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__________ Shares
eRESEARCHTECHNOLOGY, INC.
Common Stock
UNDERWRITING AGREEMENT
__________, 2000
SG COWEN SECURITIES CORPORATION
Prudential Securities Incorporated
As representatives of the
several Underwriters
named in Schedule I hereto
c/o SG Cowen Securities Corporation
1221 Avenue of the Americas
14th Floor
New York, NY 10020
Dear Sirs:
eResearchTechnology, Inc., a Delaware corporation (the "Company"),
proposes to issue and sell ____________ shares of its Common Stock, $0.01 par
value per share (the "Firm Shares"), to the several underwriters named in
Schedule I hereto (the "Underwriters"). The Company also proposes to issue and
sell to the several Underwriters not more than an additional _______ shares of
its Common Stock, $0.01 par value per share (the "Additional Shares"), if
requested by the Underwriters as provided in Section 2 hereof. The Firm Shares
and the Additional Shares are hereinafter referred to collectively as the
"Shares". The shares of common stock of the Company to be outstanding after
giving effect to the sales contemplated hereby are hereinafter referred to as
the "Common Stock".
SECTION 1. Registration Statement and Prospectus. The Company has
prepared and filed with the Securities and Exchange Commission (the
"Commission") in accordance with the provisions of the Securities Act of 1933,
as amended, and the rules and regulations of the Commission thereunder
(collectively, the "Act"), a registration statement on Form S-1, including a
prospectus, relating to the Shares. The registration statement, as amended at
the time it became effective, including the information (if any)
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deemed to be part of the registration statement at the time of effectiveness
pursuant to Rule 430A under the Act, is hereinafter referred to as the
"Registration Statement"; and the prospectus in the form first used to confirm
sales of Shares is hereinafter referred to as the "Prospectus". If the Company
has filed or is required pursuant to the terms hereof to file a registration
statement pursuant to Rule 462(b) under the Act registering additional shares of
Common Stock (a "Rule 462(b) Registration Statement"), then, unless otherwise
specified, any reference herein to the term "Registration Statement" shall be
deemed to include such Rule 462(b) Registration Statement.
SECTION 2. Agreements to Sell and Purchase and Lock-Up Agreements. On
the basis of the representations and warranties contained in this Agreement, and
subject to its terms and conditions, the Company agrees to issue and sell, and
each Underwriter agrees, severally and not jointly, to purchase from the Company
at a price per Share of $______ (the "Purchase Price") the number of Firm Shares
set forth opposite the name of such Underwriter in Schedule I hereto.
On the basis of the representations and warranties contained in this
Agreement, and subject to its terms and conditions, the Company agrees to issue
and sell the Additional Shares and the Underwriters shall have the right to
purchase, severally and not jointly, up to _______ Additional Shares from the
Company at the Purchase Price. Additional Shares may be purchased solely for the
purpose of covering over-allotments made in connection with the offering of the
Firm Shares. The Underwriters may exercise their right to purchase Additional
Shares in whole or in part from time to time by giving written notice thereof to
the Company within 30 days after the date of this Agreement. You shall give any
such notice on behalf of the Underwriters and such notice shall specify the
aggregate number of Additional Shares to be purchased pursuant to such exercise
and the date for payment and delivery thereof, which date shall be a business
day (i) no earlier than two business days after such notice has been given (and,
in any event, no earlier than the Closing Date (as hereinafter defined)) and
(ii) no later than ten business days after such notice has been given. If any
Additional Shares are to be purchased, each Underwriter, severally and not
jointly, agrees to purchase from the Company the number of Additional Shares
(subject to such adjustments to eliminate fractional shares as you may
determine) which bears the same proportion to the total number of Additional
Shares to be purchased from the Company as the number of Firm Shares set forth
opposite the name of such Underwriter in Schedule I bears to the total number of
Firm Shares.
The Company hereby agrees not to (i) offer, pledge, sell, contract to
sell, sell any option or contract to purchase, purchase any option or contract
to sell, grant any option, right or warrant to purchase, or otherwise transfer
or dispose of, directly or indirectly, any shares of Common Stock or any
securities convertible into or exercisable or exchangeable for Common Stock or
(ii) enter into any swap or other arrangement that transfers all or a portion of
the economic consequences associated with the ownership of any Common Stock
(regardless of whether any of the transactions described in clause (i) or (ii)
is to be settled by the delivery of Common Stock, or such other securities, in
cash or otherwise), except to the Underwriters pursuant to this Agreement, for a
period of 180 days after the date of the Prospectus without the prior written
consent of SG Cowen Securities
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Corporation ("SG Cowen"). Notwithstanding the foregoing, during such period (i)
the Company may grant stock options pursuant to the Company's existing stock
option plan, (ii) the Company may issue shares of Common Stock upon the exercise
of an option or warrant or the conversion of a security outstanding on the date
hereof, (iii) the Company may issue a warrant to Communicade Inc. as
contemplated in the Series A Preferred Stock Purchase Agreement dated as of
March 24, 2000 between the Company, Premier Research Worldwide, Ltd. and
Communicade Inc. and issue shares of Common Stock upon the exercise of such
warrant and (iv) the Company may issue shares of Common Stock and other
securities convertible into or exchangeable for shares of Common Stock in
connection with acquisitions (including asset acquisitions) and strategic
partner relationships provided that the recipients thereof agree in writing to
be bound by the restrictions set forth in the immediately preceding sentence.
The Company also agrees that for a period of 180 days after the date of the
Prospectus, without the prior written consent of SG Cowen, the Company will not
accelerate the vesting schedule of any stock options currently outstanding other
than in connection with a transaction resulting in a change in control of the
Company. The Company also agrees not to file any registration statement (other
than a registration statement on Form S-8 registering Common Stock issuable
under the Company's existing stock option plan) with respect to any shares of
Common Stock or any securities convertible into or exercisable or exchangeable
for Common Stock for a period of 180 days after the date of the Prospectus
without the prior written consent of SG Cowen. The Company shall, prior to or
concurrently with the execution of this Agreement, deliver an agreement executed
by (i) each of the directors and officers of the Company and (ii) each
stockholder or warrantholder listed on Annex I hereto to the effect that such
person will not, during the period commencing on the date such person signs such
agreement and ending 180 days after the date of the Prospectus, without the
prior written consent of SG Cowen, (A) engage in any of the transactions
described in the first sentence of this paragraph or (B) made any demand for, or
exercise any right with respect to, the registration of any shares of Common
Stock or any securities convertible into or exercisable or exchangeable for
Common Stock.
As part of the offering contemplated by this Agreement, SG Cowen has
agreed to reserve, of the Shares set forth opposite its name on the Schedule I
to this Agreement, up to _____________ shares, for sale to the Company's
employees, officers, and directors and other parties associated with the Company
(collectively, "Participants"), as set forth in the Prospectus under the heading
"Underwriting" (the "Directed Share Program"). The Shares to be sold by SG Cowen
pursuant to the Directed Share Program (the "Directed Shares") will be sold by
SG Cowen pursuant to this Agreement at the public offering price. Any Directed
Shares not orally confirmed for purchase by any Participants by the end of the
business day on which this Agreement is executed will be offered to the public
by SG Cowen as set forth in the Prospectus.
SECTION 3. Terms of Public Offering. The Company is advised by you that
the Underwriters propose (i) to make a public offering of their respective
portions of the Shares as soon after the execution and delivery of this
Agreement as in your judgment is advisable and (ii) initially to offer the
Shares upon the terms set forth in the Prospectus.
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SECTION 4. Delivery and Payment. The Shares shall be represented by
definitive certificates and shall be issued in such authorized denominations and
registered in such names as SG Cowen shall request no later than two business
days prior to the Closing Date or the applicable Option Closing Date (as defined
below), as the case may be. The Company shall deliver the Shares, with any
transfer taxes thereon duly paid by the respective Sellers, to SG Cowen through
the facilities of The Depository Trust Company ("DTC"), for the respective
accounts of the several Underwriters, against payment to the Company of the
Purchase Price therefore by wire transfer of Federal or other funds immediately
available in New York City. The certificates representing the Shares shall be
made available for inspection not later than 9:30 A.M., New York City time, on
the business day prior to the Closing Date or the applicable Option Closing
Date, as the case may be, at the office of DTC or its designated custodian (the
"Designated Office"). The time and date of delivery and payment for the Firm
Shares shall be 9:00 A.M., New York City time, on ________, 2000 or such other
time on the same or such other date as SG Cowen and the Company shall agree in
writing. The time and date of delivery for the Firm Shares are hereinafter
referred to as the "Closing Date". The time and date of delivery and payment for
any Additional Shares to be purchased by the Underwriters shall be 9:00 A.M.,
New York City time, on the date specified in the applicable exercise notice
given by you pursuant to Section 2 or such other time on the same or such other
date as SG Cowen and the Company shall agree in writing. The time and date of
delivery for any Additional Shares are hereinafter referred to as an "Option
Closing Date".
