined
in Section 6 hereof), who are not prohibited by any law or policy of the
Commission from participating in the Registered Exchange Offer, to issue and
deliver to such Holders, in exchange for the Initial Securities, a like aggregate
principal amount of debt securities of the Company issued under the Indenture,
identical in all material respects to the Initial Securities (except that the
Exchange Securities will not contain terms with respect to transfer
restrictions
and Additional Interest) and registered under the Securities Act (the “Exchange Securities”). The Company shall use its reasonable best
efforts to (i) cause such Exchange Offer Registration Statement to become
effective under the Securities Act within 210 days after the Closing Date
(such 210th day being an “Effectiveness
Deadline”) and (ii) keep the Exchange Offer Registration
Statement effective for not less than 30 days (or longer, if required by
applicable law) after the date notice of the Registered Exchange Offer is
mailed to the Holders (such period being called the “Exchange Offer Registration Period”).
If the Company commences the Registered
Exchange Offer, the Company (i) will be entitled to consummate the
Registered Exchange Offer 30 days after such commencement (provided
that the Company has accepted all the Initial Securities theretofore validly
tendered in accordance with the terms of the Registered Exchange Offer) and
(ii) will be required to consummate the Registered Exchange Offer no later
than 40 days after the date on which the Exchange Offer Registration
Statement is declared effective (such 40th day being the “Consummation Deadline”).
Following the declaration of the
effectiveness of the Exchange Offer Registration Statement, the Company shall
as soon as practicable commence the Registered Exchange Offer, it being the
objective of such Registered Exchange Offer to enable each Holder of Transfer
Restricted Securities electing to exchange the Initial Securities for Exchange
Securities (assuming that such Holder is not an affiliate of the Company within
the meaning of the Securities Act, acquires the Exchange Securities in the
ordinary course of such Holder’s business and has no arrangements with any
person to participate in the distribution of the Exchange Securities and is not
prohibited by any law or policy of the Commission from participating in the
Registered Exchange Offer) to trade such Exchange Securities from and after
their receipt without any limitations or restrictions under the Securities Act
and without material restrictions under the securities laws of the several
states of the United States.
The Company acknowledges that, pursuant to
current interpretations by the Commission’s staff of Section 5 of the
Securities Act, in the absence of an applicable exemption therefrom,
(i) each Holder which is a broker-dealer electing to exchange Initial
Securities, acquired for its own account as a result of market making
activities or other trading activities, for Exchange Securities (an “Exchanging Dealer”), is required to deliver
a prospectus containing the information set forth in (a) Annex A hereto on
the cover, (b) Annex B hereto in the “Exchange Offer Procedures”
section and the “Purpose of the Exchange Offer” section and (c) Annex C
hereto in the “Plan of Distribution” section of such prospectus in
connection with a sale of any such Exchange Securities received by such
Exchanging Dealer pursuant to the Registered Exchange Offer and (ii) an
Initial Purchaser that elects to sell Securities (as defined below) acquired in
exchange for Initial Securities constituting any portion of an unsold
allotment, is required to deliver a prospectus containing the information
required by Items 507 or 508 of Regulation S-K under the Securities
Act, as applicable, in connection with such sale.
The Company shall use its reasonable best
efforts to keep the Exchange Offer Registration Statement effective and to
amend and supplement the prospectus contained therein, in order to permit such
prospectus to be lawfully delivered by all persons subject to the prospectus
delivery requirements of the Securities Act for such period of time as such
persons must comply with such requirements in order to resell the Exchange
Securities; provided,
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however,
that (i) in the case where such prospectus and any amendment or supplement
thereto must be delivered by an Exchanging Dealer or an Initial Purchaser, such
period shall be the lesser of 180 days and the date on which all
Exchanging Dealers and the Initial Purchasers have sold all Exchange Securities
held by them (unless such period is extended pursuant to Section 3(j)
below) and (ii) the Company shall make such prospectus and any amendment
or supplement thereto available to any broker-dealer for use in connection with
any resale of any Exchange Securities for a period of not less than 180-days
after the consummation of the Registered Exchange Offer.
If, upon consummation of the Registered
Exchange Offer, any Initial Purchaser holds Initial Securities acquired by it
as part of its initial distribution, the Company, simultaneously with the
delivery of the Exchange Securities pursuant to the Registered Exchange Offer,
shall issue and deliver to such Initial Purchaser upon the written request of
such Initial Purchaser, in exchange (the “Private
Exchange”) for the Initial Securities held by such Initial
Purchaser, a like principal amount of debt securities of the Company issued
under the Indenture and identical in all material respects to the Initial
Securities (the “Private Exchange Securities”). The Initial Securities, the Exchange
Securities and the Private Exchange Securities are herein collectively called
the “Securities”.
In connection with the Registered Exchange
Offer, the Company shall:
(a) mail to each Holder a copy of
the prospectus forming part of the Exchange Offer Registration Statement,
together with an appropriate letter of transmittal and related documents,
provided that the Company shall only be required to mail such prospectus to
Holders of which the Company is aware after due inquiry;
(b) keep the Registered Exchange
Offer open for not less than 30 days (or longer, if required by applicable
law) after the date notice thereof is mailed to the Holders;
(c) utilize the services of a
depositary for the Registered Exchange Offer with an address in the Borough of
Manhattan, The City of New York, which may be the Trustee or an affiliate of
the Trustee;
(d) permit Holders to withdraw
tendered Securities at any time prior to the close of business, New York time,
on the last business day on which the Registered Exchange Offer shall remain
open; and
(e) otherwise comply in all
material respects with all applicable laws.
As soon as practicable after the close of the
Registered Exchange Offer or the Private Exchange, as the case may be, the
Company shall:
(x) accept for exchange
all the Securities validly tendered and not withdrawn pursuant to the
Registered Exchange Offer and the Private Exchange;
(y) deliver to the Trustee
for cancelation all the Initial Securities so accepted for exchange; and
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(z) cause the Trustee to
authenticate and deliver promptly to each Holder of the Initial Securities,
Exchange Securities or Private Exchange Securities, as the case may be, equal
in principal amount to the Initial Securities of such Holder so accepted for
exchange.
The Indenture provides that the Exchange
Securities will not be subject to the transfer restrictions set forth in the
Indenture and that all the Securities will vote and consent together on all
matters as one class and that none of the Securities will have the right to
vote or consent as a class separate from one another on any matter.
Interest on each Exchange Security and Private
Exchange Security issued pursuant to the Registered Exchange Offer and in the
Private Exchange will accrue from the last interest payment date on which
interest was paid on the Initial Securities surrendered in exchange therefor
or, if no interest has been paid on the Initial Securities, from the date of
original issue of the Initial Securities.
Each Holder participating in the Registered
Exchange Offer shall be required to represent to the Company that at the time
of the consummation of the Registered Exchange Offer (i) any Exchange
Securities received by such Holder will be acquired in the ordinary course of
business, (ii) such Holder will have no arrangements or understanding with any
person to participate in the distribution of the Securities or the Exchange
Securities within the meaning of the Securities Act, (iii) such Holder is not
an “affiliate”, as defined in Rule 405 of the Securities Act, of the
Company or if it is an affiliate, such Holder will comply with the registration
and prospectus delivery requirements of the Securities Act to the extent
applicable, (iv) if such Holder is not a broker-dealer, that it is not engaged
in, and does not intend to engage in, the distribution of the Exchange
Securities and (v) if such Holder is a broker-dealer, that it will receive
Exchange Securities for its own account in exchange for Initial Securities that
were acquired as a result of market-making activities or other trading
activities and that it will be required to acknowledge that it will deliver a prospectus
in connection with any resale of such Exchange Securities.
