As filed with the Securities and Exchange Commission on March 6, 2002
Registration No. 333-83108
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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)
Bradford T. Smith
Executive Vice President,
Chief Legal Counsel 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)
Copies to:
Deanna L. Kirkpatrick Allison R. Schneirov
Davis Polk & Wardwell Mark C. Smith
450 Lexington Avenue Skadden, Arps, Slate, Meagher & Flom LLP
New York, New York 10017 Four Times Square
(212) 450-4000 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 this 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. [ ]
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.
================================================================================
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 MARCH 6, 2002
7,000,000 Shares
Laboratory Corporation of America Holdings
Common Stock
-----------------------
The shares of our common stock are being sold by the selling stockholder.
We will not receive any of the proceeds from the shares of our common stock
sold by the selling stockholder.
Our common stock is listed on The New York Stock Exchange under the symbol
"LH." The last reported sale price on March 5, 2002 was $84.90 per share.
The underwriters have an option to purchase a maximum of 700,000
additional shares of our common stock from the selling stockholder to cover
over-allotments of shares.
Underwriting Proceeds to
Price to Discounts and Selling
Public Commissions Stockholder
-------- ------------- -----------
Per Share............ $ $ $
Total................ $ $ $
Delivery of the shares of our common stock will be made on or about March
, 2002.
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.
Credit Suisse First Boston UBS Warburg
Banc of America Securities LLC Deutsche Banc Alex. Brown
Merrill Lynch & Co. U.S. Bancorp Piper Jaffray
The date of this prospectus is March , 2002
-----------------------
TABLE OF CONTENTS
Page
-----
PROSPECTUS SUMMARY.............................................................1
SPECIAL NOTE REGARDING FORWARD LOOKING STATEMENTS..............................7
PRICE RANGE OF COMMON STOCK AND DIVIDEND HISTORY...............................8
USE OF PROCEEDS................................................................8
SELLING STOCKHOLDER............................................................9
UNDERWRITING..................................................................10
NOTICE TO CANADIAN RESIDENTS..................................................13
LEGAL MATTERS.................................................................14
EXPERTS.......................................................................14
WHERE YOU CAN FIND MORE INFORMATION...........................................15
-----------------------
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.
ii
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 2001 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 primary
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 19,000 employees, we processed tests on
more than 281,000 patient specimens daily in 2001 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 June 2001, we acquired Viro-Med Inc., a national leader in high-end
virologic infectious disease testing, based in Minneapolis, Minnesota. With its
centralized location, proprietary molecular technologies and state-of-the-art
facility, Viro-Med provides significant, additional capacity to support the
continued expansion of our esoteric and genomic testing business. 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. In August 2000, we acquired Los Angeles-based National Genetics
Institute, Inc., a leader in the development of PCR assays for Hepatitis C. 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: (1) markets which are not served by
the routine clinical testing laboratory and therefore are often subject to less
stringent regulatory and reimbursement constraints; and (2) 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.
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 website is located at www.labcorp.com. The information
contained on our website is not part of this prospectus.
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 (1) our governance, including, but not limited to, the composition
of our board of directors, (2) the issuance, sale and transfer of our equity
securities by us and by the selling stockholder, and (3) 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 5.23% (approximately 4.24% if the
underwriters' over-allotment option is exercised in full). For a description of
certain third-party contractual obligations of the selling stockholder
regarding the shares of our common stock it will own after the offering, see
"Selling Stockholder" below.
The selling stockholder currently has the right to designate one director
for nomination to the board of directors. Following the offering, it will no
longer have the right to designate a director. Currently, the board of
directors is comprised of seven members.
Following the offering, the selling stockholder will continue to have
demand registration rights and the benefit of various covenants given by us
with respect to transfers made by the selling stockholder under Rule 144A of
the Securities Act.
Recent Developments
Stockholder Rights Plan
We adopted a stockholder rights plan effective as of December 13, 2001
pursuant to which each common stockholder of record on December 21, 2001
received a dividend of one right for each share of common stock held. Each
right entitles the holder to purchase from us one one-hundredth of a share of a
new series of participating preferred stock at an initial purchase price of
$400. These rights will become exercisable and will detach from our common
stock if any person becomes the beneficial owner of 15% or more of our common
stock. In that event, each right will entitle the holder, other than the
acquiring person, to purchase, for the initial purchase price, shares of our
common stock having a value of twice the initial purchase price. If, following
an acquisition of 15% or more of our common stock, we are involved in certain
mergers or other business combinations, or sell or transfer more than 50% of
our assets or earning power, each right will entitle the holder to purchase,
for the initial purchase price, common stock of the other party to the
transaction having a value of twice the initial purchase price.
At any time after a person has acquired 15% or more (but before any person
has acquired more than 50%) of our common stock, we may exchange all or part of
the rights for shares of our common stock at an exchange ratio of one share of
common stock per right. We may redeem the rights at a price of $0.001 per right
at any time prior to the time that a person becomes the beneficial owner of 15%
or more of our common stock. The rights will expire on December 13, 2011,
unless earlier exchanged or redeemed.
The shares offered hereby include preferred stock purchase rights.