The documents to be delivered on the Closing Date or any Option Closing
Date on behalf of the parties hereto pursuant to Section 8 of this Agreement
shall be delivered at the offices of Duane, Morris & Heckscher LLP, One Liberty
Place, Philadelphia, Pennsylvania 19103-7396 and the Shares shall be delivered
at the Designated Office, all on the Closing Date or such Option Closing Date,
as the case may be.
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SECTION 5. Agreements of the Company. The Company agrees with you:
(a) To advise you promptly and, if requested by you, to
confirm such advice in writing, (i) of any request by the Commission for
amendments to the Registration Statement or amendments or supplements to the
Prospectus or for additional information, (ii) of the issuance by the Commission
of any stop order suspending the effectiveness of the Registration Statement or
of the suspension of qualification of the Shares for offering or sale in any
jurisdiction, or the initiation of any proceeding for such purposes, (iii) when
any amendment to the Registration Statement becomes effective, (iv) if the
Company is required to file a Rule 462(b) Registration Statement after the
effectiveness of this Agreement, when the Rule 462(b) Registration Statement has
become effective and (v) of the happening of any event during the period
referred to in Section 5(d) below which makes any statement of a material fact
made in the Registration Statement or the Prospectus untrue or which requires
any additions to or changes in the Registration Statement or the Prospectus in
order to make the statements therein not misleading. If at any time the
Commission shall issue any stop order suspending the effectiveness of the
Registration Statement, the Company will use its best efforts to obtain the
withdrawal or lifting of such order at the earliest possible time.
(b) To furnish to you five (5) signed copies of the
Registration Statement as first filed with the Commission and of each amendment
to it, including all exhibits, and to furnish to you and each Underwriter
designated by you such number of conformed copies of the Registration Statement
as so filed and of each amendment to it, without exhibits, as you may reasonably
request.
(c) To prepare the Prospectus, the form and substance of which
shall be satisfactory to you, and to file the Prospectus in such form with the
Commission within the applicable period specified in Rule 424(b) under the Act;
during the period specified in Section 5(d) below, not to file any further
amendment to the Registration Statement and not to make any amendment or
supplement to the Prospectus of which you shall not previously have been advised
or to which you shall reasonably object after being so advised; and, during such
period, to prepare and file with the Commission, promptly upon your reasonable
request, any amendment to the Registration Statement or amendment or supplement
to the Prospectus which may be necessary or advisable in connection with the
distribution of the Shares by you, and to use its best efforts to cause any such
amendment to the Registration Statement to become promptly effective.
(d) Prior to 10:00 A.M., New York City time, on the first
business day after the date of this Agreement and from time to time thereafter
for such period as in the opinion of counsel for the Underwriters a prospectus
is required by law to be delivered in connection with sales by an Underwriter or
a dealer, to furnish in New York City to each Underwriter and any dealer as many
copies of the Prospectus (and of any amendment or supplement to the Prospectus)
as such Underwriter or dealer may reasonably request.
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(e) If during the period specified in Section 5(d), any event
shall occur or condition shall exist as a result of which, in the opinion of
counsel for the Underwriters, it becomes necessary to amend or supplement the
Prospectus in order to make the statements therein, in the light of the
circumstances when the Prospectus is delivered to a purchaser, not misleading,
or if, in the opinion of counsel for the Underwriters, it is necessary to amend
or supplement the Prospectus to comply with applicable law, forthwith to prepare
and file with the Commission an appropriate amendment or supplement to the
Prospectus so that the statements in the Prospectus, as so amended or
supplemented, will not in the light of the circumstances when it is so
delivered, be misleading, or so that the Prospectus will comply with applicable
law, and to furnish to each Underwriter and to any dealer as many copies thereof
as such Underwriter or dealer may reasonably request.
(f) Prior to any public offering of the Shares, to cooperate
with you and counsel for the Underwriters in connection with the registration or
qualification of the Shares for offer and sale by the several Underwriters and
by dealers under the state securities or Blue Sky laws of such jurisdictions as
you may request, to continue such registration or qualification in effect so
long as required for distribution of the Shares and to file such consents to
service of process or other documents as may be necessary in order to effect
such registration or qualification; provided, however, that the Company shall
not be required in connection therewith to qualify as a foreign corporation in
any jurisdiction in which it is not now so qualified or to take any action that
would subject it to general consent to service of process or taxation other than
as to matters and transactions relating to the Prospectus, the Registration
Statement, any preliminary prospectus or the offering or sale of the Shares, in
any jurisdiction in which it is not now so subject.
(g) To mail and make generally available to its stockholders
as soon as practicable an earnings statement covering a period of at least 12
months beginning after the effective date (as defined in Rule 158) of the
Registration Statement, which earnings statement shall satisfy the provisions of
Section 11(a) of the Act, and to advise you in writing when such statement has
been so made available.
(h) During the period of three years after the date of this
Agreement, to furnish to you as soon as available copies of all reports or other
communications furnished to the record holders of Common Stock or furnished to
or filed with the Commission or any national securities exchange on which any
class of securities of the Company is listed and such other publicly available
information concerning the Company and its subsidiaries as you may reasonably
request.
(i) To pay (a) the costs incident to the authorization,
issuance, sale, preparation and delivery of the Shares and any taxes payable in
that connection; (b) the costs incident to the Registration of the Shares under
the Securities Act; (c) the costs incident to the preparation, printing and
distribution of the Registration Statement, Preliminary Prospectus, Prospectus,
any amendments and exhibits thereto, the costs of
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printing, reproducing and distributing, the "Agreement Among Underwriters"
between the Representatives and the Underwriters, the Master Selected Dealers'
Agreement, the Underwriters' Questionnaire and this Agreement by mail, telex or
other means of communications; (d) the fees and expenses (including related fees
and expenses of counsel for the Underwriters) incurred in connection with
filings made with the National Association of Securities Dealers (the "NASD");
(e) any applicable listing or other fees; (f) the fees and expenses of
qualifying the Shares under the securities laws of the several jurisdictions as
provided in Section 5(f) and of preparing, printing and distributing Blue Sky
Memoranda and Legal Investment Surveys (including related fees and expenses of
counsel to the Underwriters); (g) all fees and expenses of the registrar and
transfer agent of the Shares; and (h) all other costs and expenses incident to
the performance of the obligations of the Company under this Agreement
(including, without limitation, the fees and expenses of the Company's counsel
and the Company's independent accountants); provided that, except as otherwise
provided in this Section 5 and in Section 10, the Underwriters shall pay their
own costs and expenses, including the fees and expenses of their counsel, any
transfer taxes on the Shares which they may sell and the expenses of advertising
any offering of the Shares made by the Underwriters.
(j) To use its best efforts to list for quotation the Shares
on the Nasdaq National Market and to maintain the listing of the Shares on the
Nasdaq National Market for a period of three years after the date of this
Agreement.
(k) To use its best efforts to do and perform all things
required or necessary to be done and performed under this Agreement by the
Company prior to the Closing Date or any Option Closing Date, as the case may
be, and to satisfy all conditions precedent to the delivery of the Shares.
(l) If the Registration Statement at the time of the
effectiveness of this Agreement does not cover all of the Shares, to file a Rule
462(b) Registration Statement with the Commission registering the Shares not so
covered in compliance with Rule 462(b) by 10:00 P.M., New York City time, on the
date of this Agreement and to pay to the Commission the filing fee for such Rule
462(b) Registration Statement at the time of the filing thereof or to give
irrevocable instructions for the payment of such fee pursuant to Rule 111(b)
under the Act.
(m) That in connection with the Directed Share Program, the
Company will ensure that the Directed Shares will be restricted to the extent
required by the NASD or the NASD rules from sale, transfer, assignment, pledge
or hypothecation for a period of three months following the date of the
effectiveness of the Registration Statement. SG Cowen will notify the Company as
to which Participants will need to be so restricted. The Company will direct the
removal of such transfer restrictions upon the expiration of such period of
time.
