As filed with the Securities and Exchange Commission on May 31, 2001
Registration No. 333-60632
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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Amendment No. 2
to
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
Laboratory Corporation Of America Holdings
(Exact Name of Registrant as Specified in Its Charter)
Delaware 358 South Main Street 13-3757370
(State or other jurisdiction of Burlington, North Carolina 27215 (I.R.S. Employer
incorporation or organization) (336) 229-1127 Identification Number)
(Address, including zip code, and
telephone number, including area
code, of Registrant's principal
executive offices)
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Bradford T. Smith
Executive Vice President, General Counsel,
Corporate Compliance Officer and Secretary
Laboratory Corporation of America Holdings
358 South Main Street
Burlington, North Carolina 27215
(336) 229-1127
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
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Copies to:
DEANNA L. KIRKPATRICK ALLISON R. SCHNEIROV
Davis Polk & Wardwell MARK C. SMITH
450 Lexington Avenue Skadden, Arps, Slate, Meagher &
New York, New York 10017 Flom LLP
(212) 450-4000 Four Times Square
New York, New York 10036
(212) 735-3000
Approximate date of commencement of proposed sale to the public: As soon as
practicable after the effective date of the Registration Statement.
If any of the securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [_]
If any of the securities being registered on this Form are being offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or
interest reinvestment plans, check the following box. [_]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following
box and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [_]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [_]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [_]
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The Registrant hereby amends this Registration Statement on such date or
dates as may be necessary to delay its effective date until the Registrant
shall file a further amendment which specifically states that this Registration
Statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933 or until the Registration Statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
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++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
+The information in this prospectus is not complete and may be changed. We may +
+not sell these securities until the registration statement filed with the +
+Securities and Exchange Commission is effective. This prospectus is not an +
+offer to sell these securities and it is not soliciting an offer to buy these +
+securities in any state where the offer or sale is not permitted. +
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
SUBJECT TO COMPLETION, DATED MAY 31, 2001
5,500,000 Shares
Laboratory Corporation of America Holdings
Common Stock
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The shares of common stock are being sold by the selling stockholder. We will
not receive any of the proceeds from the shares of common stock sold by the
selling stockholder. We have declared a 2 for 1 stock split in the form of a
stock dividend which is payable on June 11, 2001 to stockholders of record on
June 4, 2001. As a result purchasers of shares in this offering who continue to
hold the shares on June 11, 2001 will receive an additional share of common
stock for each share purchased in this offering. None of the share or per share
information in this prospectus has been adjusted to reflect this 2001 stock
split.
Our common stock is listed on The New York Stock Exchange under the symbol
"LH." The last reported sale price on May 30, 2001 was $141.016 per share.
The underwriters have an option to purchase a maximum of 500,000 additional
shares from the selling stockholder to cover over-allotments of shares.
Underwriting
Price Discounts Proceeds to
to and Selling
Public Commissions Stockholder
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Per Share...................................... $ $ $
Total.......................................... $ $ $
Delivery of the shares of common stock will be made on or about , 2001.
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities or determined if
this prospectus is truthful or complete. Any representation to the contrary is
a criminal offense.
Joint Book-Running Managers
Credit Suisse First Boston UBS Warburg
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Goldman, Sachs & Co.
Merrill Lynch & Co.
U.S. Bancorp Piper Jaffray
The date of this prospectus is , 2001.
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TABLE OF CONTENTS
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Page
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Prospectus Summary......................................................... 1
Price Range of Common Stock and Dividends.................................. 5
Use of Proceeds............................................................ 5
Selling Stockholder........................................................ 6
Underwriting............................................................... 7
Notice to Canadian Residents............................................... 10
Legal Matters.............................................................. 11
Experts.................................................................... 11
Where You Can Find More Information........................................ 12
You should rely only on the information contained in this document or to
which we have referred you. We have not authorized anyone to provide you with
information that is different. This document may only be used where it is legal
to sell these securities. The information in this document may only be accurate
on the date of this document.
i
PROSPECTUS SUMMARY
The following summary is qualified in its entirety by the more detailed
information included elsewhere or incorporated by reference in this prospectus.
Because this is a summary, it may not contain all the information that may be
important to you. You should read the entire prospectus, as well as the
information incorporated by reference, before making an investment decision.
LabCorp
We are the second largest independent clinical laboratory company in the
United States, based on 2000 net revenues. Through a national network of
laboratories, we offer more than 4,000 different clinical laboratory tests
which are used by the medical profession in routine testing, patient diagnosis,
and in the monitoring and treatment of disease. We have developed specialty and
niche businesses based on certain types of specialized testing capabilities and
client requirements, such as HIV genotyping and phenotyping, diagnostic
genetics, clinical research trials and oncology testing.
Since our founding in 1971, we have grown into a network of 24 major
laboratories and approximately 1,200 service sites, consisting of branches,
patient service centers and STAT laboratories, which are laboratories that have
the ability to perform certain routine tests quickly and report the results to
the physician immediately. With over 18,000 employees, we processed tests on
more than 260,000 patient specimens daily in 2000 and provided clinical
laboratory testing services to clients in 50 states. Our clients include
physicians, hospitals, HMOs and other managed care organizations, governmental
agencies, large employers, and other independent clinical laboratories that do
not have the breadth of our testing capabilities. Several hundred of our 4,000
tests are frequently used in general patient care by physicians to establish or
support a diagnosis, to monitor treatment, or to search for an otherwise
undiagnosed condition. The most frequently requested of these routine tests
include blood chemistry analyses, urinalyses, blood cell counts, pap smears and
HIV tests. We perform this core group of routine tests, which constitutes a
majority of the testing conducted, in each of our major laboratories using
sophisticated and computerized instruments, with most results reported within
24 hours.
We continually seek new and improved technologies for early diagnosis. For
example, our Center for Molecular Biology and Pathology is a leader in
molecular diagnostics and polymerase chain reaction, or PCR, technologies which
are often able to provide earlier and more reliable information regarding HIV,
genetic diseases, cancer and many other viral and bacterial diseases. We
believe these technologies may represent a significant savings to managed care
organizations by increasing the detection of early stage (treatable) diseases.
In August of 2000 we acquired Los Angeles-based National Genetics Institute,
Inc., a leader in the development of PCR assays for Hepatitis C. In April 2001,
we acquired Path Lab Holdings, a regional esoteric lab company serving the New
England area. We believe this acquisition will leverage our expertise in the
area of esoteric testing and will enable us to expand our presence in New
England. As part of our strategic approach, we plan to continue to evaluate
appropriate acquisition candidates.
One of our primary growth strategies is the continued expansion of our
specialty and niche businesses. In general, the specialty and niche businesses
are designed to serve two market segments: (i) markets which are not served by
the routine clinical testing laboratory and therefore are often subject to less
stringent regulatory and reimbursement constraints; and (ii) markets which are
served by the routine testing laboratory and offer the possibility of adding
related services from the same supplier.
Another of our primary growth strategies is to develop an increasing number
of hospital and other provider alliances. These alliances can take several
different forms, including laboratory technical support (management) contracts,
reference agreements and cooperative testing arrangements. We have and will
continue to focus on developing cooperative testing relationships that
capitalize on hospitals' ability to perform rapid response testing and our
ability to provide high quality routine and esoteric testing.
1
Relationship With Roche
Stockholder Agreement
In 1995, we and affiliates of the selling stockholder entered into a
stockholder agreement. The stockholder agreement contains certain provisions
relating to (i) the governance of the Company, including, but not limited to,
the composition of the board of directors, (ii) the issuance, sale, and
transfer of our equity securities by us and by the selling stockholder, and
(iii) registration rights we granted to the selling stockholder and its
affiliates with respect to our equity securities. Except as described below,
all of the selling stockholder's rights with respect to the stockholder
agreement will terminate as a result of this offering which will cause the
selling stockholder's ownership interest in our common stock to fall to
approximately 16.7% (approximately 15.3% if the underwriters' over-allotment
option is exercised).
The selling stockholder currently has the right to designate three directors
for nomination to the board of directors. Following the offering, it will have
the right to designate one director. Currently, the board of directors is
comprised of seven members.
The selling stockholder will continue to have demand registration rights and
have the benefits of various covenants of the Company with respect to transfers
made by the selling stockholder pursuant to Rule 144A under the Securities Act
of 1933.
Credit Agreement
Under the terms of our credit agreement dated March 31, 1997, among us, the
banks named therein and Credit Suisse First Boston, as Administrative Agent, as
amended to date, the facility fee and interest rates will increase if the
selling stockholder's ownership interest in our common stock falls below 25%.
As a result of this offering, the effective interest rate under the credit
agreement will increase by approximately 100 basis points. As a result, based
on current debt levels, this will increase payments under the credit agreement
by approximately $1.2 million in the third quarter. To partially compensate us
for this increase, the selling stockholder has agreed to reimburse us $1.2
million. In addition, while there can be no assurance that we will be
successful, we plan to refinance or renegotiate the credit agreement later this
year to, among other things, reduce our cost of borrowing.
Recent Developments
Stock Split
On May 24, 2001, our stockholders approved a proposed amendment to our
certificate of incorporation to increase the authorized number of shares of our
common stock from 52 million to 265 million.
We have declared a 2 for 1 stock split in the form of a stock dividend which
is payable on June 11, 2001 to stockholders of record on June 4, 2001. As a
result purchasers of shares in this offering who continue to hold the shares on
June 11, 2001 will receive an additional share of common stock for each share
purchased in this offering. None of the share or per share information in this
prospectus has been adjusted to reflect this stock split.
Our principal executive office is located at 358 South Main Street,
Burlington, North Carolina 27215 and our telephone number at that location is
(336) 229-1127. Our Web site is located at www.labcorp.com. The information
contained on our Web site is not part of this prospectus.
2
The Offering
Common Stock 5,500,000 shares
offered(1)..................
Use of proceeds.......... The Company will not receive any of the
proceeds from thesale of the common stock
offered by the selling stockholder.
NYSE symbol.............. LH
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(1) If the underwriters' over-allotment option is exercised in full, the
total number of shares to be offered by the selling stockholder would
be 6,000,000.
3
Summary Consolidated Financial Information
The summary consolidated financial data presented below (1) for each of the
three years in the period ended December 31, 2000 are derived from our
consolidated financial statements, which have been audited by
PricewaterhouseCoopers LLP, independent accountants and (2) as of March 31,
2001 and for the three-month periods ended March 31, 2000 and March 31, 2001
are derived from our unaudited condensed consolidated financial statements. You
should read this table along with our annual report on Form 10-K for our fiscal
year ended December 31, 2000, which contains these audited consolidated
financial statements, and our quarterly report on Form 10-Q for the three
months ended March 31, 2001, which contains these unaudited condensed
consolidated financial statements. Our unaudited condensed consolidated
financial statements include all adjustments, consisting of normal recurring
adjustments, necessary for a fair presentation of our financial condition and
results of operations for the relevant periods and, in the opinion of
management, have been prepared on the same basis as our audited consolidated
financial statements. Results of operations for the three months ended March
31, 2001 are not necessarily indicative of results of operations for the full
year.