Financial Results for 2001
On February 13, 2002, we announced results for the year ended December 31,
2001. For the twelve-month period ended December 31, 2001, we generated net
sales of $2,199.8 million, operating income of $367.6 million, net earnings
before extraordinary loss of $182.7 million and net earnings of $179.5 million.
For the same period in 2000, we reported net sales of $1,919.3 million,
operating income of $245.6 million and net earnings of $112.1 million. The
revenue increase of 14.6 percent consists of increases of approximately 8.6
percent in volume and 6.0 percent in price. Diluted earnings per common share
before extraordinary loss were $2.59, compared to $1.61 in the 2000 period.
2
Year Ended December 31,
-----------------------
2000 2001
--------- ---------
(dollars in millions,
except per
share amounts)
(unaudited)
Statement of Operations Data:
Net sales............................................$ 1,919.3 $ 2,199.8
Cost of sales........................................ 1,152.7 1,274.2
Selling, general and administrative ................. 483.0 516.5
Amortization of intangibles and other assets ........ 33.5 41.5
Restructuring charge................................. 4.5 -
--------- ---------
Operating income..................................... 245.6 367.6
--------- ---------
Other income (expense)............................... 0.5 0.6
Termination of interest rate swap agreement.......... - (8.9)
Interest expense..................................... (38.5) (27.0)
--------- ---------
Earnings before income taxes and extraordinary loss.. 207.6 332.3
Provision for income taxes........................... (95.5) (149.6)
--------- ---------
Earnings before extraordinary loss................... 112.1 182.7
Extraordinary loss, net of tax benefit............... - (3.2)
--------- ---------
Earnings after extraordinary loss.................... 112.1 179.5
Less preferred stock dividends and accretion
of mandatorily redeemable preferred stock......... 34.6 -
--------- ---------
Net earnings attributable to common shareholders.....$ 77.5 $ 179.5
========= =========
Diluted earnings per share before extraordinary loss.$ 1.61 $ 2.59
Extraordinary loss, net of tax benefit............... - (0.05)
--------- ---------
Diluted earnings per share...........................$ 1.61 $ 2.54
========= =========
Weighted-average shares outstanding - diluted........ 48.2 70.5
========= =========
As of
December 31, 2001
-----------------
(unaudited)
Balance Sheet Data:
Cash and cash equivalents................................. $ 149.2
Accounts receivables, net................................. 365.5
Property, plant & equipment............................... 309.3
Intangible assets, net.................................... 968.5
Other assets.............................................. 137.1
---------
$ 1,929.6
=========
Total bank debt........................................... $ -
Zero coupon - subordinated notes.......................... 502.8
Other liabilities......................................... 341.4
Shareholders' equity...................................... 1,085.4
---------
$ 1,929.6
=========
3
Credit Facilities
On February 20, 2002, we entered into $300 million of new senior credit
facilities with Credit Suisse First Boston, acting as Administrative Agent, and
a group of financial institutions. The new facilities consist of a 364-day
revolving credit facility in the principal amount of $100 million and a
three-year revolving credit facility in the principal amount of $200 million.
The new facilities will be used for general corporate purposes, including
working capital, capital expenditures, funding of share repurchases and other
payments and acquisitions. Our previous credit agreement, under which no loans
were outstanding, was terminated upon the closing of the new facilities.
The terms of the new facilities include financial covenants governing
total leverage and interest coverage as well as negative covenants limiting
restricted payments, subsidiary indebtedness and certain other items customary
for investment grade-rated borrowers. The facility fee and interest rate on the
new facilities are based on our senior credit rating as determined by Standard
& Poor's, which rating was recently upgraded to BBB+ from BBB.
4
The Offering
Common Stock offered... 7,000,000 shares (7,700,000 shares if the underwriters'
over-allotment option is exercised in full)
Use of proceeds........ We will not receive any of the proceeds from the sale
of shares of our common stock offered by the selling
stockholder.
NYSE symbol............ LH
5
Summary Consolidated Financial Information
The selected 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 September 30,
2001 and for the nine-month periods ended September 30, 2000 and 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, and our quarterly report on Form 10-Q for the
nine months ended September 30, 2001. 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 nine months ended September
30, 2001 are not necessarily indicative of results of operations for the full
year.