(n) To pay all fees and disbursements of counsel incurred by
the Underwriters in connection with the Directed Share Program and stamp duties,
similar
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taxes or duties or other taxes, if any, incurred by the Underwriters in
connection with the Directed Share Program.
SECTION 6. Representations and Warranties of the Company. The Company
represents and warrants to each Underwriter that:
(a) The Registration Statement has become effective (other
than any Rule 462(b) Registration Statement to be filed by the Company after the
effectiveness of this Agreement); any Rule 462(b) Registration Statement filed
after the effectiveness of this Agreement will become effective no later than
10:00 P.M., New York City time, on the date of this Agreement; and no stop order
suspending the effectiveness of the Registration Statement is in effect, and no
proceedings for such purpose are pending before or threatened by the Commission.
(b) (i) The Registration Statement (other than any Rule 462(b)
Registration Statement to be filed by the Company after the effectiveness of
this Agreement), when it became effective, did not contain and, as amended, if
applicable, will not contain any untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading, (ii) the Registration Statement (other than
any Rule 462(b) Registration Statement to be filed by the Company after the
effectiveness of this Agreement) and the Prospectus comply and, as amended or
supplemented, if applicable, will comply in all material respects with the Act,
(iii) if the Company is required to file a Rule 462(b) Registration Statement
after the effectiveness of this Agreement, such Rule 462(b) Registration
Statement and any amendments thereto, when they become effective (A) will not
contain any untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading and (B) will comply in all material respects with the Act and (iv)
the Prospectus does not contain and, as amended or supplemented, if applicable,
will not contain any untrue statement of a material fact or omit to state a
material fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, except that the
representations and warranties set forth in this paragraph do not apply to
statements or omissions in the Registration Statement or the Prospectus based
upon information relating to any Underwriter furnished to the Company in writing
by such Underwriter through you expressly for use therein.
(c) Each preliminary prospectus filed as part of the
registration statement as originally filed or as part of any amendment thereto,
or filed pursuant to Rule 424 under the Act, complied when so filed in all
material respects with the Act, and did not contain an untrue statement of a
material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading, except that the representations and
warranties set forth in this paragraph do not apply to statements or omissions
in any preliminary prospectus based upon information relating to any Underwriter
furnished to the Company in writing by such Underwriter through you expressly
for use therein.
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(d) Each of the Company and its subsidiaries has been duly
incorporated, is validly existing as a corporation in good standing under the
laws of its jurisdiction of incorporation and has the corporate power and
authority to carry on its business as described in the Prospectus and to own,
lease and operate its properties, and each is duly qualified and is in good
standing as a foreign corporation authorized to do business in each jurisdiction
in which the nature of its business or its ownership or leasing of property
requires such qualification, except where the failure to be so qualified would
not have a material adverse effect on the business, prospects, financial
condition or results of operations of the Company and its subsidiaries, taken as
a whole (a "Material Adverse Effect"). As used herein, the term "subsidiary"
includes any corporation, joint venture, partnership, limited liability company
or other entity in which the Company or any subsidiary has a direct or indirect
ownership interest and which is either (i) controlled, directly or indirectly,
by the Company or (ii) a "significant subsidiary" of the Company as that term is
defined in Regulation S-X of the Commission. All of the Company's subsidiaries
are listed on Schedule II hereto.
(e) There are no outstanding subscriptions, rights, warrants,
options, calls, convertible securities, commitments of sale or liens granted or
issued by the Company or any of its subsidiaries relating to or entitling any
person to purchase or otherwise to acquire any shares of the capital stock of
the Company or any of its subsidiaries, except as otherwise disclosed in the
Registration Statement.
(f) All the outstanding shares of capital stock of the Company
have been duly authorized and validly issued and are fully paid, non-assessable
and not subject to any preemptive or similar rights; and the Shares have been
duly authorized and, when issued and delivered to the Underwriters against
payment therefor as provided by this Agreement, will be validly issued, fully
paid and non-assessable, and the issuance of such Shares will not be subject to
any preemptive or similar rights.
(g) All of the outstanding shares of capital stock of each of
the Company's subsidiaries have been duly authorized and validly issued and are
fully paid and non-assessable, and are owned directly by the Company, free and
clear of any security interest, claim, lien, encumbrance or adverse interest of
any nature.
(h) No subsidiary of the Company is currently prohibited,
directly or indirectly, from (i) paying any dividends to the Company, (ii)
making any other distribution on such subsidiary's capital stock, (iii) repaying
any loans or advances made to such subsidiary by the Company, or (iv)
transferring any of such subsidiary's property or assets to the Company, in each
case except as disclosed in the Registration Statement and the Prospectus.
(i) The authorized capital stock of the Company conforms, in
all material respects, as to legal matters to the description thereof contained
in the Prospectus.
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(j) Neither the Company nor any of its subsidiaries is (1) in
violation of its respective charter or by-laws or (2) in default in the
performance of any obligation, agreement, covenant or condition contained in any
indenture, loan agreement, mortgage, lease or other agreement or instrument to
which the Company or any of its subsidiaries is a party or by which the Company
or any of its subsidiaries or their respective property is bound, except for any
such default as could not have a Material Adverse Effect.
(k) The execution, delivery and performance of this Agreement
by the Company, the compliance by the Company with all the provisions hereof and
the consummation of the transactions contemplated hereby will not (i) require
any consent, approval, authorization or other order of, or qualification with,
any court or governmental body or agency (except such as may be required under
the securities or Blue Sky laws of the various states), (ii) conflict with or
constitute a breach of any of the terms or provisions of, or a default under,
the charter or by-laws of the Company or any of its subsidiaries or any
indenture, loan agreement, mortgage, lease or other agreement or instrument that
is material to the Company and its subsidiaries, taken as a whole, to which the
Company or any of its subsidiaries is a party or by which the Company or any of
its subsidiaries or their respective property is bound, (iii) violate or
conflict with any applicable law or any rule, regulation, judgment, order or
decree of any court or any governmental body or agency having jurisdiction over
the Company, any of its subsidiaries or their respective property or (iv) result
in the suspension, termination or revocation of any Authorization (as defined
below) of the Company or any of its subsidiaries or any other impairment of the
rights of the holder of any such Authorization.
(l) There are no legal or governmental proceedings pending or,
to the best of the Company's knowledge, threatened to which the Company or any
of its subsidiaries is a party or to which any of their respective property is
subject that are required to be described in the Registration Statement or the
Prospectus and are not so described; nor are there any statutes, regulations,
contracts or other documents that are required to be described in the
Registration Statement or the Prospectus or to be filed as exhibits to the
Registration Statement that are not so described or filed as required.
(m) Neither the Company nor any of its subsidiaries has
violated any foreign, federal, state or local law or regulation relating to the
protection of human health and safety, the environment or hazardous or toxic
substances or wastes, pollutants or contaminants ("Environmental Laws"), any
provisions of the Employee Retirement Income Security Act of 1974, as amended,
or any provisions of the Foreign Corrupt Practices Act, or the rules and
regulations promulgated thereunder, except for such violations which, singly or
in the aggregate, would not have a Material Adverse Effect.
(n) Each of the Company and its subsidiaries has such permits,
licenses, consents, exemptions, franchises, authorizations and other approvals
(each, an "Authorization") of, and has made all filings with and notices to, all
governmental or regulatory authorities and self-regulatory organizations and all
courts and other tribunals,
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including, without limitation, under any applicable Environmental Laws, as are
necessary to own, lease, license and operate its respective properties and to
conduct its business, except where the failure to have any such Authorization or
to make any such filing or notice would not, singly or in the aggregate, have a
Material Adverse Effect. Each such Authorization is valid and in full force and
effect and each of the Company and its subsidiaries is in compliance with all
the terms and conditions thereof and with the rules and regulations of the
authorities and governing bodies having jurisdiction with respect thereto; and
no event has occurred (including, without limitation, the receipt of any notice
from any authority or governing body) which allows or, after notice or lapse of
time or both, would allow, revocation, suspension or termination of any such
Authorization or results or, after notice or lapse of time or both, would result
in any other impairment of the rights of the holder of any such Authorization;
and such Authorizations contain no restrictions that are burdensome to the
Company or any of its subsidiaries; except where such failure to be valid and in
full force and effect or to be in compliance, the occurrence of any such event
or the presence of any such restriction would not, singly or in the aggregate,
have a Material Adverse Effect.