Three Months
Ended March
Year Ended December 31, 31,
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1998 1999 2000 2000 2001
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(Dollars in millions, except per share
amounts)
Consolidated Statements of
Operations Data:
Net sales.................... $1,612.6 $1,698.7 $1,919.3 $462.7 $525.4
Gross profit................. 563.4 629.1 766.6 183.5 221.6
Operating income............. 127.6 149.7 245.6(a) 57.4 87.3
Net earnings................. 68.8 65.4 112.1 25.7 43.5
Net earnings available to
common shareholders......... 24.4 15.0 77.5 10.8 43.5
Basic earnings per common
share (b)................... $ 1.95 $ 1.18 $ 3.29 $ 0.85 $ 1.26
Diluted earnings per common
share (b)................... $ 1.95 $ 1.16 $ 3.22 $ 0.75 $ 1.24
Other Financial Data:
Cash flows provided by oper-
ating activities............ $ 125.1 $ 180.5 $ 246.7 $ 48.5 $ 64.5
Cash flows used for investing
activities.................. (68.6) (77.0) (150.0) (15.2) (15.6)
Cash flows used for financing
activities.................. (57.1) (85.8) (87.9) (32.5) (30.1)
As of
March 31, 2001
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Consolidated Balance Sheet Data:
Cash and cash equivalents....................................... $ 66.8
Total assets.................................................... 1,703.4
Total debt...................................................... 445.5
Total shareholders' equity...................................... 923.7
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(a) In the fourth quarter of 2000, we recorded a $4.5 million restructuring
charge relating to the closing of our Memphis drug testing facility.
(b) Does not reflect 2001 stock split.
4
PRICE RANGE OF COMMON STOCK AND DIVIDENDS
Our common stock is listed on the New York Stock Exchange under the symbol
"LH."
The table below sets forth for the calendar periods indicated the high and
low intraday sales prices for our common stock reported on the NYSE Composite
Tape. We have declared a 2 for 1 stock split in the form of a stock dividend
which is payable on June 11, 2001 to stockholders of record on June 4, 2001. As
a result purchasers of shares in this offering who continue to hold the shares
on June 11, 2001 will receive an additional share of common stock for each
share purchased in this offering. The prices set forth below do not reflect
adjustment for this 2001 stock split.
High Low
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1999
1st Quarter.......................................... $ 23.125 $ 12.500
2nd Quarter.......................................... 29.375 16.875
3rd Quarter.......................................... 32.500 22.500
4th Quarter.......................................... 38.750 24.375
2000
1st Quarter.......................................... 46.875 31.250
2nd Quarter.......................................... 81.000 39.375
3rd Quarter.......................................... 132.500 76.250
4th Quarter.......................................... 183.000 108.250
2001
1st Quarter.......................................... 175.000 99.500
2nd Quarter (through May 30, 2001)................... 151.125 112.906
During May 2000, our stockholders approved a 1-for-10 reverse stock split.
The sales prices reported above reflect such reverse stock split. On April 18,
2001 there were 671 holders of record of our common stock.
In 1994, we discontinued our dividend payments for the foreseeable future in
order to increase our flexibility with respect to our acquisition strategy. In
addition, our revolving credit facility places certain restrictions on the
payment of dividends.
USE OF PROCEEDS
We will not receive any of the proceeds from the sale of the common stock
offered by the selling stockholder.
5
SELLING STOCKHOLDER
The selling stockholder intends to dispose of shares of common stock as set
forth under "Underwriting" below. Roche Holdings, Inc. owns 11,352,537 shares
of common stock (approximately 32.4% of the common stock outstanding).
Following the offering, its ownership of our common stock will be approximately
16.7% (approximately 15.3% if the over-allotment option is exercised in full).
The following table sets forth certain information regarding the beneficial
ownership of common stock by the selling stockholder and as adjusted to give
effect to the sale of the shares covered by this prospectus.
Shares Beneficially Owned
Shares After Offering
Beneficially --------------------------
Name of Selling Owned Prior to Number of Shares Number of
Stockholder Offering Being Offered Shares Percent
--------------- -------------- ---------------- -------------- -----------
Roche Holdings, Inc. ... 11,352,537 5,500,000(1) 5,852,537 16.7%
One Commerce Center,
Suite 1050
Wilmington, Delaware
19801
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(1) Does not include the over-allotment shares. If the underwriters exercise
their over-allotment option in full, the selling stockholder will
beneficially own 5,352,537 shares or approximately 15.3% after the
offering.
6
UNDERWRITING
Under the terms and subject to the conditions contained in an underwriting
agreement dated , 2001, the selling stockholder has agreed to sell to the
underwriters named below, for whom Credit Suisse First Boston Corporation and
UBS Warburg LLC are acting as representatives, the following respective numbers
of shares of common stock:
Number
Underwriter of Shares
----------- ---------
Credit Suisse First Boston Corporation...........................
UBS Warburg LLC..................................................
Goldman, Sachs & Co. ............................................
Merrill Lynch, Pierce, Fenner & Smith
Incorporated............................................
U.S. Bancorp Piper Jaffray Inc. .................................
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Total.......................................................... 5,500,000
=========
The underwriting agreement provides that the underwriters are obligated to
purchase all the shares of common stock in the offering if any are purchased,
other than those shares covered by the over-allotment option described below.
The underwriting agreement also provides that if an underwriter defaults, the
purchase commitments of non-defaulting underwriters may be increased or the
offering may be terminated.
The selling stockholder has granted to the underwriters a 30-day option to
purchase on a pro rata basis up to 500,000 additional shares at the initial
public offering price less the underwriting discounts and commissions. The
option may be exercised only to cover any over-allotments of common stock.
The underwriters propose to offer the shares of common stock initially at
the public offering price on the cover page of this prospectus and to selling
group members at that price, less a selling concession of $ per share. The
underwriters and selling group members may allow a discount of $ per share on
sales to other broker/dealers. After the initial public offering, the
underwriters may change the public offering price and concession and discount
to broker/dealers.
The following table summarizes the compensation and estimated expenses we
and the selling stockholder will pay:
Per Share Total
----------------------------- -----------------------------
Without With Without With
Over-allotment Over-allotment Over-allotment Over-allotment
-------------- -------------- -------------- --------------
Expenses payable by us.. $ $ $ $
Underwriting Discounts
and Commissions paid by
selling stockholder....
We have agreed that we will not offer, sell, contract to sell, pledge or
otherwise dispose of, directly or indirectly or file with the Securities and
Exchange Commission a registration statement under the Securities Act relating
to, any shares of our common stock or securities convertible into or
exchangeable or exercisable for any shares of our common stock, or publicly
disclose the intention to make any such offer, sale, pledge, disposition or
filing, without the prior written consent of Credit Suisse First Boston
Corporation and UBS Warburg LLC for a period of 90 days after the date of this
prospectus, except grants of employee stock options pursuant to the terms of
our employee stock option plans in effect on the date hereof, issuances of
securities pursuant to the exercise of such options or the exercise of any
other employee stock options outstanding on the date hereof or issuances of
securities pursuant to our dividend reinvestment plan.
7
The selling stockholder has agreed that it will not offer, sell, contract to
sell, pledge or otherwise dispose of, directly or indirectly, any shares of our
common stock or securities convertible into or exchangeable or exercisable for
any shares of our common stock, enter into a transaction which would have the
same effect, or enter into any swap, hedge or other arrangement that transfers,
in whole or in part, any of the economic consequences of ownership of our
common stock, whether any of these transactions are to be settled by delivery
of our common stock or other securities, in cash or otherwise, or publicly
disclose the intention to make any offer, sale, pledge or disposition, or to
enter into any transaction, swap, hedge or other arrangement, without, in each
case, the prior written consent of Credit Suisse First Boston Corporation and
UBS Warburg LLC for a period of 90 days after the date of this prospectus
provided, however, the foregoing will not apply to the 500,000 shares of common
stock owned by the selling stockholder that are covered by the underwriters'
over-allotment option, if such option is not exercised.
We and the selling stockholder have agreed to indemnify the underwriters
against liabilities under the Securities Act, or contribute to payments that
the underwriters may be required to make in that respect.
In connection with the offering the underwriters may engage in stabilizing
transactions, over-allotment transactions, syndicate covering transactions and
penalty bids in accordance with Regulation M under the Exchange Act.
. Stabilizing transactions permit bids to purchase the underlying security
so long as the stabilizing bids do not exceed a specified maximum.
. Over-allotment involves sales by the underwriters of shares in excess of
the number of shares the underwriters are obligated to purchase, which
creates a syndicate short position. The short position may be either a
covered short position or a naked short position. In a covered short
position, the number of shares over-allotted by the underwriters is not
greater than the number of shares that they may purchase in the over-
allotment option. In a naked short position, the number of shares
involved is greater than the number of shares in the over-allotment
option. The underwriters may close out any short position by either
exercising their over-allotment option and/or purchasing shares in the
open market.
. Syndicate covering transactions involve purchases of the common stock in
the open market after the distribution has been completed in order to
cover syndicate short positions. In determining the source of shares to
close out the short position, the underwriters will consider, among
other things, the price of shares available for purchase in the open
market as compared to the price at which they may purchase shares
through the over-allotment option. If the underwriters sell more shares
than could be covered by the over-allotment option, a naked short
position, the position can only be closed out by buying shares in the
open market. A naked short position is more likely to be created if the
underwriters are concerned that there could be downward pressure on the
price of the shares in the open market after pricing that could
adversely affect investors who purchase in the offering.
. Penalty bids permit the representatives to reclaim a selling concession
from a syndicate member when the common stock originally sold by the
syndicate member is purchased in a stabilizing or syndicate covering
transaction to cover syndicate short positions.
These stabilizing transactions, syndicate covering transactions and penalty
bids may have the effect of raising or maintaining the market price of our
common stock or preventing or retarding a decline in the market price of the
common stock. As a result the price of the common stock may be higher than the
price that might otherwise exist in the open market. These transactions may be
effected on the New York Stock Exchange or otherwise and, if commenced, may be
discontinued at any time.
A prospectus in electronic format may be made available on a web site
maintained by one or more of the underwriters participating in this offering.
The underwriters may agree to allocate a number of shares for sale to their
online brokerage account holders. Internet distributions will be allocated by
the underwriters that will
8
make internet distributions on the same basis as other allocations. Credit
Suisse First Boston Corporation may effect an on-line distribution through its
affiliate, CSFBdirect, Inc., an on-line broker dealer, as a selling group
member. Merrill Lynch, Pierce, Fenner & Smith Incorporated, one of the co-
managers, uses electronic systems in connection with the offer, sale and
distribution of certain securities and may be using such systems for their
allocated shares.
9
NOTICE TO CANADIAN RESIDENTS
Resale Restrictions
The distribution of the common stock in Canada is being made only on a
private placement basis exempt from the requirement that we and the selling
stockholder prepare and file a prospectus with the securities regulatory
authorities in each province where trades of common stock are made. Any resale
of the common stock in Canada must be made under applicable securities laws
which will vary depending on the relevant jurisdiction, and which may require
resales to be made under available statutory exemptions or under a
discretionary exemption granted by the applicable Canadian securities
regulatory authority. Purchasers are advised to seek legal advice prior to any
resale of the common stock.