Nine Months
Year Ended December 31, Ended September 30,
----------------------------------- ----------------------
1998 1999 2000 2000 2001
--------- --------- --------- --------- ---------
(dollars in millions, except per share amounts)
(unaudited)
Statement of Operations Data:
Net sales................................... $ 1,612.6 $ 1,698.7 $ 1,919.3 $ 1,433.3 $ 1,636.0
Gross profit................................ 563.4 629.1 766.6 581.5 700.5
Operating income ........................... 127.6 149.7 245.6(a) 198.0 290.2
Net earnings ............................... 68.8 65.4 112.1 91.2 138.7(b)
Net earnings attributable to common
shareholders............................. 24.4 15.0 77.5 56.6 138.7
Basic earnings per common share (c)......... $ 0.98 $ 0.59 $ 1.65 $ 1.43 $ 2.00
Diluted earnings per common share (c)....... $ 0.98 $ 0.58 $ 1.61 $ 1.33 $ 1.97
Other Financial Data:
Cash flows provided by operating activities. $ 125.1 $ 180.5 $ 246.7 $ 177.6 $ 252.4
Cash flows used for investing activities.... (68.6) (77.0) (150.0) (127.4) (193.3)
Cash flows used for financing activities.... (57.1) (85.8) (87.9) (74.7) (51.8)
As of
September 30,
2001
-------------
(unaudited)
Consolidated Balance Sheet Data:
Cash and cash equivalents......................................................... $ 55.5
Total assets...................................................................... 1,820.3
Total debt........................................................................ 437.1
Total shareholders' equity........................................................ 1,036.5
- -------------------
(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) In the third quarter of 2001, we recorded an extraordinary loss of $3.2
million (net of tax benefit) relating to the write-off of unamortized bank
fees associated with our term debt, which was repaid in September 2001. In
the same quarter, we recorded a one-time charge of $8.9 million relating
to a payment made to terminate an interest rate swap agreement tied to our
term loan.
(c) In May 2000, our stockholders approved a 1-for-10 reverse stock split. In
May 2001, our stockholders approved a 2-for-1 stock split which was paid
in the form of a stock dividend on June 11, 2001. As a result, basic and
diluted earnings per common share have been restated to reflect the
reverse stock split and the 2-for-1 stock split.
6
SPECIAL NOTE REGARDING FORWARD LOOKING STATEMENTS
We have made or incorporated by reference in this prospectus forward
looking statements concerning our operations, performance and financial
condition, as well as our strategic objectives. Some of these forward looking
statements can be identified by the use of forward looking words such as
"believe", "expect", "may", "will", "should", "seek", "approximately",
"intend", "plan", "estimate" or "anticipate" or the negative of those words or
other comparable terminology. These forward looking statements are subject to
various risks and uncertainties. Actual events or results may differ materially
from those currently anticipated due to a number of factors in addition to
those discussed elsewhere or incorporated by reference in this prospectus,
including:
o future changes in federal, state, local and third-party payor
regulations or policies (or in the interpretation of current
regulations) affecting governmental and third-party reimbursement for
clinical laboratory testing;
o adverse results from investigations of clinical laboratories by the
government, which may include significant monetary damages and/or
exclusion from the Medicare and Medicaid programs;
o loss or suspension of a license or imposition of a fine or penalties
under, or future changes in, the law or regulations of the Clinical
Laboratory Improvement Act of 1967, and the Clinical Laboratory
Improvement Amendments of 1988, or those of Medicare, Medicaid or
other federal, state or local agencies;
o failure to comply with the Federal Occupational Safety and Health
Administration requirements and the Needlestick Safety and Prevention
Act which may result in penalties and loss of licensure;
o increased competition, including price competition;
o changes in payor mix, including an increase in capitated managed-cost
health care;
o our failure to obtain and retain new customers and alliance partners,
or a reduction in tests ordered or specimens submitted by existing
customers;
o our failure to integrate newly acquired businesses and the cost
related to this integration;
o adverse results in litigation matters;
o our ability to attract and retain experienced and qualified
personnel; and
o failure to maintain our days sales outstanding levels.
We are under no duty to update any of the forward-looking statements after
the date of this prospectus to conform them to actual results.
7
PRICE RANGE OF COMMON STOCK AND DIVIDEND HISTORY
Our common stock trades on The New York Stock Exchange under the symbol
"LH."
The following table sets forth for the calendar periods indicated the high
and low intraday sales prices for our common stock reported on the NYSE
Composite Tape:
High Low
--------- ---------
2000
1st Quarter.....................................$ 23.44 $ 15.63
2nd Quarter..................................... 40.50 19.69
3rd Quarter..................................... 66.25 38.13
4th Quarter..................................... 91.50 54.13
2001
1st Quarter.....................................$ 87.50 $ 49.75
2nd Quarter..................................... 82.50 56.45
3rd Quarter..................................... 91.35 66.84
4th Quarter..................................... 90.00 73.00
2002
1st Quarter (through March 5, 2002).............$ 88.80 $ 76.30
The last reported sale price on The New York Stock Exchange for our common
stock was $84.90 per share on March 5, 2002.
In May 2000, our stockholders approved a 1-for-10 reverse stock split. In
May 2001, our stockholders approved a 2-for-1 stock split which was paid in the
form of a stock dividend on June 11, 2001. The above reported sales prices
reflect such reverse stock split and 2-for-1 stock split.
In order to increase our flexibility with respect to our acquisition
strategy, it is currently our policy not to pay dividends on our common stock.
In addition, our revolving credit facilities place certain limits on the
payment of dividends.
USE OF PROCEEDS
We will not receive any of the proceeds from the sale of the shares of our
common stock offered by the selling stockholder.
8
SELLING STOCKHOLDER
The selling stockholder intends to dispose of the shares of our common
stock as described under the caption "Underwriting" below. As of March 4, 2002,
Roche Holdings, Inc. owned 10,705,074 shares of our common stock (approximately
15.11% of our common stock outstanding). Following the offering, its ownership
of our common stock will be approximately 5.23% (approximately 4.24% if the
over-allotment option is exercised in full).