(o) There are no costs or liabilities associated with
Environmental Laws (including, without limitation, any capital or operating
expenditures required for clean-up, closure of properties or compliance with
Environmental Laws or any Authorization, any related constraints on operating
activities and any potential liabilities to third parties) which would, singly
or in the aggregate, have a Material Adverse Effect.
(p) This Agreement has been duly authorized, executed and
delivered by the Company.
(q) Arthur Andersen LLP are independent public accountants
with respect to the Company and its subsidiaries as required by the Act.
(r) The financial statements included in the Registration
Statement and the Prospectus (and any amendment or supplement thereto), together
with related schedules and notes, present fairly the financial position, results
of operations and changes in financial position of the Company and its
subsidiaries on the basis stated therein at the respective dates or for the
respective periods to which they apply; such statements and related schedules
and notes have been prepared in accordance with generally accepted accounting
principles consistently applied throughout the periods involved, except as
disclosed therein; the supporting schedules, if any, included in the
Registration Statement present fairly in accordance with generally accepted
accounting principles the information required to be stated therein; and the
other financial and statistical information and data set forth in the
Registration Statement and the Prospectus (and any amendment or supplement
thereto) present fairly, in all material respects, the information set forth
therein and are prepared on a basis consistent with such financial statements
and the books and records of the Company.
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(s) The pro forma financial statements of the Company and its
subsidiaries and the related notes thereto set forth in the Registration
Statement and the Prospectus (and any supplement or amendment thereto) have been
prepared on a basis consistent with the historical financial statements of the
Company and its subsidiaries, give effect to the assumptions used in the
preparation thereof on a reasonable basis and in good faith and present fairly
the historical and proposed transactions contemplated by the Registration
Statement and the Prospectus. Such pro forma financial statements have been
prepared in accordance with the applicable requirements of Rule 11-02 of
Regulation S-X promulgated by the Commission. The other pro forma financial and
statistical information and data set forth in the Registration Statement and the
Prospectus (and any supplement or amendment thereto) present fairly, in all
material respects, the information set forth therein and are prepared on a basis
consistent with the pro forma financial statements.
(t) The Company is not and, after giving effect to the
offering and sale of the Shares and the application of the proceeds thereof as
described in the Prospectus, will not be, an "investment company" as such term
is defined in the Investment Company Act of 1940, as amended.
(u) Except as disclosed in the Registration Statement and the
Prospectus, 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 or to require the Company to include such securities with the Shares
registered pursuant to the Registration Statement.
(v) Since the respective dates as of which information is
given in the Prospectus other than as set forth in the Prospectus (exclusive of
any amendments or supplements thereto subsequent to the date of this Agreement),
(i) there has not occurred any material adverse change or any development
involving a prospective material adverse change in the condition, financial or
otherwise, or the earnings, business, management or operations of the Company
and its subsidiaries, taken as a whole, (ii) there has not been any material
adverse change or any development involving a prospective material adverse
change in the capital stock or in the long-term debt of the Company or any of
its subsidiaries and (iii) neither the Company nor any of its subsidiaries has
incurred any material liability or obligation, direct or contingent.
(w) The Company and its subsidiaries have good and marketable
title in fee simple to all real property and good and marketable title to all
personal property owned by them which is material to the business of the Company
and its subsidiaries, in each case free and clear of all liens, encumbrances and
defects except such as are described in the Prospectus or such as do not
materially affect the value of such property and do not interfere with the use
made and proposed to be made of such property by the Company and its
subsidiaries; and any real property and buildings held under lease by the
Company and its subsidiaries are held by them under valid, subsisting and
enforceable
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leases with such exceptions as are not material and do not interfere with the
use made and proposed to be made of such property and buildings by the Company
and its subsidiaries, in each case except as disclosed in the Registration
Statement and the Prospectus.
(x) The Company and its subsidiaries own or possess all
patents, patent rights, licenses, inventions, copyrights, know-how (including
trade secrets and other unpatented and/or unpatentable proprietary or
confidential information, systems or procedures), trademarks, service marks and
trade names ("Intellectual Property") currently employed by them in connection
with the business now operated by them except where the failure to own or
possess such Intellectual Property would not, singly or in the aggregate, have a
Material Adverse Effect. Except as disclosed in the Registration Statement,
neither the Company nor any of its subsidiaries (A) has received any notice of
infringement of or conflict with asserted rights of others with respect to any
Intellectual Property, or (B) is infringing or otherwise violating any
Intellectual Property of others, except for any such infringement or other
violation which, singly or in the aggregate, would not have a Material Adverse
Effect. There are no legal or governmental proceedings pending or, to the best
of the Company's knowledge, threatened relating to any Intellectual Property
which, singly or in the aggregate, if the subject of an unfavorable decision,
ruling or finding, would have a Material Adverse Effect. There are no contracts
or other documents relating to any Intellectual Property required to be filed as
an exhibit to the Registration Statement or required to be described in the
Registration Statement or the Prospectus that are not so filed or described as
required.
(y) The Company and each of its subsidiaries have operated and
currently operate their business in conformity with all applicable laws, rules
and regulations of each jurisdiction in which it is conducting business,
including all state and federal health care laws, except where the failure to so
be in compliance would not, singly or in the aggregate, have a Material Adverse
Effect.
(z) The Company and each of its subsidiaries are insured by
insurers of recognized financial responsibility against such losses and risks
and in such amounts as are prudent and customary in the business in which they
are engaged; and neither the Company nor any of its subsidiaries (i) has
received notice from any insurer or agent of such insurer that substantial
capital improvements or other material expenditures will have to be made in
order to continue such insurance or (ii) has any reason to believe that it will
not be able to renew its existing insurance coverage as and when such coverage
expires or to obtain similar coverage from similar insurers at a cost that would
not have a Material Adverse Effect.
(aa) No relationship, direct or indirect, exists between or
among the Company or any of its subsidiaries on the one hand, and the directors,
officers, stockholders, customers or suppliers of the Company or any of its
subsidiaries on the other hand, which is required by the Act to be described in
the Registration Statement or the Prospectus which is not so described.
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(bb) The Company and each of its subsidiaries maintains a
system of internal accounting controls sufficient to provide reasonable
assurance that (i) transactions are executed in accordance with management's
general or specific authorizations; (ii) transactions are recorded as necessary
to permit preparation of financial statements in conformity with generally
accepted accounting principles and to maintain asset accountability; (iii)
access to assets is permitted only in accordance with management's general or
specific authorization; and (iv) the recorded accountability for assets is
compared with the existing assets at reasonable intervals and appropriate action
is taken with respect to any differences.
(cc) All material tax returns required to be filed by the
Company and each of its subsidiaries in any jurisdiction have been filed, other
than when extensions to file have been obtained or as to those filings being
contested in good faith, and all material taxes, including withholding taxes,
penalties and interest, assessments, fees and other charges due pursuant to such
returns or pursuant to any assessment received by the Company or any of its
subsidiaries have been paid, other than those being contested in good faith and
for which adequate reserves have been provided.
(dd) The Company and its subsidiaries have complied and are in
compliance with all foreign, federal, state and local statutes, executive
orders, proclamations, regulations, rules, directives, decrees, ordinances and
similar provisions having the force or effect of law and all judicial and
administrative orders, rulings, determinations and common law concerning the
export or reexport of products, services and technology, and the terms and
conduct of international transactions applicable to the Company and its
subsidiaries in connection with the conduct of the business of the Company and
its subsidiaries (including, without limitation, as the same relates to record
keeping requirements) ("International Trade Laws and Regulations"), except where
failure to comply therewith would not, singly or in the aggregate, have a
Material Adverse Effect.
(ee) At the effective time of the transfer of assets from
Premier Research Worldwide, Ltd. ("PRWW") to the Company (the "Transfer")
pursuant to the Asset Assignment and Transfer Agreement dated as of January 1,
2000, PRWW and the Company each had full legal right, power and authority to
consummate the Transfer and the Transfer had been duly authorized by each of the
parties thereto and their respective stockholders and boards of directors, to
the extent required. The consummation of the Transfer did not (A) conflict with
or result in a breach of the charter or bylaws of either PRWW or the Company;
(B) conflict with or result in a material breach of any agreement or instrument
to which either PRWW or the Company was then a party or by which either of such
parties was then bound, except for such conflicts or breaches which, singly or
in the aggregate, would not have a Material Adverse Effect; (C) conflict with or
result in a breach of any law or regulation; or (D) conflict with or result in a
breach of any order, writ, injunction or decree of any jurisdiction, court, or
governmental instrumentality. No consent, approval, authorization or order of
any court or governmental agency or body
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was required for the consummation of the Transfer, except for those that were
duly and timely obtained. The consummation of the Transfer constituted an
entirely tax free transaction under Section 351 of the Internal Revenue Code of
1986, as amended (herein called the Code), and otherwise did not require PRWW or
the Company to recognize gain under the Code.