Representations of Purchasers
By purchasing common stock in Canada and accepting a purchase confirmation a
purchaser is representing to us, the selling stockholder and the dealer from
whom the purchase confirmation is received that
. the purchaser is entitled under applicable provincial securities laws to
purchase the common stock without the benefit of a prospectus qualified
under those securities laws,
. where required by law, that the purchaser is purchasing as principal and
not as agent, and
. the purchaser has reviewed the text above under Resale Restrictions.
Rights of Action (Ontario Purchasers)
The securities being offered are those of a foreign issuer and Ontario
purchasers will not receive the contractual right of action by Ontario
securities law. As a result, Ontario purchasers must rely on other remedies
that may be available, including common law rights of action for damages or
rescission or rights of action under the civil liability provisions of the U.S.
federal securities laws.
Enforcement of Legal Rights
All of the issuer's directors and officers as well as the experts named
herein and the selling stockholders may be located outside of Canada and, as a
result, it may not be possible for Canadian purchasers to effect service of
process within Canada upon the issuer or such persons. All or a substantial
portion of the assets of the issuer and such persons may be located outside of
Canada and, as a result, it may not be possible to satisfy a judgment against
the issuer or such persons in Canada or to enforce a judgment obtained in
Canadian courts against such issuer or persons outside of Canada.
Notice to British Columbia Residents
A purchaser of common stock to whom the Securities Act (British Columbia)
applies is advised that such purchaser is required to file with the British
Columbia Securities Commission a report within ten days of the sale of any
common stock acquired by the purchaser pursuant to this offering. The report
must be in the form attached to British Columbia Securities Commission Blanket
Order BOR #95/17, a copy of which may be obtained from us. Only one report must
be filed for common stock acquired on the same date and under the same
prospectus exemption.
Taxation and Eligibility for Investment
Canadian purchasers of common stock should consult their own legal and tax
advisors with respect to the tax consequences of an investment in the common
stock in their particular circumstances and about the eligibility of the common
stock for investment by the purchaser under relevant Canadian legislation.
10
LEGAL MATTERS
Certain legal matters with respect to the validity of the common stock
offered hereby will be passed upon on our behalf by Bradford T. Smith,
Executive Vice President, General Counsel, Corporate Compliance Officer and
Secretary. Mr. Smith is a full-time employee and an officer of Laboratory
Corporation of America Holdings and beneficially owns 53,197 shares of common
stock. Certain other legal matters will be passed upon on our behalf and on
behalf of the selling stockholder by Davis Polk & Wardwell. The underwriters
have been represented by Skadden, Arps, Slate, Meagher & Flom LLP, New York,
New York.
EXPERTS
The consolidated financial statements of Laboratory Corporation of America
Holdings as of December 31, 2000 and 1999, and for each of the three years in
the period ended December 31, 2000, incorporated in this prospectus by
reference to the Annual Report on Form 10-K for the year ended December 31,
2000, have been so incorporated in reliance on the report of
PricewaterhouseCoopers LLP, independent accountants, given on the authority of
said firm as experts in accounting and auditing.
11
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and special reports, proxy statements,
registration statements and other information with the SEC. Our SEC filings are
available to the public over the Internet at the SEC's web site at
http://www.sec.gov. You may read and copy any document we file at the SEC's
public reference rooms at 7 World Trade Center, New York, New York 10048;
Citicorp Center, 500 West Madison Street, Suite 1400, Chicago, Illinois 60661;
and 450 Fifth Street, N.W. Washington, D.C. Please call the SEC at 1-800-SEC-
0330 for further information on the public reference rooms.
We have filed with the SEC a registration statement under the Securities Act
of 1933 to register the common stock offered by this prospectus. This
prospectus is only part of the registration statement and does not contain all
of the information in the registration statement and its exhibits because
certain parts are allowed to be omitted by SEC rules. Statements in this
prospectus about documents filed as an exhibit to the registration statement or
otherwise filed with the SEC are only summary statements and may not contain
all the information that may be important to you. For further information about
us, and the common stock offered under this prospectus, you should read the
registration statement, including its exhibits and the documents incorporated
into it by reference.
The SEC allows us to incorporate by reference the information we file with
them, which means that we can disclose important information to you by
referring you to those documents. The information incorporated by reference is
an important part of this prospectus. Information that we file later with the
SEC will automatically update and supersede this information. We incorporated
by reference the documents listed below and any future filings made with the
SEC under Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of
1934, as amended (the "Exchange Act"), until all of the common stock offered
under this prospectus is sold.
1. Annual Report on Form 10-K for the fiscal year ended December 31,
2000;
2. Quarterly Report on Form 10-Q for the quarter ended March 31, 2001;
3. All reports filed pursuant to Section 13 or 15(d) of the Exchange
Act on or after December 31, 2000; and
4. Registration Statement on Form 8-B filed July 1, 1994 as amended on
April 27, 1995.
You should rely only on the information incorporated by reference or
provided in this prospectus. We have not authorized anyone else to provide you
with different information. We are not making an offer of common stock in any
state where the offer is not permitted. You should not assume that the
information in this prospectus is accurate as of any date other than the date
on the front of this prospectus.
You may request a copy of these filings at no cost, by contacting us at the
following address:
Laboratory Corporation of America Holdings
358 South Main Street
Burlington, North Carolina 27215
(336) 229-1127
Attention: Bradford T. Smith
12
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
Securities and Exchange Commission registration fee............. $202,388
NASD filing fee................................................. 30,500
Legal fees and expenses......................................... 350,000
Accounting fees and expenses.................................... 45,000
Roadshow expenses............................................... 140,000
Miscellaneous................................................... 32,112
--------
Total......................................................... $800,000
========
Except for the SEC registration fee and NASD filing fee, all of the
foregoing are estimates.
ITEM 15. INDEMNIFICATION OF OFFICERS AND DIRECTORS
As authorized by Section 145 of the General Corporation Law of the State of
Delaware ("Delaware Corporation Law"), each director and officer of the Company
may be indemnified by the Company against expenses (including attorney's fees,
judgments, fines, and amounts paid in settlement) actually and reasonably
incurred in connection with the defense or settlement of any threatened,
pending, or completed legal proceedings in which he/she is involved by reason
of the fact that he/she is or was a director or officer of the Company;
provided that he/she acted in good faith and in a manner that he/she reasonably
believed to be in or not opposed to the best interest of the Company; and, with
respect to any criminal action or proceeding, that he/she had no reasonable
cause to believe that his/her conduct was unlawful. If the legal proceeding,
however, is by or in the right of the Company, the director or officer may not
be indemnified in respect of any claim, issue, or matter as to which he/she
shall have adjudged to be liable for negligence or misconduct in the
performance of his or her duty to the Company unless a court determines
otherwise.
Article Sixth of the Certificate of Incorporation of the Company provides
that no director of the Company shall be personally liable to the Company or
its stockholders for monetary damages for any breach of his or her fiduciary
duty as director; provided, however, that such clause shall not apply to any
liability of a director (i) for any breach of such director's duty of loyalty
to the Company or its stockholders, (ii) for acts or omissions not in good
faith or which involve intentional misconduct or a knowing violation of law,
(iii) pursuant to Section 174 of the Delaware Corporation Law or (iv) for any
transaction from which the director derived an improper personal benefit. In
addition, the provisions of Article VII of the Company's By-laws provide that
the Company shall indemnify persons entitled to be indemnified to the fullest
extent permitted by the Delaware Corporation Law.
The Company maintains policies of officers' and directors' liability
insurance in respect of acts or omissions of current and former officers and
directors of the Company, its subsidiaries, and "constituent" companies that
have been merged with the Company.
ITEM 16. EXHIBITS
Exhibit
Number Description of Exhibit
------- ----------------------
1.1 Form of Underwriting Agreement**
5.1 Opinion of Bradford T. Smith, Esquire*
23.1 Consent of Bradford T. Smith, Esquire (included in Exhibit 5.1)
23.2 Consent of PricewaterhouseCoopers LLP**
24.1 Power of Attorney*
- --------
*Previously filed
**Filed herewith
II-1
ITEM 17. UNDERTAKINGS
(a) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 that is incorporated by reference in the
Registration Statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(b) Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the Registrant pursuant to the foregoing provisions, or otherwise, the
Registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the
Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
Registrant of expenses incurred or paid by a director, officer or controlling
person of the Registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the Registrant will, unless in
the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the Act and
will be governed by the final adjudication of such issue.
(c) The undersigned registrant hereby undertakes that:
(1) For purposes of determining any liability under the Securities Act
of 1933, the information omitted from the form of prospectus filed as part
of this Registration Statement in reliance upon Rule 430A and contained in
a form of prospectus filed by the Registrant pursuant to Rule 424(b)(1) or
(4) or 497(h) under the Securities Act shall be deemed to be part of this
Registration Statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the Securities
Act of 1933, each post-effective amendment that contains a form of
prospectus shall be deemed to be a new Registration Statement relating to
the securities offered therein, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering thereof.
II-2
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this amendment to the
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Burlington, State of North Carolina, on May 31,
2001.
Laboratory Corporation of America
Holdings
/s/ Bradford T. Smith, Esq.
By: _________________________________
Name: Bradford T. Smith, Esq.
Title: Executive Vice President,
General Counsel, Corporate
Compliance Officer and
Secretary
Pursuant to the requirements of the Securities Act of 1933, this amendment
to the Registration Statement has been signed by the following persons in the
capacities and on the dates indicated:
Signature Title Date
--------- ----- ----
* Chairman of the Board, May 31, 2001
___________________________________________ President, Chief
Thomas P. Mac Mahon Executive Officer and
Director
* Executive Vice President, May 31, 2001
___________________________________________ Chief Financial Officer
Wesley R. Elingburg and Treasurer
Director May 31, 2001
___________________________________________
Jean-Luc Belingard
* Director May 31, 2001
___________________________________________
Wendy E. Lane
* Director May 31, 2001
___________________________________________
Robert E. Mittelstaedt, Jr.
* Director May 31, 2001
___________________________________________
James B. Powell, M.D.
Director May 31, 2001
___________________________________________
David B. Skinner, M.D.
* Director May 31, 2001
___________________________________________
Andrew G. Wallace, M.D.
/s/ Bradford T. Smith
*By: ______________________________________
Bradford T. Smith
Attorney-in-fact
EXHIBITS
1.1 Form of Underwriting Agreement**
5.1 Opinion of Bradford T. Smith, Esquire*
23.1 Consent of Bradford T. Smith, Esquire (included in Exhibit 5.1)
23.2 Consent of PricewaterhouseCoopers LLP**
24.1 Power of Attorney*
- --------
* Previously filed.
** Filed herewith.
5,500,000
Laboratory Corporation of America Holdings
Common Stock, par value $.10 per share
UNDERWRITING AGREEMENT
----------------------
May ___, 2001
CREDIT SUISSE FIRST BOSTON CORPORATION
UBS WARBURG LLC
GOLDMAN, SACHS & CO.
MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED
U.S. BANCORP PIPER JAFFRAY INC.