The following table sets forth certain information regarding the
beneficial ownership of our common stock by the selling stockholder, and as
adjusted to give effect to the sale of the shares of our common stock covered
by this prospectus.
Shares Beneficially Owned
Shares After Offering (1)
Beneficially -------------------------
Owned Prior to Number of Shares Number of
Name of Selling Stockholder Offering Being Offered (1) Shares (2) Percent
- --------------------------- -------------- ----------------- ---------- -------
Roche Holdings, Inc.
One Commerce Center 10,705,074 7,000,000 3,705,074 5.23%
Suite 1050
Wilmington, Delaware 19801
- -------------------
(1) Does not include the over-allotment shares. If the underwriters exercise
their over-allotment option in full, the selling stockholder will
beneficially own 3,005,074 shares of our common stock or approximately
4.24% after the offering.
(2) Of these remaining shares owned by the selling stockholder, 3,005,074
shares are subject to certain third-party call options granted between
November 2001 and January 2002. These call options permit an option holder
to purchase our shares from the selling stockholder immediately prior to
the expiration of these call options on specified dates between June 21,
2002 and November 15, 2002. If these call options are exercised in full
and the underwriters' over-allotment option is also exercised in full,
then the selling stockholder will no longer own any shares of our common
stock as of November 15, 2002.
9
UNDERWRITING
Under the terms and subject to the conditions contained in an underwriting
agreement dated March , 2002, the selling stockholder has agreed to sell to the
underwriters named below, for whom Credit Suisse First Boston Corporation, UBS
Warburg LLC, Banc of America Securities LLC, Deutsche Banc Alex. Brown Inc.,
Merrill Lynch, Pierce, Fenner & Smith Incorporated and U.S. Bancorp Piper
Jaffray Inc. are acting as representatives, the following respective numbers of
shares of our common stock:
Number
Underwriting of Shares
- ------------ ---------
Credit Suisse First Boston Corporation...............................
UBS Warburg LLC......................................................
Banc of America Securities LLC.......................................
Deutsche Banc Alex. Brown Inc........................................
Merrill Lynch, Pierce, Fenner & Smith
Incorporated...........................................
U.S. Bancorp Piper Jaffray Inc.......................................
----------
Total................................................................ 7,000,000
==========
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 700,000 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 our 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
representatives 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 offer, sale, pledge, disposition or filing,
without the prior written consent of Credit Suisse First Boston Corporation for
a period of 45 days after the date of this prospectus. This agreement does not
apply to (1) grants of employee stock options under the terms of our employee
stock option plans in effect on the date hereof, (2) issuances of securities
through the exercise of any employee stock options outstanding
10
on the date hereof, (3) issuances of securities under our dividend reinvestment
plan or (4) issuances of shares of our common stock upon any conversion of our
outstanding convertible notes due 2021.
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 that 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
for a period of 90 days after the date of this prospectus. However, the
foregoing will not apply to the 700,000 shares of our common stock owned by the
selling stockholder that are covered by the underwriters' over-allotment
option, if this option is not exercised.
We and the selling stockholder have agreed to indemnify the underwriters
against liabilities under the Securities Act, or to 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.
o Stabilizing transactions permit bids to purchase the underlying
security so long as the stabilizing bids do not exceed a specified
maximum.
o 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.
o Syndicate covering transactions involve purchases of shares of our
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.
o 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 our
common stock. As a result the price of our 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 the websites
maintained by one or more of the underwriters, or selling group members, if
any, participating in this offering. The representatives may agree to allocate
11
a number of shares to underwriters and selling group members for sale to their
online brokerage account holders. Internet distributions will be allocated by
the underwriters and selling group members that will make internet
distributions on the same basis as other allocations.
12
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 shares of our 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:
o 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;
o where required by law, that the purchaser is purchasing as principal
and not as agent; and
o the purchaser has reviewed the text above under the caption "Resale
Restrictions."
Rights of Action - Ontario Purchasers Only
Under Ontario securities legislation, a purchaser who purchases a security
offered by this prospectus during the period of distribution will have a
statutory right of action for damages, or while still the owner of the shares,
for rescission against us and the selling stockholder in the event that this
prospectus contains a misrepresentation. A purchaser will be deemed to have
relied on the misrepresentation. The right of action for damages is exercisable
not later than the earlier of 180 days from the date the purchaser first had
knowledge of the facts giving rise to the cause of action and three years from
the date on which payment is made for the shares. The right of action for
rescission is exercisable not later than 180 days from the date on which
payment is made for the shares. If a purchaser elects to exercise the right of
action for rescission, the purchaser will have no right of action for damages
against us or the selling stockholder. In no case will the amount recoverable
in any action exceed the price at which the shares were offered to the
purchaser and if the purchaser is shown to have purchased the securities with
knowledge of the misrepresentation, we and the selling stockholder will have no
liability. In the case of an action for damages, we and the selling stockholder
will not be liable for all or any portion of the damages that are proven to not
represent the depreciation in value of the shares as a result of the
misrepresentation relied upon. These rights are in addition to, and without
derogation from, any other rights or remedies available at law to an Ontario
purchaser. The foregoing is a summary of the rights available to an Ontario
purchaser. Ontario purchasers should refer to the complete text of the relevant
statutory provisions.