(ff) Each certificate signed by any officer of the Company and
delivered to the Underwriters or counsel for the Underwriters shall be deemed to
be a representation and warranty by the Company to the Underwriters as to the
matters covered thereby.
SECTION 7. Indemnification.
(a) (i) The Company shall indemnify and hold harmless each
Underwriter, its officers, employees, representatives and agents and each
person, if any, who controls any Underwriter within the meaning of the
Securities Act (collectively the "Underwriter Indemnified Parties" and each an
"Underwriter Indemnified Party") against any loss, claim, damage or liability,
joint or several, or any action in respect thereof, to which that Underwriter
Indemnified Party may become subject, under the Securities Act or otherwise,
insofar as such loss, claim, damage, liability or action arises out of or is
based upon (A) any untrue statement or alleged untrue statement of a material
fact contained in the Preliminary Prospectus, the Registration Statement or the
Prospectus or in any amendment or supplement thereto, (B) the omission or
alleged omission to state in any Preliminary Prospectus, the Registration
Statement or the Prospectus or in any amendment or supplement thereto a material
fact required to be stated therein or necessary to make the statements therein
not misleading, or (C) any act or failure to act, or any alleged act or failure
to act, by any Underwriter in connection with, or relating in any manner to, the
Shares or the offering contemplated hereby, and which is included as part of or
referred to in any loss, claim, damage, liability or action arising out of or
based upon matters covered by clause (A) or (B) above, (provided that the
Company shall not be liable in the case of any matter covered by this clause (C)
to the extent that it is determined in a final judgement by a court of competent
jurisdiction that such loss, claim, damage, liability or action resulted
directly from any such act or failure to act undertaken or omitted to be taken
by such Underwriter through its gross negligence or willful misconduct) and
shall reimburse each Underwriter Indemnified Party promptly upon demand for any
legal or other expenses reasonably incurred by that Underwriter Indemnified
Party in connection with investigating or preparing to defend or defending
against or appearing as a third party witness in connection with any such loss,
claim, damage, liability or action as such expenses are incurred; provided,
however, that the Company shall not be liable in any such case to the extent
that any such loss, claim, damage, liability or action arises out of or is based
upon an untrue statement or alleged untrue statement in or omission or alleged
omission from the Preliminary Prospectus, either of the Registration Statement
or the Prospectus or any such amendment or supplement in reliance upon and in
conformity with written information furnished to the Company through the
Representatives by or on behalf of any Underwriter specifically for
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use therein, which information the parties hereto agree is limited to the
Underwriter's Information (as defined in Section 10); provided, further however,
that the foregoing indemnification agreement with respect to the Preliminary
Prospectus shall not inure to the benefit of any Underwriter from whom the
person asserting any such loss, claim, damage or liability purchased Securities,
or any officers, employees, representatives, agents or controlling persons of
such Underwriter, if (i) a copy of the Prospectus (as then amended or
supplemented) was required by law to be delivered to such person at or prior to
the written confirmation of the sale of Securities to such person, (ii) a copy
of the Prospectus (as then amended or supplemented) was not sent or given to
such person by or on behalf of such Underwriter and such failure was not due to
non-compliance by the Company with Section 5(d), and (iii) the Prospectus (as so
amended or supplemented) would have cured the defect giving rise to such loss,
claim, damage or liability. This indemnity agreement is not exclusive and will
be in addition to any liability which the Company might otherwise have and shall
not limit any rights or remedies which may otherwise be available at law or in
equity to each Underwriter Indemnified Party.
(ii) The Company agrees to indemnify and hold
harmless SG Cowen and each person, if any, who controls SG Cowen within the
meaning of the Securities Act ("SG Cowen Entities"), from and against any and
all losses, claims, damages and liabilities (including, without limitation, any
legal or other expenses reasonably incurred in connection with defending or
investigating any such action or claim) (A) caused by the failure of any
Participant to pay for and accept delivery of the shares which immediately
following the effective of the Registration Statement, were subject to a
properly confirmed agreement to purchase; or (B) related to, arising out of, or
in connection with the Directed Share Program, provided that, the Company shall
not be responsible under this clause (B) for any losses, claim, damages or
liabilities (or expenses relating thereto) that are finally judicially
determined to have resulted from the bad faith or gross negligence of SG Cowen
Entities.
(b) Each Underwriter, severally and not jointly, shall
indemnify and hold harmless the Company its officers, employees, representatives
and agents, each of its directors and each person, if any, who controls the
Company within the meaning of the Securities Act (collectively the "Company
Indemnified Parties" and each a "Company Indemnified Party") against any loss,
claim, damage or liability, joint or several, or any action in respect thereof,
to which the Company Indemnified Parties may become subject, under the
Securities Act or otherwise, insofar as such loss, claim, damage, liability or
action arises out of or is based upon (i) any untrue statement or alleged untrue
statement of a material fact contained in the Preliminary Prospectus, the
Registration Statement or the Prospectus or in any amendment or supplement
thereto or (ii) 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, but in each case only to the extent that the 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 through
the Representatives by or on behalf of that Underwriter specifically for use
therein, and shall reimburse the Company Indemnified Parties for any legal or
other
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expenses reasonably incurred by such parties in connection with investigating or
preparing to defend or defending against or appearing as third party witness in
connection with any such loss, claim, damage, liability or action as such
expenses are incurred; provided that the parties hereto hereby agree that such
written information provided by the Underwriters consists solely of the
Underwriter's Information. This indemnity agreement is not exclusive and will be
in addition to any liability which the Underwriters might otherwise have and
shall not limit any rights or remedies which may otherwise be available at law
or in equity to the Company Indemnified Parties.
(c) Promptly after receipt by an indemnified party under this
Section 7 of notice of any claim or the commencement of any action, the
indemnified party shall, if a claim in respect thereof is to be made against the
indemnifying party under this Section 7, notify the indemnifying party in
writing of the claim or the commencement of that action; provided, however, that
the failure to notify the indemnifying party shall not relieve it from any
liability which it may have under this Section 7 except to the extent it has
been materially prejudiced by such failure; and, provided, further, that the
failure to notify the indemnifying party shall not relieve it from any liability
which it may have to an indemnified party otherwise than under this Section 7.
If any such claim or action shall be brought against an indemnified party, and
it shall notify the indemnifying party thereof, the indemnifying party shall be
entitled to participate therein and, to the extent that it wishes, jointly with
any other similarly notified indemnifying party, to assume the defense thereof
with counsel reasonably satisfactory to the indemnified party. After notice from
the indemnifying party to the indemnified party of its election to assume the
defense of such claim or action, the indemnifying party shall not be liable to
the indemnified party under this Section 7 for any legal or other expenses
subsequently incurred by the indemnified party in connection with the defense
thereof other than reasonable costs of investigation; provided, however, that
any indemnified party shall have the right to employ separate counsel in any
such action and to participate in the defense thereof but the fees and expenses
of such counsel shall be at the expense of such indemnified party unless (i) the
employment thereof has been specifically authorized by the indemnifying party in
writing, (ii) such indemnified party shall have been advised by such counsel
that there may be one or more legal defenses available to it which are different
from or additional to those available to the indemnifying party and in the
reasonable judgment of such counsel it is advisable for such indemnified party
to employ separate counsel or (iii) the indemnifying party has failed (after
notice pursuant to the first sentence of this Section 7(c)) to assume the
defense of such action and employ counsel reasonably satisfactory to the
indemnified party, in which case, if such indemnified party notifies the
indemnifying party in writing that it elects to employ separate counsel at the
expense of the indemnifying party, the indemnifying party shall not have the
right to assume the defense of such action on behalf of such indemnified party,
it being understood, however, that the indemnifying party shall not, in
connection with any one such action or separate but substantially similar or
related actions in the same jurisdiction arising out of the same general
allegations or circumstances, be liable for the reasonable fees and expenses of
more than one separate firm of attorneys at any time for all such indemnified
parties, which firm shall be designated in writing by SG Cowen, if the
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indemnified parties under this Section 7 consist of any Underwriter Indemnified
Party, or by the Company if the indemnified parties under this Section 7 consist
of any Company Indemnified Parties. Notwithstanding anything contained herein to
the contrary, if indemnity may be sought pursuant to Section 7(a)(ii) hereof in
respect of such action or proceeding, then in addition to such separate firm for
the indemnified parties, the indemnifying party shall be liable for the
reasonable fees and expenses of not more than one separate firm (in addition to
any local counsel) for SG Cowen for the defense of any losses, claims, damages
and liabilities arising out of the Directed Share Program, and all persons, if
any, who control SG Cowen within the meaning of the Act. Each indemnified party,
as a condition of the indemnity agreements contained in Sections 7(a) and 7(b),
shall use all reasonable efforts to cooperate with the indemnifying party in the
defense of any such action or claim. Subject to the provisions of Section 7(d)
below, no indemnifying party shall be liable for any settlement of any such
action effected without its written consent (which consent shall not be
unreasonably withheld), but if settled with its written consent or if there be a
final judgment for the plaintiff in any such action, the indemnifying party
agrees to indemnify and hold harmless any indemnified party from and against any
loss or liability by reason of such settlement or judgment.