As Representatives of the Several Underwriters,
c/o Credit Suisse First Boston Corporation,
Eleven Madison Avenue,
New York, NY 10010-3629
Dear Sirs:
1. Introductory. Roche Holdings, Inc. ("Selling Stockholder") proposes
to sell 5,500,000 outstanding shares ("Firm Securities") of the common stock,
par value $.10 per share ("Securities") of Laboratory Corporation of America
Holdings, a Delaware corporation ("Company"), and also proposes to sell to the
Underwriters, at the option of the Underwriters, an aggregate of not more than
500,000 additional outstanding shares ("Optional Securities") of the Company's
Securities as set forth below. The Company has declared a 2 for 1 stock split
(effected as a dividend) (the "Stock Split") payable on June 11, 2001 (the
"Distribution Date") to stockholders of record on June 4, 2001(the "Record
Date"). The Securities to be issued by the Company in the Stock Split are herein
referred to as the "Split Shares". None of the Security or per Security numbers
in this Agreement have been adjusted to reflect the Stock Split. The Firm
Securities, the Optional Securities and the Split Shares to be issued by the
Company in respect of the Firm Securities and the Optional Securities are herein
collectively called the "Offered Securities". The Selling Stockholder hereby
agrees with the Company and with the several Underwriters named in Schedule A
("Underwriters") as follows:
2. Representations and Warranties of the Company and the Selling
Stockholder. (a) The Company represents and warrants to, and agrees with, the
several Underwriters that:
(i) A registration statement (No. 333-60632) relating to the Offered
Securities, including a form of prospectus, has been filed with the
Securities and Exchange Commission
("Commission") and either (A) has been declared effective under the
Securities Act of 1933 ("Act") and is not proposed to be amended or (B) is
proposed to be amended by amendment or post-effective amendment. If such
registration statement (the "initial registration statement") has been
declared effective, either (A) an additional registration statement (the
"additional registration statement") relating to the Offered Securities may
have been filed with the Commission pursuant to Rule 462(b) ("Rule 462(b)")
under the Act and, if so filed, has become effective upon filing pursuant
to such Rule and the Offered Securities all have been duly registered under
the Act pursuant to the initial registration statement and, if applicable,
the additional registration statement or (B) such an additional
registration statement is proposed to be filed with the Commission pursuant
to Rule 462(b) and will become effective upon filing pursuant to such Rule
and upon such filing the Offered Securities will all have been duly
registered under the Act pursuant to the initial registration statement and
such additional registration statement. If the Company does not propose to
amend the initial registration statement or if an additional registration
statement has been filed and the Company does not propose to amend it, and
if any post-effective amendment to either such registration statement has
been filed with the Commission prior to the execution and delivery of this
Agreement, the most recent amendment (if any) to each such registration
statement has been declared effective by the Commission or has become
effective upon filing pursuant to Rule 462(c) ("Rule 462(c)") under the Act
or, in the case of the additional registration statement, Rule 462(b). For
purposes of this Agreement, "Effective Time" with respect to the initial
registration statement or, if filed prior to the execution and delivery of
this Agreement, the additional registration statement means (A) if the
Company has advised the Representatives that it does not propose to amend
such registration statement, the date and time as of which such
registration statement, or the most recent post-effective amendment thereto
(if any) filed prior to the execution and delivery of this Agreement, was
declared effective by the Commission or has become effective upon filing
pursuant to Rule 462(c), or (B) if the Company has advised the
Representatives that it proposes to file an amendment or post-effective
amendment to such registration statement, the date and time as of which
such registration statement, as amended by such amendment or post-effective
amendment, as the case may be, is declared effective by the Commission. If
an additional registration statement has not been filed prior to the
execution and delivery of this Agreement but the Company has advised the
Representatives that it proposes to file one, "Effective Time" with respect
to such additional registration statement means the date and time as of
which such registration statement is filed and become effective pursuant to
Rule 462(b). "Effective Date" with respect to the initial registration
statement or the additional registration statement (if any) means the date
of the Effective Time thereof. The initial registration statement, as
amended at its Effective Time, including all material incorporated by
reference therein, including all information contained in the additional
registration statement (if any) and deemed to be a part of the initial
registration statement as of the Effective Time of the additional
registration statement pursuant to the General Instructions of the Form on
which it is filed and including all information (if any) deemed to be a
part of the initial registration statement as of its Effective Time
pursuant to Rule 430A(b) ("Rule 430A(b)") under the Act, is hereinafter
referred to as the "Initial Registration Statement". The additional
registration statement, as amended at its Effective Time, including the
contents of the initial registration statement incorporated by reference
therein and including all information (if any) deemed to be a part of the
additional registration statement as of its Effective Time pursuant to Rule
430A(b), is hereinafter referred to as the "Additional Registration
Statement". The Initial Registration Statement and the Additional
Registration Statement are hereinafter referred to collectively as the
"Registration Statements" and individually as a "Registration Statement".
The form of prospectus relating
2
to the Offered Securities, as first filed with the Commission pursuant to
and in accordance with Rule 424(b) ("Rule 424(b)") under the Act or (if no
such filing is required) as included in a Registration Statement, including
all material incorporated by reference in such prospectus, is hereinafter
referred to as the "Prospectus". No document has been or will be prepared
or distributed in reliance on Rule 434 under the Act.
(ii) If the Effective Time of the Initial Registration Statement is
prior to the execution and delivery of this Agreement: (A) on the Effective
Date of the Initial Registration Statement, the Initial Registration
Statement conformed in all respects to the requirements of the Act and the
rules and regulations of the Commission ("Rules and Regulations") and did
not include any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the
statements therein not misleading, (B) on the Effective Date of the
Additional Registration Statement (if any), each Registration Statement
conformed, or will conform, in all respects to the requirements of the Act
and the Rules and Regulations and did not include, or will not include, any
untrue statement of a material fact and did not omit, or will not omit, to
state any material fact required to be stated therein or necessary to make
the statements therein not misleading, and (C) on the date of this
Agreement, the Initial Registration Statement and, if the Effective Time of
the Additional Registration Statement is prior to the execution and
delivery of this Agreement, the Additional Registration Statement each
conforms, and at the time of filing of the Prospectus pursuant to Rule
424(b) or (if no such filing is required) at the Effective Date of the
Additional Registration Statement in which the Prospectus is included, each
Registration Statement and the Prospectus will conform, in all respects to
the requirements of the Act and the Rules and Regulations, and neither of
such documents includes, or will include, any untrue statement of a
material fact or omits, or will omit, to state any material fact required
to be stated therein or necessary to make the statements therein not
misleading. If the Effective Time of the Initial Registration Statement is
subsequent to the execution and delivery of this Agreement: on the
Effective Date of the Initial Registration Statement, the Initial
Registration Statement and the Prospectus will conform in all respects to
the requirements of the Act and the Rules and Regulations, neither of such
documents will include any untrue statement of a material fact or will omit
to state any material fact required to be stated therein or necessary to
make the statements therein not misleading, and no Additional Registration
Statement has been or will be filed. The two preceding sentences do not
apply to statements in or omissions from a Registration Statement or the
Prospectus based upon written information furnished to the Company by any
Underwriter through the Representatives specifically for use therein, it
being understood and agreed that the only such information is that
described as such in Section 7(c) hereof.
(iii) The Company has been duly incorporated and is an existing
corporation in good standing under the laws of the State of Delaware, with
power and authority (corporate and other) to own its properties and conduct
its business as described in the Prospectus; and the Company is duly
qualified to do business as a foreign corporation in good standing in all
other jurisdictions in which its ownership or lease of property or the
conduct of its business requires such qualification, except to the extent
that the failure to be so qualified or to be in good standing, considering
all such cases in the aggregate, would not be reasonably likely to have a
material adverse effect on the business, properties, financial position or
result of operations of the Company and its subsidiaries taken as a whole
("Material Adverse Effect").
3
(iv) Each subsidiary of the Company has been duly incorporated and is
an existing corporation in good standing under the laws of the jurisdiction
of its incorporation, with power and authority (corporate and other) to own
its properties and conduct its business as described in the Prospectus; and
each subsidiary of the Company is duly qualified to do business as a
foreign corporation in good standing in all other jurisdictions in which
its ownership or lease of property or the conduct of its business requires
such qualification, except to the extent that the failure to be so
qualified or to be in good standing would not be reasonably likely to have
a Material Adverse Effect; all of the issued and outstanding capital stock
of each subsidiary of the Company has been duly authorized and validly
issued and is fully paid and nonassessable; and the capital stock of each
subsidiary owned by the Company, directly or through subsidiaries, is owned
free from liens, encumbrances and defects.
(v) The Offered Securities and all other outstanding shares of
capital stock of the Company have been duly authorized and validly issued,
fully paid and nonassessable and conform to the description thereof
contained in the Prospectus; the Split Shares, when issued on the
Distribution Date, will have been duly authorized and validly issued, fully
paid and nonassessable and will conform to the description thereof
contained in the Prospectus; and the stockholders of the Company have no
preemptive rights with respect to the Securities.
(vi) Except as disclosed in the Prospectus, there are no contracts,
agreements or understandings between the Company and any person that would
give rise to a valid claim against the Company or any Underwriter for a
brokerage commission, finder's fee or other like payment.
(vii) Except for the Stockholder Agreement dated as of April 28, 1995
(the "Stockholder Agreement") among the Company, Hoffmann-LaRoche Inc. and
HLR Holdings Inc., there are no contracts, agreements or understandings
between the Company and any person granting such person the right to
require the Company to file a registration statement under the Act with
respect to any securities of the Company owned or to be owned by such
person or to require the Company to include such securities in the
securities registered pursuant to a Registration Statement or in any
securities being registered pursuant to any other registration statement
filed by the Company under the Act.
(viii) The Securities are listed on The New York Stock Exchange.
(ix) No consent, approval, authorization, or order of, or filing
with, any governmental agency or body or any court is required to be
obtained or made by the Company for the consummation of the transactions
contemplated by this Agreement in connection with the sale of the Offered
Securities, except such as have been obtained and made under the Act and
such as may be required under state securities laws.
(x) The execution, delivery and performance of this Agreement, and
the consummation of the transactions herein contemplated will not result in
a breach or violation of any of the terms and provisions of, or constitute
a default under, any statute, any rule, regulation or order of any
governmental agency or body or any court, domestic or foreign, having
jurisdiction over the Company or any subsidiary of the Company or any of
their properties, or any agreement or instrument to which the Company or
any such subsidiary is a party or by which the Company or any such
subsidiary is bound or to which any of the properties of the Company
4
or any such subsidiary is subject, or the charter or by-laws of the Company
or any such subsidiary, except to the extent that such breaches, violations
or defaults, individually or in the aggregate, would not be reasonably
likely to have a Material Adverse Effect.
(xi) This Agreement has been duly authorized, executed and
delivered by the Company.
(xii) The Company and its 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 that, if
determined adversely to the Company or any of its subsidiaries, would have
a Material Adverse Effect.
(xiii) No labor dispute with the employees of the Company or any
subsidiary exists or, to the knowledge of the Company, is imminent that
might have a Material Adverse Effect.
(xiv) The Company and its subsidiaries own, possess or can acquire
on reasonable terms, 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
employed 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 that, if determined adversely to the Company or any of its
subsidiaries, would individually or in the aggregate have a Material
Adverse Effect.
(xv) Except as disclosed in the Prospectus, neither the Company nor
any of its 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.