Enforcement of Legal Rights
All of our directors and officers as well as the experts named herein and
the selling stockholder 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 us or those persons. All or a substantial portion of our assets and
the assets of those persons may be located outside of Canada and, as a result,
it may not be possible to satisfy a judgment against us or those persons in
Canada or to enforce a judgment obtained in Canadian courts against us or those
persons outside of Canada.
Taxation and Eligibility for Investment
Canadian purchasers of shares 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.
13
LEGAL MATTERS
Certain legal matters with respect to the validity of the shares of our
common stock offered hereby will be passed upon for us by Bradford T. Smith,
Executive Vice President, Chief Legal Counsel and Secretary. Mr. Smith is our
full-time employee and officer, and beneficially owns 164,710 shares of our
common stock. Certain other legal matters will be passed upon for us and 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 and financial statement schedule
incorporated in this prospectus by reference to the Annual Report on Form 10-K
of Laboratory Corporation of America Holdings as of 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
auditing and accounting.
14
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and special reports, proxy statements and other
information with the SEC under the Exchange Act. You may read and copy this
information at the following locations of the SEC:
Public Reference Room Northeast Regional Office Midwest Regional Office
450 Fifth Street, N.W. 233 Broadway 500 West Madison Street
Room 1024 New York, NY 10279 Suite 1400
Washington, D.C. 20549 Chicago, IL 60661
You may obtain information on the operation of the Public Reference Room
and the above regional offices by calling the SEC at 1-800-SEC-0330. You may
also obtain copies of the information by mail from the Public Reference Section
of the SEC, 450 Fifth Street, N.W., Room 1024, Washington, DC 20549, at
prescribed rates. The SEC also maintains a website that contains reports, proxy
statements and other information about issuers, like LabCorp, who file
electronically with the SEC. The address of the site is www.sec.gov.
You can also inspect reports, proxy statements and other information about
us at the offices of The New York Stock Exchange, 20 Broad Street, New York,
New York 10005.
We have filed with the SEC a registration statement under the Securities
Act to register the shares of our 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 shares of our common stock offered by 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 Exchange Act, until all of
the shares of our common stock offered under this prospectus are sold.
LabCorp SEC Filings (File No. 1-11353) Period
- -------------------------------------- ------
Annual Report on Form 10-K......................Fiscal year ended December 31, 2000
Quarterly Report on Form 10-Q...................Quarter ended March 31, 2001
Quarterly Report on Form 10-Q...................Quarter ended June 30, 2001
Quarterly Report on Form 10-Q...................Quarter ended September 30, 2001
Current Report on Form 8-K......................Filed February 14, 2001 containing the press release regarding
results for the quarter and year ended December 31, 2000
Current Report on Form 8-K......................Filed March 26, 2001
Current Report on Form 8-K......................Filed April 23, 2001 containing the press release regarding
results for the quarter ended March 31, 2001
Current Report on Form 8-K......................Filed May 1, 2001
Current Report on Form 8-K......................Filed May 11, 2001
Current Report on Form 8-K......................Filed June 4, 2001
Current Report on Form 8-K......................Filed June 12, 2001 containing the amended and restated
certificate of incorporation
Current Report on Form 8-K......................Filed July 11, 2001
Current Report on Form 8-K......................Filed July 23, 2001 containing the press release regarding
results for the quarter ended June 30, 2001
Current Reports on Form 8-K.....................Filed September 5, 2001
Current Reports on Form 8-K.....................Filed September 6, 2001 and each containing the press
release regarding the private placement of the LYONs
Current Report on Form 8-K......................Filed September 19, 2001
15
Current Report on Form 8-K......................Filed September 21, 2001
Current Report on Form 8-K......................Filed October 22, 2001 containing the press release regarding
results for the quarter ended September 30, 2001
Current Report on Form 8-K......................Filed December 4, 2001
Current Report on Form 8-K......................Filed December 6, 2001
Current Report on Form 8-K......................Filed December 13, 2001
Current Report on Form 8-K......................Filed January 16, 2002
Current Report on Form 8-K......................Filed February 13, 2002 containing the press release regarding
results for the quarter and year ended December 31, 2001
Current Report on Form 8-K .....................Filed February 22, 2002
Current Report on Form 8-K......................Filed February 26, 2002
Registration Statement on Form 8-B, as amended on
April 27, 1995...............................Filed July 1, 1994
The information required by Part III, Items 10 through
13, of Form 10-K is incorporated by reference to our
definitive proxy statement for our 2000 annual
meeting of stockholders......................Filed April 25, 2001
Registration Statement on Form 8-A..............Filed December 21, 2001
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 shares of our 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 writing or calling
us at the following address or telephone number:
Laboratory Corporation of America Holdings
358 South Main Street
Burlington, North Carolina 27215
(336) 229-1127
Attention: Bradford T. Smith
Exhibits to the filings will not be sent, however, unless those exhibits
have been specifically incorporated by reference in this document.