Notwithstanding any other provisions hereof,
the Company will ensure that (i) any Exchange Offer Registration Statement
and any amendment thereto and any prospectus forming part thereof and any
supplement thereto complies in all material respects with the Securities Act
and the rules and regulations thereunder, (ii) any Exchange Offer
Registration Statement and any amendment thereto does not, when it becomes
effective, contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading and (iii) any prospectus forming part of any
Exchange Offer Registration Statement, and any supplement to such prospectus,
does not include an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading.
If following the date hereof there has been
announced a change in Commission policy with respect to exchange offers that in
the reasonable opinion of counsel to the Company raises a substantial question
as to whether the Registered Exchange Offer is permitted by applicable federal
law, the Company will seek a no-action letter or other favorable decision from
the Commission allowing the Company to consummate the Registered Exchange
Offer. The
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Company will pursue the
issuance of such a decision to the Commission staff level. In connection with the foregoing, the
Company will take all such other actions as may be requested by the Commission
or otherwise required in connection with the issuance of such decision,
including without limitation (i) participating in telephonic conferences
with the Commission, (ii) delivering to the Commission staff an analysis
prepared by counsel to the Company setting forth the legal bases, if any, upon
which such counsel has concluded that the Registered Exchange Offer should be
permitted and (iii) diligently pursuing a resolution (which need not be
favorable) by the Commission staff.
2. Shelf Registration.
If, (i) because of any change in law or in applicable interpretations
thereof by the staff of the Commission, the Company is not permitted to effect
a Registered Exchange Offer, as contemplated by Section 1 hereof,
(ii) the Registered Exchange Offer is not consummated by the 250th day
after the Closing Date, (iii) any Initial Purchaser so requests with
respect to the Initial Securities (or the Private Exchange Securities) not
eligible to be exchanged for Exchange Securities in the Registered Exchange
Offer and held by it following consummation of the Registered Exchange Offer or
(iv) any Holder (other than an Exchanging Dealer) is not eligible to
participate in the Registered Exchange Offer or, in the case of any Holder
(other than an Exchanging Dealer) that participates in the Registered Exchange
Offer, such Holder does not receive freely tradeable Exchange Securities on the
date of the exchange and any such Holder so requests, the Company shall take
the following actions (the date on which any of the conditions described in the
foregoing clauses (i) through (iv) occur, including in the case of clauses
(iii) or (iv) the receipt of the required notice, being a “Trigger Date”):
(a) The Company shall promptly (but in no event more
than 45 days after the Trigger Date (such 45th day being a “Filing Deadline”)) file with the Commission
and thereafter use its reasonable best efforts to cause to be declared
effective no later than (1) in the case of clause (i) above, 210 days
after the Closing Date and (2) in the case of clause (ii), (iii) and
(iv) above, 75 days after the applicable Trigger Date (such 210th day or 75th
day, as the case may be, being an “Effectiveness
Deadline”) a registration statement (the “Shelf Registration Statement” and, together with the Exchange
Offer Registration Statement, a “Registration
Statement”) on an appropriate form under the Securities Act relating
to the offer and sale of the Transfer Restricted Securities by the Holders
thereof from time to time in accordance with the methods of distribution set
forth in the Shelf Registration Statement and Rule 415 under the Securities Act
(hereinafter, the “Shelf Registration”);
provided, however, that no Holder (other than an Initial
Purchaser) shall be entitled to have the Securities held by it covered by such
Shelf Registration Statement unless such Holder agrees in writing to be bound
by all the provisions of this Agreement applicable to such Holder (with the
Initial Purchasers’ agreement thereto being evidenced by their execution of
this Agreement).
(b) Subject to Section 3(j), the Company shall keep
the Shelf Registration Statement continuously effective in order to permit the
prospectus included therein to be lawfully delivered by the Holders of the
relevant Securities, for a period of two years (or for such longer period if
extended pursuant to Section 3(j) below) from the date of its
effectiveness or such shorter period that will terminate when all the
Securities covered by the Shelf Registration Statement (i) have been sold
pursuant thereto or (ii) are no longer
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restricted securities (as
defined in Rule 144 under the Securities Act, or any successor rule
thereof).
(c) Notwithstanding any other provisions of this
Agreement to the contrary, the Company shall cause the Shelf Registration
Statement and the related prospectus and any amendment or supplement thereto,
as of the effective date of the Shelf Registration Statement, amendment or
supplement, (i) to comply in all material respects with the applicable
requirements of the Securities Act and the rules and regulations of the
Commission and (ii) not to contain any untrue statement of a material fact
or omit to state a material fact required to be stated therein or necessary in
order to make the statements therein, in light of the circumstances under which
they were made, not misleading; it being understood that the Company shall not
be so responsible for information provided by or on behalf of Holders of
Securities.
3. Registration Procedures.
In connection with any Shelf Registration contemplated by Section 2
hereof and, to the extent applicable, any Registered Exchange Offer
contemplated by Section 1 hereof, the following provisions shall apply:
(a) The Company shall (i) if requested in writing,
furnish to each Initial Purchaser, prior to the filing thereof with the
Commission, a copy of the Registration Statement and each amendment thereof and
each supplement, if any, to the prospectus included therein and, in the event
that an Initial Purchaser (with respect to any portion of an unsold allotment
from the original offering) is participating in the Registered Exchange Offer
or the Shelf Registration Statement, the Company shall use its reasonable best
efforts to reflect in each such document, when so filed with the Commission,
such comments as such Initial Purchaser reasonably may propose; (ii) include
the information set forth in Annex A hereto on the cover, in Annex B hereto in
the “Exchange Offer Procedures” section and the “Purpose of the Exchange
Offer” section and in Annex C hereto in the “Plan of Distribution”
section of the prospectus forming a part of the Exchange Offer
Registration Statement and include the information set forth in Annex D hereto
in the Letter of Transmittal delivered pursuant to the Registered Exchange
Offer; (iii) if requested by an Initial Purchaser, include the information
required by Items 507 or 508 of Regulation S-K under the Securities Act, as
applicable, in the prospectus forming a part of the Exchange Offer Registration
Statement; (iv) include within the prospectus contained in the Exchange Offer
Registration Statement a section entitled “Plan of Distribution”
reasonably acceptable to the Initial Purchasers, which shall contain a summary
statement of the positions taken or policies made by the staff of the Commission
with respect to the potential “underwriter” status of any broker-dealer that is
the beneficial owner (as defined in Rule 13d-3 under the Securities Exchange
Act of 1934, as amended (the “Exchange Act”))
of Exchange Securities received by such broker-dealer in the Registered
Exchange Offer (a “Participating
Broker-Dealer”), whether such positions or policies have been
publicly disseminated by the staff of the Commission or such positions or
policies, in the reasonable judgment of the Initial Purchasers based upon
advice of counsel (which may be in-house counsel), represent the prevailing
views of the staff of the Commission; and (v) in the case of a Shelf
Registration Statement, include the names of the Holders who propose to sell
Securities pursuant to the Shelf Registration Statement as selling security
holders.
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(b) The Company shall give written notice to the Initial
Purchasers, the Holders of the Securities (but in the case of a Shelf
Registration, only to such Holders as are named as selling securityholders in
the prospectus forming part of the Shelf Registration Statement) and any
Participating Broker-Dealer from whom the Company has received prior written
notice that it will be a Participating Broker-Dealer in the Registered Exchange
Offer (which notice pursuant to clauses (ii)-(v) hereof shall be accompanied by
an instruction to suspend the use of the prospectus until the requisite changes
have been made (any such period of suspension, the “Suspension Period”)):
(i) when the Registration
Statement or any amendment thereto has been filed with the Commission and when
the Registration Statement or any post-effective amendment thereto has become
effective;
(ii) of any request by the
Commission for amendments or supplements to the Registration Statement or the
prospectus included therein or for additional information;
(iii) of the issuance by the
Commission of any stop order suspending the effectiveness of the Registration
Statement or the initiation of any proceedings for that purpose;
(iv) of the receipt by the Company or
its legal counsel of any notification with respect to the suspension of the
qualification of the Securities for sale in any jurisdiction or the initiation
or threatening of any proceeding for such purpose; and
(v) of the happening of any event
that requires the Company to make changes in the Registration Statement or the
prospectus in order that the Registration Statement or the prospectus do not
contain an untrue statement of a material fact nor omit to state a material
fact required to be stated therein or necessary to make the statements therein
(in the case of the prospectus, in light of the circumstances under which they
were made) not misleading.