(xvi) Except as disclosed in the Prospectus, there are no pending
actions, suits or proceedings against or affecting the Company, any of its
subsidiaries or any of their respective properties that, if determined
adversely to the Company or any of its 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 this Agreement, or which are otherwise material in the context of the
sale of the Offered Securities; and no such actions, suits or proceedings
are threatened or, to the Company's knowledge, contemplated.
(xvii) The financial statements included in each Registration
Statement and the Prospectus present fairly the financial position of the
Company and its consolidated subsidiaries as of the dates shown and their
results of operations and cash flows for the periods shown, and
5
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 schedules included in each Registration Statement
present fairly the information required to be stated therein.
(xviii) Except as disclosed in the Prospectus, (A) since the date of
the latest audited financial statements included in the Prospectus there
has been no material adverse change, nor any development or event involving
a prospective material adverse change, in the condition (financial or
otherwise), business, properties or results of operations of the Company
and its subsidiaries taken as a whole whether or not arising in the
ordinary course of business; (B) there have been no transactions entered
into by the Company or any of its subsidiaries which are material to the
Company and its subsidiaries, taken as a whole, other than those entered
into in the ordinary course of business or in connection with the offering
of the Offered Securities; (C) except for changes occurring in connection
with the offering of the Offered Securities or pursuant to the issuance or
exercise of options pursuant to the Company's stock option or other
employee benefit plans described in the Registration Statement, there has
been no material change in the capital stock of the Company or any of its
subsidiaries; and (D) except as disclosed in or contemplated by the
Prospectus, there has been no dividend or distribution of any kind
declared, paid or made by the Company or any of its wholly owned
subsidiaries on any class of their capital stock.
(xix) The Company is not and, after giving effect to the offering
and sale of the Offered Securities, will not be an "investment company" as
defined in the Investment Company Act of 1940.
(b) The Selling Stockholder represents and warrants to, and agrees with,
the several Underwriters that:
(i) The Selling Stockholder has and on each Closing Date
hereinafter mentioned will have valid and unencumbered title to the Offered
Securities to be delivered by the Selling Stockholder on such Closing Date
and full right, power and authority to enter into this Agreement and to
sell, assign, transfer and deliver the Offered Securities to be delivered
by the Selling Stockholder on such Closing Date hereunder; and upon the
delivery of and payment for the Offered Securities on each Closing Date
hereunder the several Underwriters will acquire valid and unencumbered
title to the Offered Securities to be delivered by the Selling Stockholder
on such Closing Date. On each Closing Date at which the Selling Stockholder
delivers "due bills", (i) the Selling Stockholder will have full right,
power and authority to sell and transfer its right to receive the Split
Shares on the Distribution Date, (ii) the "due bills" delivered on such
Closing Date will represent valid assignments by the Selling Stockholder of
the Split Shares to be issued in respect of the Offered Securities
delivered on such Closing Date and (iii) upon delivery of the "due bills"
and delivery of and payment for the Offered Securities on such Closing Date
the several Underwriters will acquire valid and unencumbered assignments of
the right to receive the Split Shares to be issued in respect of such
Offered Securities on the Distribution Date.
(ii) If the Effective Time of the Initial Registration Statement is
prior to the execution and delivery of this Agreement: (A) on the Effective
Date of the Initial Registration Statement, the Initial Registration
Statement conformed in all respects to the requirements of the
6
Act and the Rules and Regulations and did not include any untrue statement
of a material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein not misleading, (B) on
the Effective Date of the Additional Registration Statement (if any), each
Registration Statement conformed, or will conform, in all respects to the
requirements of the Act and the Rules and Regulations and did not include,
or will not include, any untrue statement of a material fact and did not
omit, or will not omit, to state any material fact required to be stated
therein or necessary to make the statement therein not misleading, and (C)
on the date of this Agreement, the Initial Registration Statement and, if
the Effective Time of the Additional Registration Statement is prior to the
execution and delivery of this Agreement, the Additional Registration
Statement each conforms, and at the time of filing of the Prospectus
pursuant to Rule 424(b) or (if no such filing is required) at the Effective
Date of the Additional Registration Statement in which the Prospectus is
included, each Registration Statement and the Prospectus will conform, in
all respects to the requirements of the Act and the Rules and Regulations,
and neither of such documents includes, or will include, any untrue
statement of a material fact or omits, or will omit, to state any material
fact required to be stated therein or necessary to make the statements
therein not misleading. If the Effective Time of the Initial Registration
Statement is subsequent to the execution and delivery of this Agreement: on
the Effective Date of the Initial Registration Statement, the Initial
Registration Statement and the Prospectus will conform in all respects to
the requirements of the Act and the Rules and Regulations, neither of such
documents will include any untrue statement of a material fact or will omit
to state any material fact required to be stated therein or necessary to
make the statements therein not misleading. The two preceding sentences
apply only to the extent that any statements in or omissions from a
Registration Statement or the Prospectus are based on written information
furnished to the Company by the Stockholder specifically for use therein.
(iii) Except as disclosed in the Prospectus, there are no contracts,
agreements or understandings between the Selling Stockholder and any person
that would give rise to a valid claim against the Company or any
Underwriter for a brokerage commission, finder's fee or other like payment.
3. Purchase, Sale and Delivery of Offered Securities; Due Bills. On the
basis of the representations, warranties and agreements herein contained, but
subject to the terms and conditions herein set forth, the Selling Stockholder
agrees to sell to the Underwriters, and the Underwriters agree, severally and
not jointly, to purchase from the Selling Stockholder, at a purchase price of
$___ per share, the respective numbers of Firm Securities set forth opposite the
names of the Underwriters in Schedule A hereto.
The Selling Stockholder will deliver the Firm Securities, together with
"due bills" assigning the right to receive the Split Shares to be issued by the
Company in respect of the Firm Shares, to the Representatives for the accounts
of the Underwriters, against payment of the purchase price in Federal (same day)
funds by official bank check or checks or wire transfer to an account at a bank
acceptable to Credit Suisse First Boston Corporation ("CSFBC") drawn to the
order of the Selling Stockholder at the office of Skadden, Arps, Slate, Meagher,
& Flom LLP, at 10:00 A.M., New York time, on June , 2001, or at such other
time not later than seven full business days thereafter as CSFBC and the Selling
Stockholder determines, such time being herein referred to as the "First Closing
Date". For purposes of Rule 15c6-1 under the Securities Exchange Act of 1934,
the First Closing Date (if later than the otherwise applicable settlement date)
shall be the settlement date for payment of funds and delivery of securities for
all the Offered Securities sold pursuant to the offering. The certificates for
the Firm Securities so to be
7
delivered will be in definitive form, in such denominations and registered in
such names as CSFBC requests and will be made available for checking and
packaging at the above office of Skadden, Arps, Slate, Meagher & Flom LLP at
least 24 hours prior to the First Closing Date.
In addition, upon written notice from CSFBC given to the Company and the
Selling Stockholder from time to time not more than 30 days subsequent to the
date of the Prospectus, the Underwriters may purchase all or less than all of
the Optional Securities at the purchase price per Security to be paid for the
Firm Securities. The Selling Stockholder agrees to sell to the Underwriters the
number of shares of Optional Securities specified in such notice and the
Underwriters agree, severally and not jointly, to purchase such Optional
Securities. Such Optional Securities shall be purchased for the account of each
Underwriter in the same proportion as the number of Firm Securities set forth
opposite such Underwriter's name bears to the total number of Firm Securities
(subject to adjustment by CSFBC to eliminate fractions) and may be purchased by
the Underwriters only for the purpose of covering over-allotments made in
connection with the sale of the Firm Securities. No Optional Securities shall be
sold or delivered unless the Firm Securities previously have been, or
simultaneously are, sold and delivered. The right to purchase the Optional
Securities or any portion thereof may be exercised from time to time and to the
extent not previously exercised may be surrendered and terminated at any time
upon notice by CSFBC to the Selling Stockholder.
Each time for the delivery of and payment for the Optional Securities,
being herein referred to as an "Optional Closing Date", which may be the First
Closing Date (the First Closing Date and each Optional Closing Date, if any,
being sometimes referred to as a "Closing Date"), shall be determined by CSFBC
but shall be not later than five full business days after written notice of
election to purchase Optional Securities is given. The Selling Stockholder will
deliver the Optional Securities being purchased on each Optional Closing Date to
the Representatives for the accounts of the several Underwriters, against
payment of the purchase price in Federal (same day) funds by official bank check
or checks or wire transfer to an account at a bank acceptable to CSFBC drawn to
the order of Roche, at the office of Skadden, Arps, Slate, Meagher & Flom LLP.
At any Optional Closing Date occurring on or before June 14 , 2001, the Selling
==
Stockholder will also deliver to the Representatives for the accounts of the
several Underwriters "due bills" assigning the right to receive the Split Shares
to be issued by the Company in respect of the Optional Securities being
purchased on such Optional Closing Date. At any Optional Closing Date occurring
after June 14, 2001, the Selling Stockholder will also deliver to the
==
Representa tives for the accounts of the several Underwriters the Split Shares
issued by the Company in respect of the Optional Securities being issued on such
Optional Closing Date. The certificates for the Optional Securities (and the
Split Shares, if applicable) being purchased on each Optional Closing Date will
be in definitive form, in such denominations and registered in such names as
CSFBC requests upon reasonable notice prior to such Optional Closing Date and
will be made available for checking and packaging at the above office of
Skadden, Arps, Slate, Meagher & Flom LLP at a reasonable time in advance of such
Optional Closing Date.
4. Offering by Underwriters. It is understood that the several
Underwriters propose to offer the Offered Securities for sale to the public as
set forth in the Prospectus.
5. Certain Agreements of the Company and the Selling Stockholder. (a) The
Company agrees with the several Underwriters and the Selling Stockholder that:
(i) If the Effective Time of the Initial Registration Statement is
prior to the execution and delivery of this Agreement, the Company will
file the Prospectus with the
8
Commission pursuant to and in accordance with subparagraph (1) (or, if
applicable and if consented to by CSFBC, subparagraph (4)) of Rule 424(b)
not later than the earlier of (A) the second business day following the
execution and delivery of this Agreement or (B) the fifteenth business day
after the Effective Date of the Initial Registration Statement.
The Company will advise CSFBC promptly of any such filing pursuant to Rule
424(b). If the Effective Time of the Initial Registration Statement is
prior to the execution and delivery of this Agreement and an additional
registration statement is necessary to register a portion of the Offered
Securities under the Act but the Effective Time thereof has not occurred as
of such execution and delivery, the Company will file the additional
registration statement or, if filed, will file a post-effective amendment
thereto with the Commission pursuant to and in accordance with Rule 462(b)
on or prior to 10:00 P.M., New York time, on the date of this Agreement or,
if earlier, on or prior to the time the Prospectus is printed and
distributed to any Underwriter, or will make such filing at such later date
as shall have been consented to by CSFBC.