16
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution
We are paying all of the selling stockholder's expenses related to this
offering. The following table sets forth the approximate amount of fees and
expenses payable by us in connection with this registration statement and the
shares of our common stock registered hereby. Except for the SEC registration
fee and the NASD filing fee, all of these fees and expenses have been
estimated.
SEC registration fee..................................................$ 62,411
NASD filing fee....................................................... 30,500
Legal fees and expenses............................................... 250,000
Accounting fees and expenses.......................................... 30,000
Roadshow expenses..................................................... 258,100
Miscellaneous......................................................... 18,989
----------
TOTAL $ 650,000
==========
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 of our directors and officers
may be indemnified by us 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 or she is involved by reason
of the fact that he or she is or was our director or officer; provided that he
or she acted in good faith and in a manner that he or she reasonably believed
to be in or not opposed to our best interest; and, with respect to any criminal
action or proceeding, that he or she had no reasonable cause to believe that
his or her conduct was unlawful. If the legal proceeding, however, is by or in
the right of LabCorp, the director or officer may not be indemnified in respect
of any claim, issue, or matter as to which he or she shall have been adjudged
to be liable for negligence or misconduct in the performance of his or her duty
to us unless a court determines otherwise.
Article FIFTH (4) of our Amended and Restated Certificate of Incorporation
provides that no director shall be personally liable to us or our stockholders
for monetary damages for any breach of his or her fiduciary duty as director;
provided, however, that this clause shall not apply to any liability of a
director (1) for any breach of the director's duty of loyalty to us or our
stockholders, (2) for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law, (3) under Section 174 of
the Delaware Corporation Law or (4) for any transaction from which the director
derived an improper personal benefit. In addition, the provisions of Article
VII of our by-laws provide that it shall indemnify persons entitled to be
indemnified to the fullest extent permitted by the Delaware Corporation Law.
We maintain policies of officers' and directors' liability insurance in
respect of acts or omissions of (1) our current and former officers and
directors, (2) our subsidiaries and (3) "constituent" companies that have been
merged with us.
II-1
Item 16. Exhibits and Financial Statement Schedules
Exhibit No. Document
- ---------- -------
1.1 Form of Underwriting Agreement.
5.1 Opinion of Bradford T. Smith, Esq.
23.1 Consent of Bradford T. Smith, Esq. (included in Exhibit 5.1).
23.2 Consent of PricewaterhouseCoopers LLP.
24.1 Power of Attorney.*
- -----------------
* Previously filed.
Item 17. Undertakings
(a) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of
the registrant's annual report pursuant to Section 13(a) or Section
15(d) of the Exchange Act that is incorporated by reference in this
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 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, 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, 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, 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 No. 2 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 March 6, 2002.
LABORATORY CORPORATION OF AMERICA HOLDINGS
By: /s/ Bradford T. Smith, Esq.
--------------------------------------
Name: Bradford T. Smith, Esq.
Title: Executive Vice President, Chief
Legal Counsel and Secretary
Pursuant to the requirements of the Securities Act, this Amendment No. 2
to the registration statement has been signed by the following persons in the
capacities indicated on March 6, 2002:
Signature Title
--------- -----
* Chairman of the Board, President,
- --------------------------- Chief Executive Officer and Director
Thomas P. Mac Mahon
/s/ Bradford T. Smith Executive Vice President,
- --------------------------- Chief Legal Counsel and Secretary
Bradford T. Smith
* Executive Vice President,
- --------------------------- Chief Financial Officer and Treasurer
Wesley R. Elingburg
* Director
- ---------------------------
Jean-Luc Belingard
* Director
- ---------------------------
Wendy E. Lane
* Director
- ---------------------------
Robert E. Mittelstaedt, Jr.
Signature Title
--------- -----
* Director
- ---------------------------
James B. Powell
* Director
- ---------------------------
David B. Skinner
* Director
- ---------------------------
Andrew G. Wallace
* The undersigned hereby signs this Amendment No. 2 to the registration
statement on Form S-3 on behalf of each of the indicated persons for whom
he is attorney-in-fact pursuant to a power of attorney previously filed.
By: /s/ Bradford T. Smith
------------------------------------------
Name: Bradford T. Smith
Title: Executive Vice President,
Chief Legal Counsel and Secretary
EXHIBIT INDEX
Exhibit No. Document
- ----------- --------
1.1 Form of Underwriting Agreement.
5.1 Opinion of Bradford T. Smith, Esq.
23.1 Consent of Bradford T. Smith, Esq. (included in Exhibit 5.1).
23.2 Consent of PricewaterhouseCoopers LLP.
24.1 Power of Attorney.*
-----------------
* Previously filed.
EXHIBIT 1.1
7,000,000
Laboratory Corporation of America Holdings
Common Stock, par value $.10 per share
UNDERWRITING AGREEMENT
March 6, 2002
CREDIT SUISSE FIRST BOSTON CORPORATION
UBS WARBURG LLC
BANC OF AMERICA SECURITIES LLC
DEUTSCHE BANC ALEX. BROWN INC.