(c) The Company shall make reasonable efforts to obtain
the withdrawal at the earliest possible time, of any order suspending the
effectiveness of the Registration Statement.
(d) The Company shall furnish to each Holder of
Securities included within the coverage of the Shelf Registration, without
charge, at least one copy of the Shelf Registration Statement and any
post-effective amendment thereto, including financial statements and schedules,
and, if the Holder so requests in writing, all exhibits thereto (including
those, if any, incorporated by reference).
(e) The Company shall deliver to each Exchanging Dealer
and each Initial Purchaser, and to any other Holder who so requests in writing,
without charge, at least one copy of the Exchange Offer Registration Statement
and any post-effective amendment thereto, including financial statements and
schedules, and, if any Initial
7
Purchaser or any such Holder
requests in writing, all exhibits thereto (including those incorporated by
reference).
(f) The Company shall, during the Shelf Registration
Period, deliver to each Holder of Securities included within the coverage of
the Shelf Registration, without charge, as many copies of the prospectus
(including each preliminary prospectus) included in the Shelf Registration
Statement and any amendment or supplement thereto as such person may reasonably
request in writing. The Company
consents, subject to the provisions of this Agreement, to the use of the prospectus
or any amendment or supplement thereto by each of the selling Holders of the
Securities in connection with the offering and sale of the Securities covered
by the prospectus, or any amendment or supplement thereto, included in the
Shelf Registration Statement.
(g) The Company shall deliver to each Initial Purchaser,
any Exchanging Dealer, any Participating Broker-Dealer and such other persons
required to deliver a prospectus following the Registered Exchange Offer,
without charge, as many copies of the final prospectus included in the Exchange
Offer Registration Statement and any amendment or supplement thereto as such
persons may reasonably request in writing.
The Company consents, subject to the provisions of this Agreement, to
the use of the prospectus or any amendment or supplement thereto by any Initial
Purchaser, if necessary, any Participating Broker-Dealer and such other persons
required to deliver a prospectus following the Registered Exchange Offer in
connection with the offering and sale of the Exchange Securities covered by the
prospectus, or any amendment or supplement thereto, included in such Exchange
Offer Registration Statement.
(h) Prior to any public offering of the Securities
pursuant to any Registration Statement the Company shall use its reasonable
best efforts to register or qualify or cooperate with the Holders of the
Securities included therein and their respective counsel in connection with the
registration or qualification of the Securities for offer and sale under the
securities or “blue sky” laws of such states of the United States as any Holder
of the Securities reasonably requests in writing and do any and all other acts
or things reasonably necessary to enable the offer and sale in such
jurisdictions of the Securities covered by such Registration Statement; provided,
however, that the Company shall not be required to (i) qualify
generally to do business in any jurisdiction where it is not then so qualified
or (ii) take any action which would subject it to general service of
process or to taxation in any jurisdiction where it is not then so subject.
(i) The Company shall cooperate with the Holders of the
Securities to facilitate the timely preparation and delivery of certificates
representing the Securities to be sold pursuant to any Registration Statement
free of any restrictive legends and in such denominations and registered in
such names as the Holders may request a reasonable period of time prior to
sales of the Securities pursuant to such Registration Statement.
(j) Upon the occurrence of any event contemplated by
paragraphs (ii) through (v) of Section 3(b) above during the period
for which the Company is required to maintain an effective Registration
Statement, the Company shall promptly prepare and file a post-effective
amendment to the Registration Statement or a supplement to the related
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prospectus and any other
required document so that, as thereafter delivered to Holders of the Securities
or purchasers of Securities, the prospectus 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, in light of the
circumstances under which they were made, not misleading. If the Company notifies the Initial
Purchasers, the Holders of the Securities and any known Participating
Broker-Dealer in accordance with paragraphs (ii) through (v) of
Section 3(b) above to suspend the use of the prospectus until the
requisite changes to the prospectus have been made as the case may be, then the Initial Purchasers, the Holders of
the Securities and any such Participating Broker-Dealers shall suspend use of
such prospectus (and shall discard or destroy all copies of such prospectus in
its possession, other than file copies), and the period of effectiveness of the
Shelf Registration Statement provided for in Section 2(b) above and the
Exchange Offer Registration Statement provided for in Section 1 above
shall each be extended by the number of days from and including the date of the
giving of such notice to and including the date when the Initial Purchasers,
the Holders of the Securities and any known Participating Broker-Dealer shall
have received such amended or supplemented prospectus pursuant to this
Section 3(j). Notwithstanding the
foregoing, the Company shall not be required to amend or supplement a
Registration Statement, any related prospectus or any document incorporated
therein by reference for a period not to exceed an aggregate of 60 days in any
calendar year if (i) an event occurs and is continuing as a result of
which the Shelf Registration would, in the Company’s good faith judgment,
contain 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 and
(ii) (A) the Company determines in its good faith judgment that the
disclosure of such event at such time would have a material adverse effect on
the business, operations or prospects of the Company or (B) the disclosure
otherwise relates to a pending material business transaction that has not yet
been publicly disclosed.
(k) Not later than the effective date of the applicable
Registration Statement, the Company will provide a CUSIP number for the Initial
Securities, the Exchange Securities or the Private Exchange Securities, as the
case may be, and provide the applicable trustee with printed certificates for
the Initial Securities, the Exchange Securities or the Private Exchange
Securities, as the case may be, in a form eligible for deposit with The
Depository Trust Company.
(l) The Company will comply with all rules and
regulations of the Commission to the extent and so long as they are applicable
to the Registered Exchange Offer or the Shelf Registration and will make
generally available to its security holders (or otherwise provide in accordance
with Section 11(a) of the Securities Act) an earnings statement satisfying
the provisions of Section 11(a) of the Securities Act, no later than 45
days after the end of a 12-month period (or 90 days, if such period is a fiscal
year) beginning with the first month of the Company’s first fiscal quarter
commencing after the effective date of the Registration Statement, which
statement shall cover such 12-month period.
(m) The Company may require each Holder of Securities to
be sold pursuant to the Shelf Registration Statement to furnish to the Company
such information regarding the
9
Holder and the distribution of
the Securities as the Company may from time to time reasonably require for
inclusion in the Shelf Registration Statement, and the Company may exclude from
such registration the Securities of any Holder that fails to furnish such
information within a reasonable time after receiving such request.
(n) The Company shall enter into such customary
agreements (including, if requested, an underwriting agreement in customary
form) and take all such other action, if any, as the Holders of a majority of
the Securities to be included in the Shelf Registration Statement shall
reasonably request in order to facilitate the disposition of the Securities
pursuant to any Shelf Registration.
(o) In the case of any Shelf Registration, the Company
shall (i) make reasonably available for inspection by the Holders of the
Securities, any underwriter participating in any disposition pursuant to the
Shelf Registration Statement and any attorney, accountant or other agent
retained by the Holders of the Securities or any such underwriter all relevant
financial and other records, pertinent corporate documents and properties of
the Company and (ii) cause the Company’s officers, directors, employees,
accountants and auditors to supply all relevant information reasonably
requested by the Holders of the Securities or any such underwriter, attorney,
accountant or agent in connection with the Shelf Registration Statement, in
each case, as shall be reasonably necessary to enable such persons, to conduct
a reasonable investigation within the meaning of Section 11 of the
Securities Act; provided, however, that the foregoing inspection
and information gathering shall be coordinated on behalf of the Initial
Purchasers by you and on behalf of the other parties, by one counsel designated
by and on behalf of such other parties as described in Section 4
hereof. All such information shall be
kept confidential by the recipients pursuant to a customary confidentiality
agreement to be entered into by such recipient prior to releasing any such
information.