(ii) The Company will advise CSFBC promptly of any proposal to amend
or supplement the initial or any additional registration statement as filed
or the related prospectus or the Initial Registration Statement, the
Additional Registration Statement (if any) or the Prospectus and will
afford CSFBC a reasonable opportunity to comment on any such proposed
amendment or supplement; and the Company will also advise CSFBC promptly
of the effectiveness of each Registration Statement (if its Effective Time
is subsequent to the execution and delivery of this Agreement) and of any
amendment or supplementation of a Registration Statement or the Prospectus
and of the institution by the Commission of any stop order proceedings in
respect of a Registration Statement and will use its best efforts to
prevent the issuance of any such stop order and to obtain as soon as
possible its lifting, if issued.
(iii) If, at any time when a prospectus relating to the Offered
Securities is required to be delivered under the Act in connection with
sales by any Underwriter or dealer, any event occurs as a result of which
the Prospectus as then amended or supplemented would include an 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 if it is necessary at any time to
amend the Prospectus to comply with the Act, the Company will promptly
notify CSFBC of such event and will promptly prepare and file with the
Commission, at its own expense, an amendment or supplement which will
correct such statement or omission or an amendment which will effect such
compliance. Neither CSFBC'S consent to, nor the Underwriters' delivery of,
any such amendment or supplement shall constitute a waiver of any of the
conditions set forth in Section 6.
(iv) As soon as practicable, but not later than the Availability
Date (as defined below), the Company will make generally available to its
securityholders an earnings statement covering a period of at least 12
months beginning after the Effective Date of the Initial Registration
Statement (or, if later, the Effective Date of the Additional Registration
Statement) which will satisfy the provisions of Section 11(a) of the Act.
For the purpose of the preceding sentence, "Availability Date" means the
45th day after the end of the fourth fiscal quarter following the fiscal
quarter that includes such Effective Date, except that, if such fourth
fiscal quarter is the last quarter of the Company's fiscal year,
"Availability Date" means the 90th day after the end of such fourth fiscal
quarter.
9
(v) The Company will furnish to the Representatives copies of each
Registration Statement (three of which will be signed and will include all
exhibits), each related preliminary prospectus, and, so long as a
prospectus relating to the Offered Securities is required to be delivered
under the Act in connection with sales by any Underwriter or dealer, the
Prospectus and all amendments and supplements to such documents, in each
case in such quantities as CSFBC requests. The Prospectus shall be so
furnished on or prior to 3:00 P.M., New York time, on the business day
following the later of the execution and delivery of this Agreement or the
Effective Time of the Initial Registration Statement. All other such
documents shall be so furnished as soon as available. The Selling
Stockholder will pay the expenses of printing and distributing to the
Underwriters all such documents.
(vi) The Company will arrange for the qualification of the Offered
Securities for sale under the laws of such jurisdictions as CSFBC
designates and will continue such qualifications in effect so long as
required for the distribution.
(vii) During the period of one year hereafter, the Company will
furnish to the Representatives and, upon request, to each of the other
Underwriters, as soon as practicable after the end of each fiscal year, a
copy of its annual report to stockholders for such year; and the Company
will furnish to the Representatives (i) as soon as available, a copy of
each report and any definitive proxy statement of the Company filed with
the Commission under the Securities Exchange Act of 1934 or mailed to
stockholders, and (ii) from time to time, such other information concerning
the Company as CSFBC may reasonably request.
(viii) For a period of 90 days after the date of the initial public
offering of the Offered Securities, the Company will not offer, sell,
contract to sell, pledge or otherwise dispose of, directly or indirectly,
or file with the Commission a registration statement under the Act relating
to, any additional shares of its Securities or securities convertible into
or exchangeable or exercisable for any shares of its Securities, or
publicly disclose the intention to make any such offer, sale, pledge,
disposition or filing, without the prior written consent of CSFBC, except
grants of employee stock options pursuant to the terms of a plan in effect
on the date hereof, issuances of Securities pursuant to the exercise of
such options or the exercise of any other employee stock options
outstanding on the date hereof or issuances of Securities pursuant to the
Company's dividend reinvestment plan.
(b) The Selling Stockholder agrees with the several Underwriters and the
Company that:
(i) The Selling Stockholder will pay all expenses incident to the
performance of the obligations of the Selling Stockholder and the
obligations of the Company under this Agree ment, for any filing fees and
other expenses (including fees and disbursements of counsel) incurred in
connection with qualification of the Offered Securities for sale under the
laws of such jurisdictions as CSFBC designates and the printing of
memoranda relating thereto for the filing fee incident to the review by the
National Association of Securities Dealers, Inc. of the Offered Securities,
for any travel expenses of the Company's officers and employees and any
other expenses of the Company in connection with attending or hosting
meetings with prospective purchasers of the Offered Securities, for any
transfer taxes on the sale of the Offered Securities to the Underwriters
and for expenses incurred in distributing preliminary prospectuses and the
Prospectus (including any amendments and supplements thereto) to the
Underwriters.
10
(ii) The Selling Stockholder agrees to deliver to CSFBC, attention:
Transactions Advisory Group on or prior to the First Closing Date a
properly completed and executed United States Treasury Department Form W-9
(or other applicable form or statement specified by Treasury Department
regulations in lieu thereof).
(iii) The Selling Stockholder agrees, for a period of 90 days after
the date of the initial public offering of the Offered Securities, not to
offer, sell, contract to sell, pledge or otherwise dispose of, directly or
indirectly, any additional shares of the Securities of the Company or
securities convertible into or exchangeable or exercisable for any shares
of Securities, or publicly disclose the intention to make any such offer,
sale, pledge or disposition, without the prior written consent of CSFBC,
provided, however, the foregoing will not apply to the 500,000 shares of
common stock owned by the Selling Stockholder that are subject to the over-
allotment option and are not purchased by the Underwriters pursuant to such
over-allotment option.
6. Conditions of the Obligations of the Underwriters. The obligations of
the several Underwriters to purchase and pay for the Firm Securities on the
First Closing Date and the Optional Securities to be purchased on each Optional
Closing Date will be subject to the accuracy of the representations and
warranties on the part of the Company and the Selling Stockholder herein, to the
accuracy of the statements of Company officers made pursuant to the provisions
hereof, to the perfor mance by the Company and the Selling Stockholder of their
obligations hereunder and to the following additional conditions precedent:
(a) The Representatives shall have received a letter, dated the date
of delivery thereof (which, if the Effective Time of the Initial
Registration Statement is prior to the execution and delivery of this
Agreement, shall be on or prior to the date of this Agreement or, if the
Effective Time of the Initial Registration Statement is subsequent to the
execution and delivery of this Agreement, shall be prior to the filing of
the amendment or post-effective amendment to the registration statement to
be filed shortly prior to such Effective Time), of PricewaterhouseCoopers
LLP confirming that they are independent public accountants within the
meaning of the Act and the applicable published Rules and Regulations
thereunder and stating to the effect that:
(i) in their opinion the financial statements and schedules
examined by them and included in the Registration Statements comply as
to form in all material respects with the applicable accounting
requirements of the Act and the related published Rules and
Regulations;
(ii) they have performed the procedures specified by the
American Institute of Certified Public Accountants for a review of
interim financial information as described in Statement of Auditing
Standards No. 71, Interim Financial Information, on the unaudited
financial statements included in the Registration Statements;
(iii) on the basis of the review referred to in clause (ii)
above, a reading of the latest available interim financial statements
of the Company, inquiries of officials of the Company who have
responsibility for financial and accounting matters and other
specified procedures, nothing came to their attention that caused them
to believe that:
11
(A) the unaudited financial statements included in the
Registration Statements do not comply as to form in all material
respects with the applicable accounting requirements of the Act
and the related published Rules and Regulations or any material
modifications should be made to such unaudited financial
statements for them to be in conformity with generally accepted
accounting principles;
(B) at the date of the latest available balance sheet read
by such accountants, or at a subsequent specified date not more
than three business days prior to the date of such letter, there
was any change in the capital stock or any increase in short-term
indebtedness or long-term debt of the Company and its
consolidated subsidiaries or, at the date of the latest available
balance sheet read by such accountants, there was any decrease in
consolidated net current assets or net assets, as compared with
amounts shown on the latest balance sheet included in the
Prospectus; or
(C) for the period from the closing date of the latest
income state ment included in the Prospectus to the closing date
of the latest available income statement read by such accountants
there were any decreases, as compared with the corresponding
period of the previous year and with the period of corresponding
length ended the date of the latest income statement included in
the Prospectus, in consolidated net sales or net operating income
in the total or per share amounts of consolidated income before
extraordinary items or net income;
except in all cases set forth in clauses (B) and (C) above for
changes, increases or decreases which the Prospectus discloses have
occurred or may occur or which are described in such letter; and
(iv) they have compared specified dollar amounts (or percentages
derived from such dollar amounts) and other financial information
contained in the Registration Statements (in each case to the extent
that such dollar amounts, percentages and other financial information
are derived from the general accounting records of the Company and its
subsidiaries subject to the internal controls of the Company's
accounting system or are derived directly from such records by
analysis or computation) with the results obtained from inquiries, a
reading of such general accounting records and other procedures
specified in such letter and have found such dollar amounts,
percentages and other financial information to be in agreement with
such results, except as otherwise specified in such letter.
For purposes of this subsection, (i) if the Effective Time of the Initial
Registration Statement is subsequent to the execution and delivery of this
Agreement, "Registration Statements" shall mean the initial registration
statement as proposed to be amended by the amendment or post-effective
amendment to be filed shortly prior to its Effective Time, (ii) if the
Effective Time of the Initial Registration Statement is prior to the
execution and delivery of this Agreement but the Effective Time of the
Additional Registration Statement is subsequent to such execution and
delivery, "Registration Statements" shall mean the Initial Registration
Statement and the additional registration statement as proposed to be filed
or as proposed to be amended by the
12
post-effective amendment to be filed shortly prior to its Effective Time,
and (iii) "Prospectus" shall mean the prospectus included in the
Registration Statements. All financial statements and schedules included in
material incorporated by reference into the Prospectus shall be deemed
included in the Registration Statements for purposes of this subsection.
(b) If the Effective Time of the Initial Registration Statement is not
prior to the execution and delivery of this Agreement, such Effective Time shall
have occurred not later than 10:00 P.M., New York time, on the date of this
Agreement or such later date as shall have been consented to by CSFBC. If the
Effective Time of the Additional Registration Statement (if any) is not prior to
the execution and delivery of this Agreement, such Effective Time shall have
occurred not later that 10:00 P.M., New York time, on the date of this Agreement
or, if earlier, the time the Prospectus is printed and distributed to any
Underwriter, or shall have occurred at such later date as shall have been
consented to by CSFBC. If the Effective Time of the Initial Registration
Statement is prior to the execution and delivery of this Agreement, the
Prospectus shall have been filed with the Commission in accordance with the
Rules and Regulations and Section 5(a) of this Agreement. Prior to such Closing
Date, no stop order suspending the effectiveness of a Registration Statement
shall have been issued and no proceedings for that purpose shall have been
instituted or, to the knowledge of the Selling Stockholder, the Company or the
Representatives, shall be contemplated by the Commission.