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 7,000,000 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
700,000 additional outstanding shares ("Optional Securities") of the Company's
Securities as set forth below. 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. 333-83108) 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 (the "initial registration statement"). If the
Company does not propose to amend the initial registration statement or if
any post-effective amendment to 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 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. For purposes of this Agreement,
"Effective Time" with respect to the initial 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 a
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. "Effective Date" with respect to the initial registration
statement 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 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 Initial Registration Statement is also hereinafter referred to as the
"Registration Statement". The form of prospectus relating 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 the 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, and (B) on the
date of this Agreement, the Initial Registration Statement conforms, and
at the time of filing of the Prospectus pursuant to Rule 424(b), the
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
do not apply to statements in or omissions from the Registration Statement
or the Prospectus (i) 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 or (ii) relating to the
call option arrangements described in footnote 2 to the selling
stockholder table set forth under the caption "Selling Stockholder" in the
Prospectus.
(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
2
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").
(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,
and are fully paid and nonassessable and 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. and the Registration Rights Agreement dated as of
September 11, 2001 (the "Registration Rights Agreement") between the
Company and Merrill Lynch, Pierce, Fenner & Smith Incorporated, 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 with the securities registered pursuant to the
Registration Statement or with 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.
3
(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 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
4
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 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 other), 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 or
conversion of outstanding securities described in the Prospectus, 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.
(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
5
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,
and (B) on the date of this Agreement, the Initial Registration Statement
conforms, and at the time of filing of the Prospectus pursuant to Rule
424(b), the 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 the
Registration Statement or the Prospectus are based on written information
furnished to the Company by the Selling Stockholder specifically for use
therein; it being understood that the description of the call option
arrangements described in footnote 2 to the selling stockholder table set
forth under the caption "Selling Stockholder" in the Prospectus
constitutes written information furnished to the Company by the Selling
Stockholder.
(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. 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 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 March 11, 2002, 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 Firm Securities so to be
delivered will be registered in such names and in such denominations as CSFBC
requests.
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
6
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 above office of Skadden, Arps, Slate,
Meagher & Flom LLP. The Optional Securities being purchased on each Optional
Closing Date will be registered in such names and such denominations as CSFBC
requests upon reasonable notice prior to 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 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).
(ii) The Company will advise CSFBC promptly of any proposal to amend
or supplement the initial registration statement as filed or the related
prospectus or the Initial Registration Statement 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 the Registration Statement (if its Effective Time
is subsequent to the execution and delivery of this Agreement) and of any
amendment or supplementation of the Registration Statement or the
Prospectus and of the institution by the Commission of any stop order
proceedings in respect of the 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.
7
(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 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.
(v) The Company will furnish to the Representatives copies of the
Registration Statement (one 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 Company 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 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.
(viii) For a period of 45 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 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
8
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
through the exercise of any employee stock options outstanding on the date
hereof, issuances of Securities pursuant to the Company's dividend
reinvestment plan or issuances of Securities upon any conversion of the
Company's outstanding convertible notes due 2021.
(ix) The Company will pay all expenses incident to the performance of
the obligations of the Selling Stockholder and the obligations of the
Company under this Agreement, 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, the filing fee incident to the review by the National Association
of Securities Dealers, Inc. of the offering 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, and expenses
incurred in distributing preliminary prospectuses and the Prospectus
(including any amendments and supplements thereto) to the Underwriters.
(b) The Selling Stockholder agrees with the several Underwriters and the
Company that:
(i) The Selling Stockholder will pay for any transfer taxes on the
sale of the Offered Securities to the Underwriters.
(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 shares of the Securities of the Company or securities
convertible into or exchangeable or exercisable for any shares of
Securities, enter into a transaction which would have the same effect, or
enter into any swap, hedge or other arrangement that transfers, in whole
or part, any of the economic consequences of ownership of the Securities,
whether any such aforementioned transaction is to be settled by delivery
of the Securities or such other securities, in cash or otherwise, or
publicly disclose the intention to make any such offer, sale, pledge or
disposition, or enter into any such transaction, swap, hedge or other
arrangement, without, in each case, the prior written consent of CSFBC
provided, however, the foregoing will not apply to the 700,000 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
9
provisions hereof, to the performance 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 Statement 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:
(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) the unaudited consolidated net sales, net operating
income, net income and net income per share amounts for the
nine-month periods ended September 30, 2000, and September 30,
2001, included in the Prospectus do not agree with the amounts
set forth in the unaudited consolidated financial statements for
those same periods or were not determined on a basis
substantially consistent with that of the corresponding amounts
in the audited statements of income;
(C) 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
10
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
(D) 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 Statement (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 Statement" 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, and (ii)
"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 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 the 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
11
(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;
(v) any major disruption of settlements of securities or clearance services in
the United States; or (vi) 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, Chief Legal Counsel 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
jurisdic tions 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, 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 descrip tion 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 and the Registration
Rights 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
with the securities registered pursuant to the Registration Statement or
with 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
12
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 in all material respects 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 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;
(ii) To the best of the knowledge of such counsel, no stop order
suspending the effectiveness of the Registration Statement has been issued
and no proceedings for that purpose have been instituted or are pending or
contemplated by the Commission; and
(iii) This Agreement has been duly authorized, executed and delivered
by the Company.