(p) In the case of any Shelf Registration, the Company,
if requested by any Holder of Securities covered thereby, shall cause
(i) its counsel to deliver an opinion and updates thereof relating to the
Securities in customary form addressed to such Holders and the managing
underwriters, if any, thereof and dated, in the case of the initial opinion,
the effective date of such Shelf Registration Statement, which opinions shall
cover matters customarily addressed in opinions requested by underwriters in
connection with underwritten offerings; (ii) its officers to execute and
deliver all customary documents and certificates and updates thereof reasonably
requested by any underwriters of the applicable Securities and (iii) its
independent public accountants to provide to the selling Holders of the
applicable Securities and any managing underwriter therefor a comfort letter in
customary form and covering matters of the type customarily covered in comfort
letters in connection with primary underwritten offerings, subject to receipt
of appropriate documentation as contemplated, and only if permitted, by
Statement of Auditing Standards No. 72.
(q) In the case of the Registered Exchange Offer, if
requested by any Initial Purchaser, the Company shall cause (i) its
counsel to deliver to such Initial Purchaser a signed opinion, in customary
form, in connection with the preparation of a Registration Statement and (ii)
its independent public accountants to deliver to such Initial Purchaser a
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comfort letter, in customary
form, meeting the requirements as to the substance thereof as set forth in
Section 6(a) of the Purchase Agreement, with appropriate date changes.
(r) If a Registered Exchange Offer or a Private
Exchange is to be consummated, upon delivery of the Initial Securities by
Holders to the Company (or to such other Person as directed by the Company) in
exchange for the Exchange Securities or the Private Exchange Securities, as the
case may be, the Company shall mark, or caused to be marked, on the Initial
Securities so exchanged that such Initial Securities are being canceled in
exchange for the Exchange Securities or the Private Exchange Securities, as the
case may be; in no event shall the Initial Securities be marked as paid or
otherwise satisfied.
(s) The Company will use its reasonable best efforts to
confirm that the ratings of the Initial Securities will apply to the Securities
covered by a Registration Statement, if so requested by Holders of a majority
in aggregate principal amount of Securities covered by such Registration
Statement, or by the managing underwriters, if any.
(t) In the event that any broker-dealer registered
under the Exchange Act shall underwrite any Securities or participate as a
member of an underwriting syndicate or selling group or “assist in the
distribution” (within the meaning of the Conduct Rules (the “Rules”) of the National Association of
Securities Dealers, Inc. (“NASD”))
thereof, whether as a Holder of such Securities or as an underwriter, a
placement or sales agent or a broker or dealer in respect thereof, or
otherwise, the Company will assist such broker-dealer in complying with the
requirements of such Rules, including, without limitation, by (i) if such
Rules, including Rule 2720, shall so require, engaging a “qualified
independent underwriter” (as defined in Rule 2720) to participate in the
preparation of the Registration Statement relating to such Securities, to
exercise usual standards of due diligence in respect thereto and, if any
portion of the offering contemplated by such Registration Statement is an
underwritten offering or is made through a placement or sales agent, to
recommend the yield of such Securities, (ii) indemnifying any such qualified
independent underwriter to the extent of the indemnification of underwriters
provided in Section 5 hereof and (iii) providing such information to such
broker-dealer as may be required in order for such broker-dealer to comply with
the requirements of the Rules.
(u) The Company shall use its reasonable best efforts to
take all other steps necessary to effect the registration of the Securities
covered by a Registration Statement contemplated hereby.
4. Registration Expenses.
(a) All expenses incident to the
Company’s performance of and compliance with this Agreement (other than any
underwriting discounts or commissions or other such customary selling expenses)
will be borne by the Company, regardless of whether a Registration Statement is
ever filed or becomes effective, including without limitation;
(i) all registration and filing
fees and expenses;
11
(ii) all fees and expenses of
compliance with federal securities and state “blue sky” or securities laws;
(iii) all expenses of printing
(including printing certificates for the Securities to be issued in the
Registered Exchange Offer and the Private Exchange and printing of
Prospectuses), messenger and delivery services and telephone;
(iv) all fees and disbursements of
counsel for the Company;
(v) all application and filing fees
in connection with listing the Exchange Securities on a national securities
exchange or automated quotation system pursuant to the requirements hereof; and
(vi) all fees and disbursements of
independent certified public accountants of the Company (including the expenses
of any special audit and comfort letters required by or incident to such
performance).
The Company will bear its internal expenses
(including, without limitation, all salaries and expenses of its officers and
employees performing legal or accounting duties), the expenses of any annual
audit and the fees and expenses of any person, including special experts,
retained by the Company.
(b) In connection with any Registration
Statement required by this Agreement, the Company will reimburse the Initial
Purchasers and the Holders of Transfer Restricted Securities who are tendering
Initial Securities in the Registered Exchange Offer or selling or reselling
Securities pursuant to the “Plan of Distribution” contained in the Exchange
Offer Registration Statement or the Shelf Registration Statement, as
applicable, for the reasonable fees and disbursements not to exceed $25,000 of
not more than one counsel, who shall be Cravath, Swaine & Moore, LLP unless
another firm shall be chosen by the Holders of a majority in principal amount
of the Transfer Restricted Securities for whose benefit such Registration
Statement is being prepared.
5. Indemnification.
(a) The Company will indemnify and
hold harmless each Holder of the Securities, any Participating Broker-Dealer
and each person, if any, who controls such Holder or such Participating
Broker-Dealer within the meaning of the Securities Act or the Exchange Act
(each Holder, any Participating Broker-Dealer and such controlling persons are
referred to collectively as the “Indemnified
Parties”) from and against any losses, claims, damages or
liabilities, joint or several, or any actions in respect thereof (including,
but not limited to, any losses, claims, damages, liabilities or actions
relating to purchases and sales of the Securities) to which each Indemnified
Party may become subject under the Securities Act, the Exchange Act or
otherwise, insofar as such losses, claims, damages, liabilities or actions
arise out of or are based upon any untrue statement or alleged untrue statement
of a material fact contained in a Registration Statement or prospectus or in
any amendment or supplement thereto or in any preliminary prospectus relating
to a Shelf Registration, or arise out of, or are based upon, the omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein in light of the circumstances in
which they were made not misleading, and
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shall reimburse, as incurred, the Indemnified
Parties for any legal or other expenses reasonably incurred by them in
connection with investigating or defending any such loss, claim, damage,
liability or action in respect thereof; provided, however, that
(i) the Company shall not be liable in any such case to the extent that such
loss, claim, damage or liability arises out of or is based upon any untrue
statement or alleged untrue statement or omission or alleged omission made in a
Registration Statement or prospectus or in any amendment or supplement thereto
or in any preliminary prospectus relating to a Shelf Registration in reliance
upon and in conformity with written information pertaining to such Holder and
furnished to the Company by or on behalf of such Holder specifically for
inclusion therein, (ii) with respect to any untrue statement or omission or
alleged untrue statement or omission made in any preliminary prospectus relating
to a Shelf Registration Statement, the indemnity agreement contained in this
subsection (a) shall not inure to the benefit of any Holder or
Participating Broker-Dealer from whom the person asserting any such losses,
claims, damages or liabilities purchased the Securities concerned, to the
extent that a prospectus relating to such Securities was required to be
delivered by such Holder or Participating Broker-Dealer under the Securities
Act in connection with such purchase and any such loss, claim, damage or
liability of such Holder or Participating Broker-Dealer results from the fact
that there was not sent or given to such person, at or prior to the written
confirmation of the sale of such Securities to such person, a copy of the final
prospectus if the Company had previously furnished copies thereof to such
Holder or Participating Broker-Dealer and (iii) the Company shall not be
liable in any such case to the extent such loss, claim, damage or liability
directly results from any prospectus delivered by any Holder or Participating
Broker-Dealer during a Suspension Period, but only if such Holder or
Participating Broker-Dealer received proper notice of such Suspension Period as
required by this Agreement; provided further, however,
that this indemnity agreement will be in addition to any liability which the
Company may otherwise have to such Indemnified Party. The Company shall also indemnify underwriters, their officers and
directors and each person who controls such underwriters within the meaning of
the Securities Act or the Exchange Act to the same extent as provided above
with respect to the indemnification of the Holders of the Securities if
requested by such Holders.