(c) Subsequent to the execution and delivery of this Agreement, there shall
not have occurred (i) any change, or any development or event involving a
prospective change, in the condition (financial or other), business, properties
or results of operations of the Company or its subsidiaries which, in the
judgment of a majority in interest of the Underwriters including the
Representatives, is material and adverse and makes it impractical or inadvisable
to proceed with completion of the public offering or the sale of and payment for
the Offered Securities; (ii) any downgrading in the rating of any debt
securities of the Company by any "nationally recognized statistical rating
organization" (as defined for purposes of Rule 436(g) under the Act), or any
public announcement that any such organization has under surveillance or review
its rating of any debt securities of the Company (other than an announcement
with positive implications of a possible upgrading, and no implication of a
possible downgrading, of such rating); (iii) any suspension or limitation of
trading in securities generally on the New York Stock Exchange or any setting of
minimum prices for trading on such exchange, or any suspension of trading of any
securities of the Company on any exchange or in the over-the-counter market;
(iv) any banking moratorium declared by U.S. Federal or New York authorities; or
(v) any outbreak or escalation of major hostilities in which the United States
is involved, any declaration of war by Congress or any other substantial
national or international calamity or emergency if, in the judgment of a
majority in interest of the Underwriters including the Representatives, the
effect of any such outbreak, escalation, declaration, calamity or emergency
makes it impractical or inadvisable to proceed with completion of the public
offering or the sale of and payment for the Offered Securities.
(d) The Representatives shall have received an opinion, dated such Closing
Date, of Bradford T. Smith, Executive Vice President, General Counsel, Corporate
Compliance Officer and Secretary of the Company to the effect that:
(i) The Company has been duly incorporated and is an existing
corporation in good standing under the laws of the State of Delaware, with
corporate power and authority to own its properties and conduct its
business as described in the Prospectus. The Company is duly qualified to
do business as a foreign corporation in good standing in all other
jurisdictions in which its ownership or lease of property or the conduct of
its business requires such qualification,
13
except to the extent that the failure to be so qualified or to be in good
standing, considering all such cases in the aggregate, will not be
reasonably likely to have a Material Adverse Effect;
(ii) The Offered Securities delivered on such Closing Date have been
duly authorized and validly issued, are fully paid and nonassessable and
conform to the description thereof contained in the Prospectus will have
been duly authorized and validly issued, fully paid and nonassessable and
will conform to the description thereof contained in the Prospectus;
and the stockholders of the Company have no preemptive rights with respect
to the Offered Securities;
(iii) Except for the Stockholder Agreement, there are no contracts,
agreements or understandings known to such counsel between the Company and
any person granting such person the right to require the Company to file a
registration statement under the Act with respect to any securities of the
Company owned or to be owned by such person or to require the Company to
include such securities in the securities registered pursuant to the
Registration Statement or in any securities being registered pursuant to
any other registration statement filed by the Company under the Act;
(iv) The execution, delivery and performance of this Agreement and
the consummation of the transactions herein contemplated will not
result in a breach or violation of any of the terms and provisions of, or
constitute a default under, any statute, any rule, regulation or order of
any governmental agency or body or any court having jurisdiction over the
Company or any subsidiary of the Company or any of their properties, or any
agreement or instrument to which the Company or any such subsidiary is a
party or by which the Company or any such subsidiary is bound or to which
any of the properties of the Company or any such subsidiary is subject, or
the charter or by-laws of the Company or any such subsidiary, except to the
extent that such breaches, violations, or defaults, individually or in the
aggregate, would not be reasonably likely to have a Material Adverse
Effect;
(v) The descriptions in the Registration Statement and the
Prospectus of statutes, legal and governmental proceedings and contracts
and other documents are accurate and fairly present the information
required to be shown; and
(vi) There are no legal or governmental proceedings required to be
described in the Registration Statement or the Prospectus which are not
described as required, or of any contracts or documents of a character
required to be described in the Registration Statement or Prospectus or to
be filed as exhibits to the Registration Statement which are not described
or filed as required.
(e) The Representatives shall have received an opinion, dated such Closing
Date, of Davis Polk & Wardwell, special counsel for the Company, to the effect
that:
(i) No consent, approval, authorization or order of, or filing
with, any govern mental agency or body or any court is required to be
obtained or made by the Company for the consummation of the transactions
contemplated by this Agreement in connection with the sale of the Offered
Securities, except such as have been obtained and made under the Act and
such as may be required under state securities laws;
14
(ii) The Initial Registration Statement was declared effective under
the Act as of the date and time specified in such opinion, the Additional
Registration Statement (if any) was filed and, assuming compliance with
clause (b)(2) of Rule 462, became effective under the Act as of the date
and time (if determinable) specified in such opinion, the Prospectus either
was filed with the Commission pursuant to the subparagraph of Rule 424(b)
specified in such opinion on the date specified therein or was included in
the Initial Registration Statement or the Additional Registration Statement
(as the case may be), and, to the best of the knowledge of such counsel, no
stop order suspending the effectiveness of a Registration Statement or any
part thereof has been issued and no proceedings for that purpose have been
instituted or are pending or contemplated under the Act;
(iii) This Agreement has been duly authorized, executed and delivered
by the Com pany; and
(iv) Such counsel shall also state that while they have not
themselves checked
the accuracy, completeness or fairness of, or otherwise verified, the
information furnished with respect to other matters in the Registration
Statement or the Prospectus, they have generally reviewed and discussed
with your representatives, and with certain officers and employees of, and
counsel and independent public accountants for, the Company the information
furnished whether or not subject to their check and verification and that
on the basis of such consideration, review and discussion, but without
independent check or verification except as stated above, nothing has come
to their attention that causes them to believe that (i) the Registration
Statement or the Prospectus (except for the financial statements and
financial schedules and other financial data included therein, as to which
they need express no belief) do not comply as to form in all material
respects with the requirements of the Securities Act and the applicable
rules and regulations of the Commission thereunder, (ii)the Registration
Statement or the Prospectus included therein (except for the financial
statements and financial schedules and other financial data included
therein, as to which they need express no belief) at the time the
Registration Statement became effective contained an untrue statement of a
material fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein not misleading or (iii)
the Prospectus (except as stated) as of its date or as of the Closing Date
contained or contains an untrue statement of a material fact or omitted or
omits 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.
(f) The Representatives shall have received an opinion, dated such Closing
Date, of Davis Polk & Wardwell, special counsel for the Selling Stockholder, to
the effect that:
(i) The Selling Stockholder has been duly organized and is validly
existing as a corporation in good standing under the laws of Delaware;
Roche has full power and authority to enter into this Agreement and to
sell, assign, transfer and deliver the Securities to be sold by the Selling
Stockholder hereunder; and the Selling Stockholder has duly authorized the
execution and delivery of this Agreement; and
(ii) Upon payment for the Offered Securities to be sold by the
Selling Stockholder as provided herein, delivery of such Offered
Securities, as directed by the Underwriters, to Cede & Co. ("Cede") or
such other nominee as may be designated by the Depository Trust Company
("DTC"), registration of such Offered Securities in the name of Cede or
such other nominee and
15
the crediting of such Offered Securities on the books of DTC to securities
accounts of the Underwriters (assuming that neither DTC nor any such
underwriter has notice of any adverse claim (as such phrase is defined in
Section 8-105 of the Uniform Commercial Code as in effect in the State of
New York (the "UCC")) to such Offered Securities), (A) DTC shall be a
"protected purchaser" of such Offered Securities within the meaning of
Section 8-303 of the UCC, (B) under Section 8-501 of the UCC, the
Underwriters will acquire a valid security entitlement in respect of such
Offered Securities and (C) no action based on any "adverse claim" (as
defined in Section 8-102 of the UCC) to such Offered Securities may be
asserted against the Underwriters with respect to such security
entitlement; it being understood that for the purposes of this opinion,
such counsel has assumed that when such payment, delivery and crediting
occur, (x) such Offered Securities will have been registered in the name of
Cede or another nominee designated by DTC, in each case on the Company's
share registry in accordance with its certificate of incorporation, bylaws
and applicable law, (y) DTC will be registered as a "clearing corporation"
within the meaning of Section 8-102 of the UCC and (z) appropriate entries
to the accounts of the several Underwriters on the records of DTC will have
been made pursuant to the UCC.
(g) The Representatives shall have received from Skadden, Arps, Slate,
Meagher & Flom LLP, counsel for the Underwriters, such opinion or opinions,
dated such Closing Date, with respect to the incorporation of the Company, the
validity of the Offered Securities delivered on such Closing Date, the
Registration Statement, the Prospectus and other related matters as the
Representatives may require, and the Selling Stockholder and the Company shall
have furnished to such counsel such documents as they request for the purpose of
enabling them to pass upon such matters.
(h) The Representatives shall have received a certificate, dated such
Closing Date, of the President or any Vice President and a principal financial
or accounting officer of the Company in which such officers, to the best of
their knowledge after reasonable investigation, shall state that: the
representations and warranties of the Company in this Agreement are true and
correct; the Company has complied with all agreements and satisfied all
conditions on its part to be performed or satisfied hereunder at or prior to
such Closing Date; no stop order suspending the effectiveness of any
Registration Statement has been issued and no proceedings for that purpose have
been instituted or are contemplated by the Commission; the Additional
Registration Statement (if any) satisfying the requirements of subparagraphs (1)
and (3) or Rule 462(b) was filed pursuant to Rule 462(b), including payment of
the applicable filing fee in accordance with Rule 11 1(a) or (b) under the Act,
prior to the time the Prospectus was printed and distributed to any underwriter;
and, subsequent to the respective date of the most recent financial statements
in the Prospectus, there has been no material adverse change, nor any
development or event involving a prospective material adverse change, in the
condition (financial or other), business, properties or results of operations of
the Company and its subsidiaries taken as a whole except as set forth in or
contemplated by the Prospectus or as described in such certificate.
(i) The Representatives shall have received a certificate, dated such
Closing Date, of an authorized officer of the Selling Stockholder, in which such
authorized officer, to the best of his or her knowledge after reasonable
investigation, shall state that: the representations and warranties of the
Selling Stockholder in this Agreement are true and correct and the Selling
Stockholder has complied with all agreements and satisfied all conditions on its
part to be performed or satisfied under this Agreement at or prior to such
Closing Date.
16
(j) The Representatives shall have received a letter, dated such Closing
Date, of PricewaterhouseCoopers LLP which meets the requirements of subsection
(a) of this Section, except that the specified date referred to in such
subsection will be a date not more than three days prior to such Closing Date
for the purposes of this subsection.
(k) The Split Shares shall have been approved for listing on The New York
Stock Exchange, subject to notice of issuance.
The Selling Stockholder and the Company will furnish the Representatives with
such conformed copies of such opinions, certificates, letters and documents as
the Representatives reasonably requests. CSFBC may in its sole discretion waive
on behalf of the Underwriters compliance with any conditions to the obligations
of the Underwriters hereunder, whether in respect of an Optional Closing Date or
otherwise.
7. Indemnification and Contribution. (a) The Company will indemnify and
hold harmless each Underwriter, its partners, directors and officers and each
person, if any, who controls such Underwriter within the meaning of Section 15
of the Act, against any losses, claims, damages or liabilities, joint or
several, to which such Underwriter may become subject, under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in any Registration Statement,
the Prospectus, or any amendment or supplement thereto, or any related
preliminary prospectus, 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 not misleading, and will reimburse
each Underwriter for any legal or other expenses reasonably incurred by such
Underwriter in connection with investigating or defending any such loss, claim,
damage, liability or action as such expenses are incurred; provided, however,
that the Company will not be liable in any such case to the extent that any such
loss, claim, damage or liability arises out of or is based upon an untrue
statement or alleged untrue statement in or omission or alleged omission from
any of such documents in reliance upon and in conformity with written
information furnished to the Company by any Underwriter through the
Representatives specifically for use therein, it being understood and agreed
that the only such information furnished by any Underwriter consists of the
information described as such in subsection (c) below.