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 counsel, and with certain officers and employees of,
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 as of its effective
date or the Prospectus as of its date (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
13
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.
Such counsel shall also state that they have been advised orally by the
Commission that the Registration Statement was declared effective on March ___,
2002 and that the Prospectus was filed with the Commission pursuant to Rule
424(b) on the date specified therein.
(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 corporate 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 Stock holder as provided herein, delivery of such Offered
Securities, as directed by the Underwrit ers, 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 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 Under writers 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
Registration Statements, 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.
14
(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; and, subsequent to the
dates 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.
(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.
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 other
wise, 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 (i) 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
15
information described as such in subsection (c) below or (ii) that relates to
the call option arrange ments described in footnote 2 to the selling
stockholder table set forth under the caption "Selling Stockholder" in the
Prospectus.
(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 Underwrit ers by the Selling Stockholder, (it being understood
that the description of the call option arrange ments described in footnote 2
to the selling stockholder table set forth under the caption "Selling
Stockholder" in the Prospectus constitutes written information furnished to the
Company 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 Company, its directors and officers and each person, if any, who
controls the Company within the meaning of Section 15 of the Act, and the
Selling Stockholder and each person, if any, who controls the Selling
Stockholder within the meaning of Section 15 of the Act against any losses,
claims, damages or liabilities to which the Company, its directors and officers
and each person, if any, who controls the Company within the meaning of Section
15 of the Act or the Selling Stockholder and each person, if any, who controls
the Selling Stockholder within the meaning of Section 15 of the Act 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
"Underwrit ing"; the over-allotments and stabilizing descriptions appearing in
the ninth paragraph under the caption "Underwriting"; and the discussion of
internet distributions appearing in the eleventh paragraph under the caption
"Underwriting".
(d) Promptly after receipt by an indemnified party under this Section of
notice of the
16
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 in demnifying 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, ex cept 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 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 Under writers 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 contri bute 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 state ment 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
17
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 Under writer 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 the
Registration Statement and to each person, if any, who controls the Company or
the Selling Stockholder 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 Underwrit ers 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 obli gated 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"
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 or its officers, 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 de livery 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 Company 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
Underwrit ers 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
18
occurrence of any event specified in clause (iii), (iv), (v) or (vi) of Section
6(c), the Company 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: Chief
Legal 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: Domenico Scala;
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 Agree ment taken by the Representatives
jointly 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.
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.
19
If the foregoing is in accordance with the Representatives' understanding
of our agreement, kindly sign and return to the Company and the Selling
Stockholder 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: Domenico Scala
Title: Authorized Officer
LABORATORY CORPORATION OF
AMERICA HOLDINGS
By:
----------------------------------------
Name: Bradford T. Smith
Title: Executive Vice President,
Chief Legal Counsel and Secretary
CREDIT SUISSE FIRST BOSTON CORPORATION
UBS WARBURG LLC
BANC OF AMERICA SECURITIES LLC
DEUTSCHE BANC ALEX. BROWN INC.
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: Joseph D. Fashano
Title: Director
SCHEDULE A
Number of
Firm Securities
Underwriter to be Purchased
----------- ---------------
Credit Suisse First Boston Corporation
UBS Warburg LLC
Banc of America Securities LLC
Deutsche Banc Alex. Brown Inc.
Merrill Lynch, Pierce, Fenner & Smith Incorporated
U.S. Bancorp Piper Jaffray Inc.,
Total................ 7,000,000
=========
21
EXHIBIT 5.1
March 6, 2002
Laboratory Corporation of America Holdings
358 South Main Street
Burlington, North Carolina 27215
Ladies and Gentlemen:
I am the Executive Vice President, Chief Legal Counsel and Secretary of
Laboratory Corporation of America Holdings, a Delaware corporation (the
"Company"), and I offer this opinion in connection with the filing of a
Registration Statement (the "Registration Statement") on Form S-3 under the
Securities Act of 1933, as amended, relating to up to 7,700,000 shares of the
Company's common stock, par value $0.10 per share (the "Common Stock").
I have examined originals or copies, certified or otherwise identified to
my satisfaction, of such documents, corporate records, certificates of public
officials and other instruments as I have deemed necessary or advisable for the
purposes of this opinion.
Upon the basis of the foregoing, I am of the opinion that the shares of
Common Stock to be sold pursuant to the Registration Statement were duly
authorized by all necessary corporate action of the Company and such shares
were legally issued and are fully paid and nonassessable.
I consent to the filing of this opinion as Exhibit 5.1 to the Registration
Statement.
Very truly yours,
/s/ Bradford T. Smith, Esq.
---------------------------------
Bradford T. Smith, Esq.
Executive Vice President,
Chief Legal Counsel and Secretary
EXHIBIT 23.2
Consent of Independent Accountants
We hereby consent to the incorporation by reference in this Amendment No. 2 to
the 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
Charlotte, North Carolina
March 5, 2002