(b) Each Holder of the Securities,
severally and not jointly, will indemnify and hold harmless the Company, its
officers and directors and each person, if any, who controls the Company within
the meaning of the Securities Act or the Exchange Act from and against any
losses, claims, damages or liabilities or any actions in respect thereof, to
which the Company, its officers and directors or any such controlling person
may become subject under the Securities Act, the Exchange Act or otherwise,
insofar as such losses, claims, damages, liabilities or actions arise out of or
are based upon any untrue statement or alleged untrue statement of a material
fact contained in a Registration Statement or prospectus or in any amendment or
supplement thereto or in any preliminary prospectus relating to a Shelf
Registration, or arise out of or are based upon the omission or alleged
omission to state therein a material fact necessary to make the statements
therein not misleading, but in each case only to the extent that the untrue
statement or omission or alleged untrue statement or omission was made in reliance
upon and in conformity with written information pertaining to such Holder and
furnished to the Company by or on behalf of such Holder specifically for
inclusion therein; and, subject to the limitation set forth immediately
preceding this clause, shall reimburse, as incurred, the Company for any legal
or other expenses reasonably incurred by the Company or any such controlling
person in connection with investigating or defending any loss, claim, damage,
liability or action in respect thereof.
This
13
indemnity agreement will be in addition to any liability which such
Holder may otherwise have to the Company or any of its controlling persons.
(c) Promptly after receipt by an
indemnified party under this Section 5 of notice of the commencement of
any action or proceeding (including a governmental investigation), such
indemnified party will, if a claim in respect thereof is to be made against the
indemnifying party under this Section 5, notify in writing the
indemnifying party of the commencement thereof; but the failure to notify the
indemnifying party will not, in any event, relieve it from any liability that
it may have under subsection (a) or (b) above except to the extent that it
has been materially prejudiced (through the forfeiture of substantive rights or
defenses or otherwise) by such failure; and provided further that the failure
to notify the indemnifying party shall not relieve it from any liability that
it may have to an indemnified party otherwise than under subsection (a) or
(b) above. In case any such action is
brought against any indemnified party, and it notifies the indemnifying party
of the commencement thereof, the indemnifying party will be entitled to
participate therein and, to the extent that it may wish, jointly with any other
indemnifying party similarly notified, to assume the defense thereof, with
counsel reasonably satisfactory to such indemnified party (who shall not,
except with the consent of the indemnified party, be counsel to the indemnified
party in connection with such suit or the transactions giving rise to such
suit), and after notice from the indemnifying party to such indemnified party
of its election so to assume the defense thereof the indemnifying party will
not be liable to such indemnified party under this Section 5 for any legal
or other expenses, other than reasonable costs of investigation, subsequently
incurred by such indemnified party in connection with the defense thereof. No indemnifying party shall, without the
prior written consent of the indemnified party, which consent shall not be
unreasonably withheld or delayed, effect any settlement of any pending or
threatened action 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 (i) includes an unconditional release of such
indemnified party from all liability on any claims that are the subject matter
of such action, and (ii) does not include a statement as to or an admission of
fault, culpability or a failure to act by or on behalf of any indemnified
party.
(d) If the indemnification provided
for in this Section 5 is unavailable or insufficient to hold harmless an
indemnified party under subsections (a) or (b) above, then each indemnifying
party shall contribute to the amount paid or payable by such indemnified party
as a result of the losses, claims, damages or liabilities (or actions in
respect thereof) referred to in subsection (a) or (b) above in such
proportion as is appropriate to reflect the relative fault of the indemnifying
party or parties on the one hand and the indemnified party on the other in
connection with the statements or omissions that resulted in such losses,
claims, damages or liabilities (or actions in respect thereof) as well as any
other relevant equitable considerations.
The relative fault of the parties 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 Company on the one hand or such Holder
or such other indemnified party, as the case may be, on the other, and the
parties’ relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission.
The amount paid by an indemnified party as a result of the losses,
claims, damages or liabilities referred to in the first sentence of this
subsection (d) shall be deemed to include any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any action or claim which is the subject of this
subsection (d). Notwithstanding
any
14
other provision of this Section 5(d),
the Holders of the Securities shall not be required to contribute any amount in
excess of the amount by which the net proceeds received by such Holders from
the sale of the Securities pursuant to a Registration Statement exceeds the
amount of damages which such Holders have 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 Securities
Act) shall be entitled to contribution from any person who was not guilty of
such fraudulent misrepresentation. For
purposes of this paragraph (d), each person, if any, who controls such
indemnified party within the meaning of the Securities Act or the Exchange Act
shall have the same rights to contribution as such indemnified party and each
director and officer and each person, if any, who controls the Company within
the meaning of the Securities Act or the Exchange Act shall have the same
rights to contribution as the Company.
(e) The agreements contained in
this Section 5 shall survive the sale of the Securities pursuant to a
Registration Statement and shall remain in full force and effect, regardless of
any termination or cancelation of this Agreement or any investigation made by
or on behalf of any indemnified party.
6. Additional Interest Under Certain
Circumstances.
(a) Additional interest (the “Additional Interest”) with respect to the
Securities shall be assessed, subject to Section 6(b) hereof, as follows
if any of the following events occur (each such event in clauses (i) through
(iv) below being herein called a “Registration
Default”):
(i) any Registration Statement
required by this Agreement is not filed with the Commission on or prior to the
applicable Filing Deadline;
(ii) any Registration Statement
required by this Agreement is not declared effective by the Commission on or
prior to the applicable Effectiveness Deadline;
(iii) the Registered Exchange Offer
has not been consummated on or prior to the Consummation Deadline; or
(iv) any Registration Statement
required by this Agreement has been declared effective by the Commission but
(A) such Registration Statement thereafter ceases to be effective or (B) such
Registration Statement or the related prospectus ceases to be usable in
connection with resales of Transfer Restricted Securities during the periods
specified herein because either (1) any event occurs as a result of which the
related prospectus forming part of such Registration Statement would include
any untrue statement of a material fact or omit to state any material fact
necessary to make the statements therein in the light of the circumstances
under which they were made not misleading, or (2) it shall be necessary to
amend such Registration Statement or supplement the related prospectus, to
comply with the Securities Act or the Exchange Act or the respective rules
thereunder.
15
Each of the foregoing will constitute a
Registration Default whatever the reason for any such event and whether it is
voluntary or involuntary or is beyond the control of the Company or pursuant to
operation of law or as a result of any action or inaction by the Commission.
Additional Interest shall accrue on the
Securities over and above the interest set forth in the title of the Securities
from and including the date on which any such Registration Default shall occur
to but excluding the date on which all such Registration Defaults have been
cured, at a rate of 0.25% per annum (the “Additional
Interest Rate”) for the first 90-day period immediately following
the occurrence of such Registration Default.