(d) If at any time an indemnified party shall have requested
that an indemnifying party reimburse the indemnified party for fees and expenses
of counsel, such indemnifying party agrees that it shall be liable for any
settlement of the nature contemplated by this Section 7 effected without its
written consent if (i) such settlement is entered into more than 45 days after
receipt by such indemnifying party of the request for reimbursement, (ii) such
indemnifying party shall have received notice of the terms of such settlement at
least 30 days prior to such settlement being entered into and (iii) such
indemnifying party shall not have reimbursed such indemnified party in
accordance with such request prior to the date of such settlement.
(e) If the indemnification provided for in this Section 7 is
unavailable or insufficient to hold harmless an indemnified party under Section
7(a) or 7(b), then each indemnifying party shall, in lieu of indemnifying such
indemnified party, contribute to the amount paid or payable by such indemnified
party as a result of such loss, claim, damage or liability, or action in respect
thereof, (i) in such proportion as shall be appropriate to reflect the relative
benefits received by the Company on the one hand and the Underwriters on the
other from the offering of the Shares or 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 on the one hand and the
Underwriters on the other with respect to the statements or omissions which
resulted in such loss, claim, damage or liability, or action in respect thereof,
as well as any other relevant equitable considerations. The relative benefits
received by the Company on the one hand and the Underwriters on the other with
respect to such offering shall be deemed to be in the same proportion as the
total net proceeds from the offering of the Shares purchased under this
Agreement (before deducting expenses) received by the Company bear to the total
underwriting discounts and commissions received by the Underwriters with respect
to the Shares purchased under this Agreement, in each case as set forth in the
table on the cover page of the
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Prospectus. 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 on the one hand or the Underwriters on the other, the
intent of the parties and their relative knowledge, access to information and
opportunity to correct or prevent such untrue statement or omission; provided
that the parties hereto agree that the written information furnished to the
Company through the Representatives by or on behalf of the Underwriters for use
in any Preliminary Prospectus, the Registration Statement or the Prospectus
consists solely of the Underwriter's Information. The Company and the
Underwriters agree that it would not be just and equitable if contributions
pursuant to this Section 7(e) were to be determined by pro rata allocation (even
if the Underwriters were treated as one entity for such purpose) or by any other
method of allocation which does not take into account the equitable
considerations referred to herein. The amount paid or payable by an indemnified
party as a result of the loss, claim, damage or liability, or action in respect
thereof, referred to above in this Section 7(e) shall be deemed to include, for
purposes of this Section 7(e), any legal or other expenses reasonably incurred
by such indemnified party in connection with investigating or defending any such
action or claim. Notwithstanding the provisions of this Section 7(e), no
Underwriter shall be required to contribute any amount in excess of the amount
by which the total price at which the Shares underwritten by it and distributed
to the public were offered to the public less the amount of any damages which
such Underwriter has otherwise paid or become liable to pay by reason of any
untrue or alleged untrue statement or omission or alleged omission. No person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Securities Act) shall be entitled to contribution from any person who was
not guilty of such fraudulent misrepresentation.
The Underwriters' obligations to contribute as provided in this Section 7(e) are
several in proportion to their respective underwriting obligations and not
joint.
SECTION 8. Conditions of Underwriters' Obligations. The several
obligations of the Underwriters to purchase the Firm Shares under this Agreement
are subject to the satisfaction of each of the following conditions:
(a) All the representations and warranties of the Company
contained in this Agreement shall be true and correct on the Closing Date with
the same force and effect as if made on and as of the Closing Date.
(b) If the Company is required to file a Rule 462(b)
Registration Statement after the effectiveness of this Agreement, such Rule
462(b) Registration Statement shall have become effective by 10:00 P.M., New
York City time, on the date of this Agreement; and no stop order suspending the
effectiveness of the Registration Statement shall have been issued and no
proceedings for that purpose shall have been commenced or shall be pending
before or contemplated by the Commission.
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(c) You shall have received on the Closing Date a certificate
dated the Closing Date, signed by Joseph A. Esposito, in his capacity as
President and Chief Executive Officer, and Bruce Johnson, in his capacity as the
Chief Financial Officer of the Company, confirming the matters set forth in
Sections 6(v), 8(a) and 8(b) and that the Company has complied with all of the
agreements and satisfied all of the conditions herein contained and required to
be complied with or satisfied by the Company on or prior to the Closing Date.
(d) Since the respective dates as of which information is
given in the Prospectus other than as set forth in the Prospectus (exclusive of
any amendments or supplements thereto subsequent to the date of this Agreement),
(i) there shall not have occurred any change or any development involving a
prospective change in the condition, financial or otherwise, or the earnings,
business, management or operations of the Company and its subsidiaries, taken as
a whole, (ii) there shall not have been any change or any development involving
a prospective change in the capital stock or in the long-term debt of the
Company or any of its subsidiaries and (iii) neither the Company nor any of its
subsidiaries shall have incurred any liability or obligation, direct or
contingent, the effect of which, in any such case described in clause 8(d)(i),
8(d)(ii) or 8(d)(iii), in your judgment, is material and adverse and, in your
judgment, makes it impracticable to market the Shares on the terms and in the
manner contemplated in the Prospectus.