(b) The Selling Stockholder will indemnify and hold harmless each
Underwriter, its partners, directors and officers and each person, if any, who
controls such Underwriter within the meaning of Section 15 of the Act, against
any losses, claims, damages or liabilities, joint or several, to which such
Underwriter may become subject, under the Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon any untrue statement or alleged untrue statement of any
material fact contained in any Registration Statement, the Prospectus, or any
amendment or supplement thereto, or any related preliminary prospectus, 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 not misleading, in each case to the extent, that such untrue statement
or alleged untrue statement or omission or alleged omission was made in reliance
upon and in conformity with written information furnished to the Company or the
Underwriters by the Selling Stockholder, and will reimburse such Underwriter for
any legal or other expenses reasonably incurred by such Underwriter in
connection with investigating or defending any such loss, claim, damage,
liability or action as such expenses are incurred.
(c) Each Underwriter will severally and not jointly indemnify and hold
harmless the Com pany, its directors and officers and each person, if any, who
controls the Company within the meaning of
17
Section 15 of the Act, and the Selling Stockholder against any losses, claims,
damages or liabilities to which the Company or the Selling Stockholder may
become subject, under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon any untrue statement or alleged untrue statement of any material fact
contained in any Registration Statement, the Prospectus, or any amendment or
supplement thereto, or any related preliminary prospectus, or arise out of or
are based upon the omission or the alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements therein
not misleading, in each case to the extent, but only to the extent, that such
untrue statement or alleged untrue statement or omission or alleged omission was
made in reliance upon and in conformity with written information furnished to
the Company by such Underwriter through the Representatives specifically for use
therein, and will reimburse any legal or other expenses reasonably incurred by
the Company and the Selling Stockholder in connection with investigating or
defending any such loss, claim, damage, liability or action as such expenses are
incurred, it being understood and agreed that the only such information
furnished by any Underwriter consists of the following information in the
Prospectus furnished on behalf of each Underwriter: the concession and
reallowance figures appearing in the fourth paragraph under the caption
"Underwriting" and the over-allotments and stabilizing descriptions appearing in
the ninth paragraph under the caption "Underwriting".
(d) Promptly after receipt by an indemnified party under this Section of
notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against an indemnifying party under
subsection (a), (b) or (c) above, notify the indemnifying party of the
commencement thereof; but the omission so to notify the indemnifying party will
not relieve it from any liability which it may have to any indemnified party
otherwise than under subsection (a), (b) or (c) above. In case any such action
is brought against any indemnified party and it notifies an 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 satisfactory to such indemnified party (who shall not, except with the
consent of the indemnified party, be counsel to the indemnifying party), 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 for any legal or other
expenses subsequently incurred by such indemnified party in connection with the
defense thereof other than reasonable costs of investigation. No indemnifying
party shall, without the prior written consent of the indemnified party, 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 an indemnified party.
(e) If the indemnification provided for in this Section is unavailable or
insufficient to hold harmless an indemnified party under subsection (a), (b) or
(c) 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 referred to in subsection (a), (b) or (c) above (i) in such
proportion as is appropriate to reflect the relative benefits received by the
Company and the Selling Stockholder on the one hand and the Underwriters on the
other from the offering of the Securities or (ii) if the allocation provided by
clause (i) above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the Company and the Selling Stockholder on
the one hand and the Underwriters on the other in connection with the statements
or omissions which resulted in such losses, claims, damages or liabilities as
well as any other relevant
18
equitable considerations. The relative benefits received by the Company and the
Selling Stockholder on the one hand and the Underwriters on the other shall be
deemed to be in the same proportion as the total net proceeds from the offering
(before deducting expenses) received by the Selling Stockholder bear to the
total underwriting discounts and commissions received by the Underwriters. The
relative fault 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, the Selling Stockholder or the Underwriters and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such untrue 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 (e) 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 (e). Notwithstanding the provisions of this subsection (e), no
Underwriter shall be required to contribute any amount in excess of the amount
by which the total price at which the Securities underwritten by it and
distributed to the public were offered to the public exceeds the amount of any
damages which such Underwriter has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The Underwriters' obligations in
this subsection (e) to contribute are several in proportion to their respective
underwriting obligations and not joint.
(f) The obligations of the Company and the Selling Stockholder under this
Section shall be in addition to any liability which the Company and the Selling
Stockholder may otherwise have and shall extend, upon the same terms and
conditions, to each person, if any, who controls any Underwriter within the
meaning of the Act; and the obligations of the Underwriters under this Section
shall be in addition to any liability which the respective Underwriters may
otherwise have and shall extend, upon the same terms and conditions, to each
director of the Company, to each officer of the Company who has signed a
Registration Statement and to each person, if any, who controls the Company
within the meaning of the Act.
8. Default of Underwriters. If any Underwriter or Underwriters default
in their obligations to purchase Offered Securities hereunder on either the
First or any Optional Closing Date and the aggregate number of shares of Offered
Securities that such defaulting Underwriter or Underwriters agreed but failed to
purchase does not exceed 10% of the total number of shares of Offered Securities
that the Underwriters are obligated to purchase on such Closing Date, CSFBC may
make arrangements satisfactory to the Selling Stockholder for the purchase of
such Offered Securities by other persons, including any of the Underwriters, but
if no such arrangements are made by such Closing Date, the non-defaulting
Underwriters shall be obligated severally, in proportion to their respective
commitments hereunder, to purchase the Offered Securities that such defaulting
Underwriters agreed but failed to purchase on such Closing Date. If any
Underwriter or Underwriters so default and the aggregate number of shares of
Offered Securities with respect to which such default or defaults occur exceeds
10% of the total number of shares of Offered Securities that the Underwriters
are obligated to purchase on such Closing Date and arrangements satisfactory to
CSFBC and the Selling Stockholder for the purchase of such Offered Securities by
other persons are not made within 36 hours after such default, this Agreement
will terminate without liability on the part of any non-defaulting Underwriter,
the Company or the Selling Stockholder, except as provided in Section 9
(provided that if such default occurs with respect to Optional Securities after
the First Closing Date, this Agreement will not terminate as to the Firm
Securities or any Optional Securities purchased prior to such termination). As
used in this Agreement, the term "Underwriter"
19
includes any person substituted for an Underwriter under this Section. Nothing
herein will relieve a defaulting Underwriter from liability for its default.
9. Survival of Certain Representations and Obligations. The respective
indemnities, agreements, representations, warranties and other statements of the
Selling Stockholder, of the Company or its officers and of the several
Underwriters set forth in or made pursuant to this Agreement will remain in full
force and effect, regardless of any investigation, or statement as to the
results thereof, made by or on behalf of any Underwriter, the Selling
Stockholder, the Company or any of their respective representatives, officers or
directors or any controlling person, and will survive delivery of and payment
for the Offered Securities. If this Agreement is terminated pursuant to Section
8 or if for any reason the purchase of the Offered Securities by the
Underwriters is not consummated, the Selling Stockholder shall remain
responsible for the expenses to be paid or reimbursed by it pursuant to Section
5 and the respective obligations of the Company, the Selling Stockholder, and
the Underwriters pursuant to Section 7 shall remain in effect, and if any
Offered Securities have been purchased hereunder the representations and
warranties in Section 2 and all obligations under Section 5 shall also remain in
effect. If the purchase of the Offered Securities by the Underwriters is not
consummated for any reason other than solely because of the termination of this
Agreement pursuant to Section 8 or the occurrence of any event specified in
clause (iii), (iv) or (v) of Section 6(c), the Selling Stockholder will
reimburse the Underwriters for all out-of-pocket expenses (including fees and
disbursements of counsel) reasonably incurred by them in connection with the
offering of the Offered Securities.
10. Notices. All communications hereunder will be in writing and, if sent
to the Underwriters, will be mailed, delivered or telegraphed and confirmed to
the Representatives c/o Credit Suisse First Boston Corporation, Eleven Madison
Avenue, New York, NY 10010-3629, Attention: Transactions Advisory Group, or, if
sent to the Company, will be mailed, delivered or telegraphed and confirmed to
it at 358 South Main Street, Burlington, North Carolina 27215, Attention:
General Counsel, or, if sent to the Selling Stockholder, will be mailed,
delivered or telegraphed and confirmed to it care of F. Hoffman-La Roche LTD,
Grenzacherstrasse 124, CH-4070 Basel, Switzerland, Attention: Bernd Wolff;
provided, however, that any notice to an Underwriter pursuant to Section 7 will
be mailed, delivered or telegraphed and confirmed to such Underwriter.
11. Successors. This Agreement will inure to the benefit of and be binding
upon the parties hereto and their respective successors and the officers and
directors and controlling persons referred to in Section 7, and no other person
will have any right or obligation hereunder.
12. Representation. The Representatives will act for the several
Underwriters in connection with the transactions contemplated by this Agreement,
and any action under this Agreement taken by the Representatives jointly or by
CSFBC will be binding upon all the Underwriters.
13. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same Agreement.
14. Applicable Law. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of New York, without regard to principles
of conflicts of laws.
20
The Company 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.
21
If the foregoing is in accordance with the Representatives' understanding
of our agreement, kindly sign and return to the Company one of the counterparts
hereof, whereupon it will become a binding agreement among the Selling
Stockholder, the Company and the several Underwriters in accordance with its
terms.
Very truly yours,
ROCHE HOLDINGS, INC.
By:___________________________________
Name:
Title:
LABORATORY CORPORATION OF
AMERICA HOLDINGS
By:_________________________________
Name:
Title:
CREDIT SUISSE FIRST BOSTON CORPORATION
UBS WARBURG LLC
GOLDMAN, SACHS & CO.
MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED
U.S. BANCORP PIPER JAFFRAY INC.
Acting on behalf of themselves and as the
Representatives of the several Underwriters.
By: CREDIT SUISSE FIRST BOSTON CORPORATION
By:______________________________________
Name:
Title:
22
SCHEDULE A
Number of
Firm Securities
Underwriter to be Purchased
----------- ---------------
Credit Suisse First Boston Corporation.................................
UBS Warburg LLC........................................................
Goldman, Sachs & Co....................................................
Merrill Lynch, Pierce Fenner & Smith Incorporated......................
U.S. Bancorp Piper Jaffray Inc.........................................
_______
Total.................................
============
23
EXHIBIT 23.2
Consent of Independent Accountants
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-3 of our report dated February 9, 2001, relating to the
consolidated financial statements and financial statement schedule, which
appears in Laboratory Corporation of America Holdings' Annual Report on Form
10-K for the year ended December 31, 2000. We also consent to the references to
us under the headings "Experts" and "Summary Consolidated Financial
Information" in such Registration Statement.
/s/ PricewaterhouseCoopers LLP
-------------------------------------
PricewaterhouseCoopers LLP
Charlotte, North Carolina
May 31, 2001