The Additional Interest Rate shall increase by an additional 0.25% per
annum with respect to each subsequent 90-day period until all Registration
Defaults have been cured, up to a maximum Additional Interest Rate of 1.0% per
annum. Notwithstanding any provisions
herein to the contrary, if a Registered Exchange Offer has been consummated,
Additional Interest shall not accrue on any Security that is no longer a
Transfer Restricted Security.
(b) A Registration Default referred
to in Section 6(a)(iv) hereof shall be deemed not to have occurred and be
continuing in relation to a Shelf Registration Statement or the related
prospectus if (i) such Registration Default has occurred solely as a result of
(x) the filing of a post-effective amendment to such Shelf Registration
Statement to incorporate annual audited financial information with respect to
the Company where such post-effective amendment is not yet effective and needs
to be declared effective to permit Holders to use the related prospectus or (y)
other material events, with respect to the Company that would need to be described
in such Shelf Registration Statement or the related prospectus and (ii) in the
case of clause (y), the Company is proceeding promptly and in good faith to
amend or supplement such Shelf Registration Statement and related prospectus to
describe such events; provided, however, that in any case if such
Registration Default occurs for a continuous period in excess of 60 days,
Additional Interest shall be payable in accordance with the above paragraph
from the day such Registration Default occurs until such Registration Default
is cured or until the Company is no longer required pursuant to this Agreement
to keep such Registration Statement or related prospectus in effect.
(c) Any amounts of Additional
Interest due pursuant to Section 6(a) will be payable in cash on the
regular interest payment dates with respect to the Securities. The amount of Additional Interest will be
determined by multiplying the applicable Additional Interest Rate by the
principal amount of the Securities and further multiplied by a fraction, the
numerator of which is the number of days such Additional Interest Rate was
applicable during such period (determined on the basis of a 360-day year
comprised of twelve 30-day months), and the denominator of which is 360.
(d) “Transfer Restricted Securities” means each Security until (i)
the date on which such Security has been exchanged by a person other than a
broker-dealer for a freely transferable Exchange Security in the Registered
Exchange Offer, (ii) following the exchange by a broker-dealer in the
Registered Exchange Offer of an Initial Security for an Exchange Security, the
date on which such Exchange Security is sold to a purchaser who receives from
such broker-dealer on or prior to the date of such sale a copy of the prospectus
contained in the Exchange Offer Registration Statement, (iii) the date on which
such Security has been effectively registered under the Securities Act and
disposed of in accordance with the Shelf Registration Statement or
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(iv) the date on which such Security is distributed to the public
pursuant to Rule 144 under the Securities Act or is saleable pursuant to Rule
144(k) under the Securities Act.
7. Rules 144 and 144A.
The Company shall use its reasonable best efforts to file the reports
required to be filed by it under the Securities Act and the Exchange Act in a
timely manner and, if at any time the Company is not required to file such
reports, it will, upon the written request of any Holder of Securities, make
publicly available other information so long as necessary to permit sales of
their securities pursuant to Rules 144 and 144A. The Company covenants that it will take such further action as
any Holder of Securities may reasonably request in writing, all to the extent
required from time to time to enable such Holder to sell Securities without
registration under the Securities Act within the limitation of the exemptions
provided by Rules 144 and 144A (including the requirements of Rule 144A(d)(4)).
The Company will provide a copy of this
Agreement to prospective purchasers of Initial Securities identified to the
Company by the Initial Purchasers upon request. If the Company ceases to be a reporting company under the
Exchange Act, upon the request of any Holder of Initial Securities, the Company
shall deliver to such Holder a written statement as to whether it has complied
with such requirements. Notwithstanding
the foregoing, nothing in this Section 7 shall be deemed to require the
Company to register any of its securities pursuant to the Exchange Act.
8. Underwritten Registrations.
If any of the Transfer Restricted Securities covered by any Shelf
Registration are to be sold in an underwritten offering, the investment banker
or investment bankers and manager or managers that will administer the offering
(“Managing Underwriters”) will be
selected by the Holders of a majority in aggregate principal amount of such
Transfer Restricted Securities to be included in such offering and reasonably
acceptable to the Company.
No person may participate in any underwritten
registration hereunder unless such person (i) agrees to sell such person’s
Transfer Restricted Securities on the basis reasonably provided in any
underwriting arrangements approved by the persons entitled hereunder to approve
such arrangements and (ii) completes and executes all questionnaires, powers of
attorney, indemnities, underwriting agreements and other documents reasonably
required under the terms of such underwriting arrangements.
9. Miscellaneous.
(a) Remedies. The Company acknowledges and agrees that any
failure by the Company to comply with its obligations under Section 1 and
2 hereof may result in material irreparable injury to the Initial Purchasers or
the Holders for which there is no adequate remedy at law, that it will not be
possible to measure damages for such injuries precisely and that, in the event
of any such failure, the Initial Purchasers or any Holder may obtain such
relief as may be required to specifically enforce the Company’s obligations
under Sections 1 and 2 hereof. The
Company further agrees to waive the defense in any action for specific
performance that a remedy at law would be adequate. Notwithstanding the foregoing, the Additional Interest is
intended to constitute the sole monetary damages that a Holder may collect as a
result of any Registration Default.
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(b) No Inconsistent Agreements. The Company will not on or after the date of
this Agreement enter into any agreement with respect to its securities that is
inconsistent with the rights granted to the Holders in this Agreement or
otherwise conflicts with the provisions hereof. The rights granted to the Holders hereunder do not in any way
conflict with and are not inconsistent with the rights granted to the holders
of the Company’s securities under any agreement in effect on the date hereof.
(c) Amendments and Waivers. The provisions of this Agreement may not be
amended, modified or supplemented, and waivers or consents to departures from
the provisions hereof may not be given, except by the Company and the written
consent of the Holders of a majority in principal amount of the Securities
affected by such amendment, modification, supplement, waiver or consents. Without the consent of the Holder of each
Security, however, no modification may change the provisions relating to the
payment of Additional Interest.
(d) Notices. All notices and other communications
provided for or permitted hereunder shall be made in writing by hand delivery,
first-class mail, facsimile transmission, or air courier which guarantees
overnight delivery:
(1) if to a Holder
of the Securities, at the most current address given by such Holder to the
Company.
(2) if to the Initial Purchasers:
Credit Suisse First Boston LLC
Eleven Madison Avenue
New York, NY 10010-3629
Fax No.: (212) 325-8278
Attention: Transactions Advisory Group
with a copy to:
Cravath, Swaine & Moore LLP
825 Eighth Avenue
Worldwide Plaza
New York, NY 10019-7475
Fax No.: (212) 474-3700
Attention: George A.
Stephanakis, Esq.
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(3) if to the Company:
AmeriPath, Inc.
7289 Garden Road
Suite 200
Riviera Beach, FL 33404
Fax No.: (561) 845-0129
Attention: Chief Financial Officer
with copies to:
Welsh, Carson, Anderson &
Stowe IX, L.P.
320 Park Avenue
Suite 2500
New York, NY 10022
Fax No.: (212) 893-9566
Attention: Paul B. Queally
D. Scott Mackesy
and
Ropes & Gray LLP
45 Rockefeller Plaza
New York, NY 10111
Fax No.: (212) 841-5725
Attention: Steven Rutkovsky, Esq.
All such notices and communications shall be
deemed to have been duly given as follows:
at the time delivered by hand, if personally delivered; three business
days after being deposited in the mail, postage prepaid, if mailed; when
receipt is acknowledged by recipient’s facsimile machine operator, if sent by
facsimile transmission; and on the day delivered, if sent by overnight air
courier guaranteeing next day delivery.
(e) Third Party Beneficiaries. The Holders shall be third party
beneficiaries to the agreements made hereunder between the Company, on the one
hand, and the Initial Purchasers, on the other hand, and shall have the right
to enforce such agreements directly to the extent they may deem such
enforcement necessary or advisable to protect their rights or the rights of
Holders hereunder.