(e) You shall have received on the Closing Date an opinion
(satisfactory to you and counsel for the Underwriters), dated the Closing Date,
of Duane, Morris & Heckscher LLP counsel for the Company, to the effect that :
(i) each of the Company and its subsidiaries (other
than eResearch Technology Limited as to which such counsel does not
opine) has been duly incorporated, is validly existing as a corporation
in good standing under the laws of its jurisdiction of incorporation
and has the corporate power and authority to carry on its business as
described in the Prospectus and to own, lease and operate its
properties;
(ii) each of the Company and its subsidiaries (other
than eResearch Technology Limited as to which such counsel does not
opine) is duly qualified and is in good standing as a foreign
corporation authorized to do business in each jurisdiction in which the
nature of its business or its ownership or leasing of property requires
such qualification, except where the failure to be so qualified would
not have a Material Adverse Effect;
(iii) all the outstanding shares of capital stock of
the Company have been duly authorized and validly issued and are fully
paid, non-assessable and not subject to any preemptive or similar
rights;
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(iv) the Shares have been duly authorized and, when
issued and delivered to the Underwriters against payment therefor as
provided by this Agreement, will be validly issued, fully paid and
non-assessable, and the issuance of such Shares will not be subject to
any preemptive or similar rights;
(v) all of the outstanding shares of capital stock of
each of the Company's subsidiaries (other than eResearch Technology
Limited as to which such counsel does not opine) have been duly
authorized and validly issued and are fully paid and non-assessable,
and are owned by the Company, directly or indirectly through one or
more subsidiaries, free and clear of any security interest, claim,
lien, encumbrance or adverse interest of any nature;
(vi) this Agreement has been duly authorized,
executed and delivered by the Company;
(vii) the authorized capital stock of the Company
conforms in all material respects as to legal matters to the
description thereof contained in the Prospectus;
(viii) the Registration Statement has become
effective under the Act, no stop order suspending its effectiveness has
been issued and no proceedings for that purpose are, to the best of
such counsel's knowledge after due inquiry, pending before or
contemplated by the Commission;
(ix) the statements under the captions "Business -
Government Regulation," "Management - Executive Compensation (with
respect to the descriptions of the employment agreements)," "Management
- Stock Option Plan (with respect to the description of such plan),"
"Related Party Transactions (with respect to the Tax Sharing Agreement
and the Services and Support Agreement)," "Description of Capital
Stock," "Shares Eligible for Future Sale" and, solely with respect to
the first, second, third, fifth, seventh and eighth paragraphs thereof,
"Underwriting" in the Prospectus and Items 14 and 15 of Part II of the
Registration Statement, insofar as such statements constitute a summary
of the legal matters, documents or proceedings referred to therein,
fairly present the information called for with respect to such legal
matters, documents and proceedings;
(x) neither the Company nor any of its subsidiaries
(other than eResearch Technology Limited as to which such counsel does
not opine) is in violation of its respective charter or by-laws and, to
the best of such counsel's knowledge after due inquiry, neither the
Company nor any of its subsidiaries (other than eResearch Technology
Limited as to which such counsel does not opine) is in default in the
performance of any obligation, agreement, covenant or condition
contained in any indenture, loan agreement, mortgage, lease or other
agreement or instrument that is material to the Company and its
subsidiaries,
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taken as a whole, to which the Company or any of its subsidiaries is a
party or by which the Company or any of its subsidiaries or their
respective property is bound;
(xi) the execution, delivery and performance of this
Agreement by the Company, the compliance by the Company with all the
provisions hereof and the consummation of the transactions contemplated
hereby will not (A) require any consent, approval, authorization or
other order of, or qualification with, any court or governmental body
or agency (except such as may be required under the securities or Blue
Sky laws of the various states or the rules of the NASD), (B) conflict
with or constitute a breach of any of the terms or provisions of, or a
default under, the charter or by-laws of the Company or any of its
subsidiaries (other than eResearch Technology Limited as to which such
counsel does not opine) or any indenture, loan agreement, mortgage,
lease or other agreement or instrument that is material to the Company
and its subsidiaries, taken as a whole, to which the Company or any of
its subsidiaries (other than eResearch Technology Limited as to which
such counsel does not opine) is a party or by which the Company or any
of its subsidiaries (other than eResearch Technology Limited as to
which such counsel does not opine) or their respective property is
bound, except for any such default of an indenture, loan agreement,
mortgage, lease or other agreement or instrument that would not have a
Material Adverse Effect, (C) violate or conflict with any applicable
law or any rule, regulation, judgment, order or decree of any court or
any governmental body or agency having jurisdiction over the Company,
any of its subsidiaries or their respective property or (D) result in
the suspension, termination or revocation of any Authorization of the
Company or any of its subsidiaries (other than eResearch Technology
Limited as to which such counsel does not opine) or any other
impairment of the rights of the holder of any such Authorization,
except for any such suspension, termination, revocation or impairment
that would not have a Material Adverse Effect;
(xii) after due inquiry, such counsel does not know
of any legal or governmental proceedings pending or threatened to which
the Company or any of its subsidiaries is a party or to which any of
their respective property is subject that are required to be described
in the Registration Statement or the Prospectus and are not so
described, or of any statutes, regulations, contracts or other
documents that are required to be described in the Registration
Statement or the Prospectus or to be filed as exhibits to the
Registration Statement that are not so described or filed as required;
(xiii) to the best of such counsel's knowledge after
due inquiry, each of the Company and its subsidiaries (other than
eResearch Technology Limited as to which such counsel does not opine)
has such Authorizations of all governmental or regulatory authorities
as are necessary to own, lease, license and operate its respective
properties and to conduct its business, except where the failure to
have any such Authorization would not, singly or in the aggregate, have
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a Material Adverse Effect; to the best of such counsel's knowledge
after due inquiry, each such Authorization is valid and in full force
and effect; and to the best of such counsel's knowledge after due
inquiry, no event has occurred (including, without limitation, the
receipt of any notice from any authority or governing body) which
allows or, after notice or lapse of time or both, would allow,
revocation, suspension or termination of any such Authorization; except
where such failure to be valid and in full force and effect or the
occurrence of any such event would not, singly or in the aggregate,
have a Material Adverse Effect;
(xiv) the Company is not and, after giving effect to
the offering and sale of the Shares and the application of the proceeds
thereof as described in the Prospectus, will not be, an "investment
company" as such term is defined in the Investment Company Act of 1940,
as amended;
(xv) to the best of such counsel's knowledge after
due inquiry, 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 or to require the Company to
include such securities with the Shares registered pursuant to the
Registration Statement, except as disclosed in the Registration
Statement and the Prospectus; and
(xvi) the Registration Statement and the Prospectus
and any supplement or amendment thereto (except for the financial
statements and other financial data included therein as to which no
opinion need be expressed) comply as to form with the Act.
In addition, such counsel shall state that it has reviewed certain
corporate records and other documents of the Company, has participated in the
preparation of the Registration Statement and Prospectus and any amendments and
supplements thereto and has reviewed and discussed the contents thereof with
officers and employees of and independent accountants for the Company, and that,
although it has not investigated or verified independently the accuracy or
completeness of the statements contained therein (other than as set forth
expressly above), based upon the foregoing: (A) such counsel has no reason to
believe that at the time the Registration Statement became effective or on the
date of this Agreement, the Registration Statement and the prospectus included
therein (except for the financial statements and other financial data as to
which such counsel need not express any belief) contained any 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 and (B) such
counsel has no reason to believe that the Prospectus, as amended or
supplemented, if applicable (except for the financial statements and other
financial data, as aforesaid) contains any untrue statement of a material fact
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.
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<PAGE>
The opinion of Duane, Morris & Heckscher LLP described in Section 8(e)
above shall be rendered to you at the request of the Company and shall so state
therein. In rendering this opinion, such counsel may state that such opinion is
limited to matters arising under the laws of the State of New York, the laws of
the State of Pennsylvania, the Delaware General Corporation Law and the federal
laws of the United States.
(f) You shall have received on the Closing Date an opinion,
dated as of the Closing Date, of _______________, counsel to eResearch
Technology Limited, to the effect set forth in Annex II hereto.
(g) You shall have received on the Closing Date an opinion,
dated the Closing Date, of Alston & Bird LLP, counsel for the Underwriters, as
to the matters referred to in Sections 8(e)(iv), 8(e)(vi), 8(e)(ix) (but only
with respect to the statements under the caption "Description of Capital Stock"
and "Underwriting") and 8(e)(xvii).
(h) You shall have received, on each of the date hereof and
the Closing Date, a letter dated the date hereof or the Closing Date, as the
case may be, in form and substance satisfactory to you, from Arthur Andersen
LLP, independent public accountants, containing the information and statements
of the type ordinarily included in accountants' "comfort letters" to
Underwriters with respect to the financial statements and certain financial
information contained in the Registration Statement and the Prospectus.
(i) The Company shall have delivered to you the agreements
specified in Section 2 hereof which agreements shall be in full force and effect
on the Closing Date.
(j) The Shares shall have been duly listed for quotation on
the Nasdaq National Market.
(k) The Company shall not have failed on or prior to the
Closing Date to perform or comply with any of the agreements herein contained
and required to be performed or complied with by the Company on or prior to the
Closing Date.
(l) Subsequent to the execution and delivery of this Agreement
there shall not have occurred any of the following: (i) trading in securities
generally on the New York Stock Exchange or the American Stock Exchange or in
the over-the-counter market, or trading in any securities of the Company on any
exchange or in the over-the-counter market, shall have been suspended or minimum
prices shall have been established on any such exchange or such market by the
Commission, by such exchange or by any other regulatory body or governmental
authority having jurisdiction, (ii) a banking moratorium shall have been
declared by Federal or state authorities, (iii) the United States shall have
become engaged in hostilities, there shall have been an escalation in
hostilities involving the United States or there shall have been a declaration
of a national emergency or war by the United States or (iv) there shall have
occurred such a material adverse change in general economic, political or
financial conditions (or the
24
<PAGE>
effect of international conditions on the financial markets in the United States
shall be such) as to make it, in the judgment of the Representatives,
impracticable or inadvisable to proceed with the sale or delivery of the Stock
on the terms and in the manner contemplated in the Prospectus.
The several obligations of the Underwriters to purchase any Additional
Shares hereunder are subject to the delivery to you on the applicable Option
Closing Date of such documents as you may reasonably request with respect to the
good standing of the Company, the due authorization and issuance of such
Additional Shares and other matters related to the issuance of such Additional
Shares.