(f) Successors and Assigns. This Agreement shall be binding upon the
Company and its successors and assigns.
(g) Counterparts. This Agreement may be executed in any number
of counterparts and by the parties hereto in separate counterparts, each of
which when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(h) Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
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(i) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
(j) Severability. If any one or more of the provisions
contained herein, or the application thereof in any circumstance, is held
invalid, illegal or unenforceable, the validity, legality and enforceability of
any such provision in every other respect and of the remaining provisions
contained herein shall not be affected or impaired thereby.
(k) Securities Held by the Company. Whenever the consent or approval of Holders
of a specified percentage of principal amount of Securities is required
hereunder, Securities held by the Company or its affiliates (other than
subsequent Holders of Securities if such subsequent Holders are deemed to be
affiliates solely by reason of their holdings of such Securities) shall not be
counted in determining whether such consent or approval was given by the
Holders of such required percentage.
(l) Submission to Jurisdiction; Waiver of
Immunities. Each of the
parties hereto hereby submits to the non-exclusive jurisdiction of the Federal
and state courts in the Borough of Manhattan in The City of New York in any
suit or proceeding arising out of or relating to this Agreement or the
transactions contemplated hereby. To
the extent that any such party may acquire any immunity from jurisdiction of
any court or from any legal process (whether through service of notice,
attachment prior to judgment, attachment in aid of execution, execution or
otherwise) with respect to itself or its property, it hereby irrevocably waives
such immunity in respect of this Agreement, to the fullest extent permitted by
law.
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If the foregoing is in accordance with your
understanding of our agreement, please sign and return to the Company a
counterpart hereof, whereupon this instrument, along with all counterparts,
will become a binding agreement among the several Initial Purchasers, the
Company and the Guarantors in accordance with its terms.
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VERY TRULY YOURS,
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AMERIPATH, INC.,
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by
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/s/ DAVID L. REDMOND
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Name: David
L. Redmond
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Title:
Executive Vice President and CFO
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3-GEN DIAGNOSTIC LABORATORIES, INC.
(a Utah corporation)
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AMERIPATH 5.01(a) CORPORATION
(a Texas not-for-profit corporation)
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AMERIPATH CINCINNATI, INC.
(an Ohio corporation)
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AMERIPATH CLEVELAND, INC.
(an Ohio corporation)
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AMERIPATH CONSOLIDATED LABS, INC.
(a Florida corporation)
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AMERIPATH KENTUCKY, INC.
(a Kentucky corporation)
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AMERIPATH LUBBOCK 5.01(a) CORPORATION
(a Texas not-for-profit corporation)
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AMERIPATH MARKETING USA, INC.
(a Florida corporation)
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AMERIPATH MICHIGAN, INC.
(a Michigan corporation)
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AMERIPATH MISSISSIPPI, INC.
(a Mississippi corporation)
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AMERIPATH NEW ENGLAND, INC.
(a Delaware corporation)
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AMERIPATH NORTH CAROLINA, INC.
(a North Carolina corporation)
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AMERIPATH OHIO, INC.
(a Delaware corporation)
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AMERIPATH PAT 5.01(a) CORPORATION
(a Texas not-for-profit corporation)
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AMERIPATH PCC, INC.
(an Ohio corporation)
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AMERIPATH PHILADELPHIA, INC.
(a New Jersey corporation)
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AMERIPATH SC, INC.
(a South Carolina corporation)
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AMERIPATH SEVERANCE 5.01(a) CORPORATION
(a Texas not-for-profit corporation)
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AMERIPATH YOUNGSTOWN LABS, INC.
(an Ohio corporation)
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AMERIPATH YOUNGSTOWN, INC.
(an Ohio corporation)
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ANATOMIC PATHOLOGY SERVICES, INC.
(an Oklahoma corporation)
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ARIZONA PATHOLOGY GROUP, INC.
(an Arizona corporation)
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ARLINGTON PATHOLOGY ASSOCIATION 5.01(a) CORPORATION
(a Texas not-for-profit corporation)
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CPA I, INC.
(a Tennessee corporation)
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CPA II, INC.
(a Tennessee corporation)
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DERMATOPATHOLOGY SERVICES, INC.
(an Alabama corporation)
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DFW 5.01(a) CORPORATION
(a Texas not-for-profit corporation)
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KAILASH B. SHARMA, M.D., INC.
(a Georgia corporation)
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NAPA 5.01(a) CORPORATION
(a Texas not-for-profit corporation)
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OCMULGEE MEDICAL PATHOLOGY ASSOCIATION, INC.
(a Georgia corporation)
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PCA OF COLUMBUS, INC.
(a Tennessee corporation)
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PCA OF DENVER, INC.
(a Tennessee corporation)
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PCA OF LOS GATOS, INC.
(a Tennessee corporation)
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PCA OF MEMPHIS, INC.
(a Tennessee corporation)
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PCA OF NASHVILLE, INC.
(a Tennessee corporation)
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PCA OF ST. LOUIS II, INC.
(a Tennessee corporation)
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PCA SOUTHEAST II, INC.
(a Tennessee corporation)
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PETER G. KLACSMANN, M.D., INC.
(a Georgia corporation)
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SHARON G. DASPIT, M.D., INC.
(a Georgia corporation)
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SHOALS PATHOLOGY ASSOCIATES, INC.
(an Alabama corporation)
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SIMPSON PATHOLOGY 5.01(a) CORPORATION
(a Texas not-for-profit corporation)
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STRIGEN, INC.
(a Utah corporation)
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TID ACQUISITION CORP.
(a Delaware corporation)
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TXAR 5.01(a) CORPORATION
(a Texas not-for-profit corporation)
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By:
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/s/ DAVID L. REDMOND
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Name: David L. Redmond
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Title: Vice President
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23
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AMERIPATH FLORIDA, LLC
(a Delaware limited liability company)
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AMERIPATH INDIANA, LLC
(an Indiana limited liability company)
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AMERIPATH NEW YORK, LLC
(a Delaware limited liability company)
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AMERIPATH PENNSYLVANIA, LLC
(a Pennsylvania limited liability company)
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AMERIPATH WISCONSIN, LLC
(a Wisconsin limited liability company)
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DIAGNOSTIC PATHOLOGY MANAGEMENT
SERVICES, LLC
(an Oklahoma limited liability company)
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O’QUINN MEDICAL PATHOLOGY
ASSOCIATION, LLC
(a Georgia limited liability company)
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By:
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AmeriPath, Inc.,
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its Managing Member
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By:
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/s/ DAVID L. REDMOND
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Name: David L. Redmond
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Title: Executive Vice President and CFO
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24
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AMERIPATH, LLC
(a Delaware limited liability company)
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API NO. 2, LLC
(a Delaware limited liability company)
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ROCKY MOUNTAIN PATHOLOGY, L.L.C.
(a Utah limited liability company)
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By:
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/s/ DAVID L. REDMOND
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Name: David L. Redmond
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Title: Sole Manager
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25
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REGIONAL PATHOLOGY CONSULTANTS, LLC
(a Utah limited liability company)
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By:
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Strigen, Inc.,
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its Managing Member
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By:
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/s/ DAVID L. REDMOND
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Name: David L. Redmond
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Title: Vice President
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26
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AMERIPATH TEXAS, LP
(a Delaware limited partnership)
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By:
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AmeriPath, LLC,
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its General Partner
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By:
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/s/ DAVID L. REDMOND
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Name: David L. Redmond
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Title: Sole Manager
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27
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COLUMBUS PATHOLOGY ASSOCIATES
(a Mississippi general partnership)
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By:
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CPA I, Inc.,
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its general partner
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By:
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/s/ DAVID L. REDMOND
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Name: David L. Redmond
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Title: Executive Vice President and CFO
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28
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NUCLEAR MEDICINE AND PATHOLOGY ASSOCIATES
(a Georgia general partnership)
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By:
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Peter G. Klacsmann, M.D., Inc.,
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its general partner
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By:
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/s/ DAVID L. REDMOND
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Name: David L. Redmond
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Title: Vice President
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29
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The foregoing Registration Rights Agreement
is hereby confirmed and accepted as of the date first above written.
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CREDIT SUISSE FIRST BOSTON LLC,
as representative for the Initial Purchasers,
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By:
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/s/ CRAIG CALLEN
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Name: Craig Callen
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Title: Managing Director
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30
ANNEX A
Each broker-dealer that receives Exchange Securities for its own
account pursuant to the Exchange Offer must acknowledge that it will deliver a
prospectus in connection with any resale of such Exchange Securities. The Letter of Transmittal states that by so
acknowledging and by delivering a prospectus, a broker-dealer will not be
deemed to admit that it is an “underwriter” within the meaning of the
Securities Act. This Prospectus, as it
may be amended or supplemented from time to time, may be used by a broker-dealer
in connection with resales of Exchange Securities received in exchange for
Initial Securities where such Initial Securities were acquired by such
broker-dealer as a result of market-making activities or other trading
activities. The Company has agreed
that, for a period of 180 days after the Expiration Date (as defined herein),
it will make this Prospectus available to any broker-dealer for use in
connection with any such resale. See
“Plan of Distribution.”
ANNEX B
Each broker-dealer that receives Exchange
Securities for its own account in exchange for Initial Securities, where such
Initial Securities were acquired by such broker-dealer as a result of
market-making activities or other trading activities, must acknowledge that it
will deliver a prospectus in connection with any resale of such Exchange
Securities. See “Plan of Distribution.”
ANNEX C
PLAN OF DISTRIBUTION
Each broker-dealer that receives Exchange
Securities for its own account pursuant to the Exchange Offer must acknowledge that
it will deliver a prospectus in connection with any resale of such Exchange
Securities. This Prospectus, as it may
be amended or supplemented from time to time, may be used by a broker-dealer in
connection with resales of Exchange Securities received in exchange for Initial
Securities where such Initial Securities were acquired as a result of
market-making activities or other trading activities. The Company has agreed that, for a period of 180 days after the Expiration
Date, it will make this prospectus, as amended or supplemented, available to
any broker-dealer for use in connection with any such resale. In addition, until , 200 , all dealers effecting transactions in the Exchange
Securities may be required to deliver a prospectus.(1)
The Company will not receive any proceeds
from any sale of Exchange Securities by broker-dealers. Exchange Securities received by
broker-dealers for their own account pursuant to the Exchange Offer may be sold
from time to time in one or more transactions in the over-the-counter market,
in negotiated transactions, through the writing of options on the Exchange
Securities or a combination of such methods of resale, at market prices
prevailing at the time of resale, at prices related to such prevailing market
prices or negotiated prices. Any such
resale may be made directly to purchasers or to or through brokers or dealers
who may receive compensation in the form of commissions or concessions from any
such broker-dealer or the purchasers of any such Exchange Securities. Any broker-dealer that resells Exchange
Securities that were received by it for its own account pursuant to the
Exchange Offer and any broker or dealer that participates in a distribution of
such Exchange Securities may be deemed to be an “underwriter” within the
meaning of the Securities Act and any profit on any such resale of Exchange
Securities and any commission or concessions received by any such persons may
be deemed to be underwriting compensation under the Securities Act. The Letter of Transmittal states that, by
acknowledging that it will deliver and by delivering a prospectus, a
broker-dealer will not be deemed to admit that it is an “underwriter” within
the meaning of the Securities Act.
For a period of 180 days after the Expiration
Date the Company will promptly send additional copies of this Prospectus and
any amendment or supplement to this Prospectus to any broker-dealer that
requests such documents in the Letter of Transmittal. The Company has agreed to pay all expenses incident to the Exchange
Offer (including the expenses of one counsel for the Holders of the Securities)
other than commissions or concessions of any brokers or dealers and will
indemnify the Holders of the Securities (including any broker-dealers) against
certain liabilities, including liabilities under the Securities Act.
In
addition, the legend required by Item 502(e) of Regulation S-K will appear
on the inside front cover page of the Exchange Offer prospectus below the Table
of Contents.
o CHECK HERE IF YOU ARE A
BROKER-DEALER AND WISH TO RECEIVE 10 ADDITIONAL COPIES OF THE PROSPECTUS AND 10
COPIES OF ANY AMENDMENTS OR SUPPLEMENTS THERETO.
Name:
Address:
If the undersigned is not a broker-dealer,
the undersigned represents that it is not engaged in, and does not intend to
engage in, a distribution of Exchange Securities. If the undersigned is a broker-dealer that will receive Exchange
Securities for its own account in exchange for Initial Securities that were
acquired as a result of market-making activities or other trading activities,
it acknowledges that it will deliver a prospectus in connection with any resale
of such Exchange Securities; however, by so acknowledging and by delivering a
prospectus, the undersigned will not be deemed to admit that it is an “underwriter”
within the meaning of the Securities Act.
Subsidiary Guarantors
Name of Entity
3-Gen Diagnostic Laboratories, Inc.
AmeriPath
5.01(a) Corporation
AmeriPath
Cincinnati, Inc.
AmeriPath
Cleveland, Inc.
AmeriPath Consolidated Labs, Inc.
AmeriPath
Florida, LLC
AmeriPath
Indiana, LLC
AmeriPath
Kentucky, Inc.
AmeriPath
Lubbock 5.01(a) Corporation
AmeriPath
Marketing USA, Inc.
AmeriPath
Michigan, Inc.
AmeriPath
Mississippi, Inc.
AmeriPath
New England, Inc.
AmeriPath
New York, LLC
AmeriPath
North Carolina, Inc.
AmeriPath
Ohio, Inc.
AmeriPath
PAT 5.01(a) Corporation
AmeriPath
PCC, Inc.
AmeriPath
Pennsylvania, LLC
AmeriPath
Philadelphia, Inc.
Name of Entity
AmeriPath
SC, Inc.
AmeriPath Severance 5.01(a) Corporation
AmeriPath
Texas, LP
AmeriPath
Youngstown Labs, Inc.
AmeriPath
Youngstown, Inc.
AmeriPath,
LLC
AmeriPath
Wisconsin, LLC
Anatomic
Pathology Services, Inc.
API
No. 2., LLC
Arizona Pathology Group, Inc.
Arlington
Pathology Association 5.01(a) Corporation
Columbus
Pathology Associates
CPA
I, Inc.
CPA
II, Inc.
Dermatopathology
Services, Inc.
DFW
5.01(a) Corporation
Diagnostic
Pathology Management Services, LLC
Kailash B. Sharma, M.D., Inc.
NAPA
5.01(a) Corporation
Nuclear Medicine and Pathology Associates
Ocmulgee
Medical Pathology Association, Inc.
O’Quinn Medical Pathology Association, LLC
Name of Entity
PCA
of Columbus, Inc.
PCA
of Denver, Inc.
PCA
of Los Gatos, Inc.
PCA
of Memphis, Inc.
PCA
of Nashville, Inc.
PCA
of St. Louis II, Inc.
PCA
Southeast II, Inc.
Peter G. Klacsmann, M.D., Inc.
Regional
Pathology Consultants, LLC
Rocky Mountain Pathology, L.L.C.
Sharon G. Daspit, M.D., Inc.
Shoals
Pathology Associates, Inc.
Simpson
Pathology 5.01(a) Corporation
Strigen, Inc.
TID
Acquisition Corporation
TXAR
5.01(a) Corporation