SECTION 9. Effectiveness of Agreement; Termination and Substitution of
Underwriters.
(a) This Agreement shall become effective upon the execution
and delivery of this Agreement by the parties hereto.
(b) The obligations of the Underwriters hereunder may be
terminated by SG Cowen, in its absolute discretion by notice given to and
received by the Company prior to delivery of and payment for the Firm Shares if,
prior to that time, the Underwriters shall decline to purchase the Shares for
any reason permitted under this Agreement or if any of the following events have
occurred:
(i) Either the Company or any of its subsidiaries (A)
sustains, after the date of its latest audited financial statements
included in the Prospectus, any loss or interference with its business
from fire, explosion, flood or other calamity, whether or not covered
by insurance, or from any labor dispute or court or governmental
action, order or decree, otherwise than as set forth or contemplated in
the Prospectus, or (B) there is a change in the capital stock or
long-term debt of the Company or any of its subsidiaries or any change,
or any development involving a prospective change, in or affecting the
business, general affairs, management, financial position,
stockholders' equity or results of operations of the Company and its
subsidiaries, otherwise than as set forth or contemplated in the
Prospectus, the effect of which, in any such case described in clause
(A) or is, in the judgment of the Representatives, so material and
adverse as to make it impracticable or inadvisable to proceed with the
sale or delivery of the Shares on the terms and in the manner
contemplated in the Prospectus.
(ii) Subsequent to the execution and delivery of this
Agreement (A) trading in securities generally on the New York Stock
Exchange or the American Stock Exchange or in the over-the-counter
market, or trading in any securities of the Company on any exchange or
in the over-the-counter market, is suspended or minimum prices are
established on any such exchange or such market by the Commission, by
such exchange or by any other regulatory body or governmental authority
having jurisdiction, (B) a banking moratorium is declared by Federal or
state authorities, (C) the United States becomes engaged in
25
<PAGE>
hostilities, there is an escalation in hostilities involving the United
States or there is a declaration of a national emergency or war by the
United States or (D) there is such a material adverse change in general
economic, political or financial conditions (or the effect of
international conditions on the financial markets in the United States
shall be such) as to make it, in the judgment of the Representatives,
impracticable or inadvisable to proceed with the sale or delivery of
the Shares on the terms and in the manner contemplated in the
Prospectus.
(c) If any Underwriter or Underwriters shall default in its or
their obligations to purchase Firm Shares or Additional Shares as the case may
be hereunder and the aggregate number of shares which such defaulting
Underwriter or Underwriter agreed but failed to purchase does not exceed ten
percent (10%) of the total number of shares underwritten, the other Underwriters
shall be obligated severally, in proportion to their respective commitments
hereunder, to purchase the shares which such defaulting Underwriter or
Underwriters agreed but failed to purchase. If any Underwriter or Underwriters
shall so default and the aggregate number of shares with respect to which such
default or defaults occur is more than ten percent (10%) of the total number of
shares underwritten and arrangements satisfactory to the Representatives and the
Company for the purchase of such shares by other persons are not made within
forty-eight (48) hours after such default, this Agreement shall terminate.
If the remaining Underwriters or substituted Underwriters are
required hereby or agree to take up all or part of the Firm Shares or Additional
Shares as the case may be of a defaulting Underwriter or Underwriters as
provided in this Section 9, (i) the Company shall have the right to postpone the
Closing date for a period of not more than five (5) full business days in order
that the Company may effect whatever changes may thereby be made necessary in
the Registration Statement or the Prospectus, or in any other documents or
arrangements, and the Company agrees promptly to file any amendments to the
Registration Statement or supplements to the Prospectus which may thereby be
made necessary, and (ii) the respective numbers of shares to be purchased by the
remaining Underwriters or substituted Underwriters shall be taken as the basis
of their underwriting obligation for all purposes of this Agreement. Nothing
herein contained shall relieve any defaulting Underwriter of its liability to
the Company or the other Underwriters for damages occasioned by its default
hereunder. Any termination of this Agreement pursuant to this Section 9 shall be
without liability on the part of any non-defaulting Underwriter or the Company,
except expenses to be paid or reimbursed pursuant to Sections 5 and 10 and
except the provisions of this Section 9 shall not terminate and remain in
effect.
SECTION 10. Miscellaneous. Notices given pursuant to any provision of
this Agreement shall be addressed as follows: (i) if to the Company, to Joseph
A. Esposito, President and Chief Executive Officer, eResearchTechnology, Inc.,
30 South 17th Street, Philadelphia, Pennsylvania 19103, and (ii) if to any
Underwriter or to you, to you c/o SG Cowen Securities Corporation, 1221 Avenue
of the Americas, 14th Floor, New York, NY
26
<PAGE>
10020, Attention: Syndicate Department, or in any case to such other address as
the person to be notified may have requested in writing.
The parties hereto acknowledge and agree that, for all purposes of this
Agreement, the Underwriters' Information consists solely of the following
information in the Prospectus: (i) the last paragraph on the front cover page
concerning the terms of the offering by the Underwriters; and (ii) the
statements concerning the Underwriters contained in the ninth and tenth
paragraphs under the heading "Underwriting."
The respective indemnities, contribution agreements, representations,
warranties and other statements of the Company and the several Underwriters set
forth in or made pursuant to this Agreement shall remain operative and in full
force and effect, and will survive delivery of and payment for the Shares,
regardless of (i) any investigation, or statement as to the results thereof,
made by or on behalf of any Underwriter, the officers or directors of any
Underwriter, any person controlling any Underwriter, the Company, the officers
or directors of the Company or any person controlling the Company, (ii)
acceptance of the Shares and payment for them hereunder and (iii) termination of
this Agreement.
If (i) this Agreement shall have been terminated pursuant to Section 9,
(ii) the Company shall fail to tender the Shares for delivery to the
Underwriters for any reason permitted under this Agreement, or (iii) the
Underwriters shall decline to purchase the Shares for any reason permitted under
this Agreement, the Company shall reimburse the Underwriters for the reasonable
fees and expenses of their counsel and for such other out-of-pocket expenses as
shall have been reasonably incurred by them in connection with this Agreement
and the proposed purchase of the Shares, and upon demand the Company shall pay
the full amount thereof to the SG Cowen. The Company shall also be liable for
all expenses which it has agreed to pay pursuant to Section 5(i) hereof. In
addition, the Company agrees to reimburse the several Underwriters, their
directors and officers and any persons controlling any of the Underwriters for
any and all fees and expenses (including, without limitation, the reasonable
fees disbursements of counsel) incurred by them in connection with enforcing
their rights hereunder (including, without limitation, pursuant to Section 7
hereof).
Except as otherwise provided, this Agreement has been and is made
solely for the benefit of and shall be binding upon the Company, the
Underwriters, the Underwriters' directors and officers, any controlling persons
referred to herein, the Company's directors and the Company's officers who sign
the Registration Statement and their respective successors and assigns, all as
and to the extent provided in this Agreement, and no other person shall acquire
or have any right under or by virtue of this Agreement. The term "successors and
assigns" shall not include a purchaser of any of the Shares from any of the
several Underwriters merely because of such purchase.
27
<PAGE>
This Agreement shall be governed and construed in accordance with the
laws of the State of New York.
This Agreement may be signed in various counterparts which together
shall constitute one and the same instrument.
28
<PAGE>
Please confirm that the foregoing correctly sets forth the agreement
between the Company and the several Underwriters.
Very truly yours,
eRESEARCHTECHNOLOGY, INC.
By:
-----------------------------
Name:
------------------------
Title:
-----------------------
SG COWEN SECURITIES CORPORATION
Prudential Securities Incorporated
Acting severally on behalf of
themselves and the several
Underwriters named in
Schedule I hereto
By: SG COWEN SECURITIES CORPORATION
By
-----------------------------
29
<PAGE>
SCHEDULE I
----------
Underwriters Number of Firm Shares
to be Purchased
SG Cowen Securities Corporation
Prudential Securities Incorporated
Acting severally on behalf of
themselves and the several
Underwriters named in
Schedule I hereto
Total
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SCHEDULE II
-----------
Subsidiaries
------------
eResearch Technology Limited, a U.K. corporation
<PAGE>
Annex I
Premier Research Worldwide, Ltd.
Communicade Inc.
Scirex Corporation
<PAGE>
Annex II
[Form of foreign counsel opinion]
2
