Exhibit 2.1
EXCHANGE AGREEMENT
BY DECLARATION OF TRUST
DATED AS OF APRIL 2, 2002
BY AND AMONG
INVERESK RESEARCH GROUP, INC.
XXXX XXXXX AS ESCROW AGENT
AND
THE SHAREHOLDERS NAMED IN THIS AGREEMENT
TABLE OF CONTENTS
PAGE
ARTICLE I DEFINITIONS............................................................................... 2
1.1. Definitions.......................................................................... 2
ARTICLE II SHARE EXCHANGE............................................................................ 4
2.1. Declaration of Trust................................................................. 4
2.2. Issuance of New Holdco Shares........................................................ 4
2.3. Stockholder Resolutions.............................................................. 4
2.4. Waiver of Rights of Pre-emption...................................................... 4
2.5. Termination of Trust................................................................. 4
ARTICLE III ESCROW.................................................................................... 4
3.1. Appointment of Escrow Agent.......................................................... 4
3.2. Creation of the Escrow............................................................... 4
3.3. Administration of the Escrow......................................................... 5
3.4. Appointment of Representative........................................................ 5
3.5. Duties of Escrow Agent............................................................... 5
3.6. Reliance............................................................................. 5
3.7. Liability............................................................................ 5
3.8. Disputes............................................................................. 6
3.9. Resignation.......................................................................... 6
3.10. Removal of Escrow Agent.............................................................. 6
ARTICLE IV POWER OF ATTORNEY......................................................................... 7
4.1. Power of Attorney.................................................................... 7
ARTICLE V REPRESENTATIONS AND WARRANTIES OF NEW HOLDCO.............................................. 7
5.1. Business of New Holdco............................................................... 7
5.2. Due Incorporation.................................................................... 7
5.3. Authority to Execute and Perform Agreement........................................... 7
5.4. Authorized Capital Share............................................................. 8
5.5. Valid Issuance....................................................................... 8
5.6. Proceedings.......................................................................... 8
5.7. Regulation S Representations......................................................... 8
ARTICLE VI REPRESENTATIONS AND WARRANTIES OF SHAREHOLDERS............................................ 8
6.1. Restricted Securities................................................................ 9
6.2. Purchase Entirely for Own Account.................................................... 9
TABLE OF CONTENTS
(CONTINUED)
PAGE
6.3. Economic Risk........................................................................ 9
6.4. Future Performance................................................................... 9
6.5. Expert Advice........................................................................ 9
6.6. No Approval.......................................................................... 9
6.7. Accredited Investor/Non U.S. Person.................................................. 9
6.8. Legend, No Public Market............................................................. 10
6.9. Authority to Execute and Perform Agreement........................................... 10
6.10. Ownership of Share Capital of Old Holdco............................................. 10
ARTICLE VII COVENANTS OF SHAREHOLDERS................................................................. 10
7.1. No Directed Selling Efforts.......................................................... 10
7.2. Compliance with Offering Restrictions................................................ 11
7.3. No offers or sales in the United States.............................................. 11
ARTICLE VIII COVENANTS OF NEW HOLDCO................................................................... 11
8.1. No Directed Selling Efforts.......................................................... 11
8.2. Compliance with Offering Restrictions................................................ 11
8.3. Compliance with Securities Laws...................................................... 11
8.4. No Stop Orders....................................................................... 11
8.5. Conduct of Business Prior to the Exchange Time....................................... 11
ARTICLE IX MISCELLANEOUS............................................................................. 11
9.1. Rescission of Agreement.............................................................. 11
9.2. Investment Agreements................................................................ 12
9.3. Fees and Costs....................................................................... 12
9.4. Force Majeure........................................................................ 12
9.5. Counterparts......................................................................... 12
9.6. Section Headings; Exhibits........................................................... 12
9.7. No Waiver............................................................................ 13
9.8. Governing Law........................................................................ 13
9.9. Entire Agreement..................................................................... 13
9.10. Amendment............................................................................ 13
9.11. Invalid Provisions................................................................... 13
9.12. Notices.............................................................................. 13
9.13. Third Party Beneficiaries............................................................ 13
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TABLE OF CONTENTS
(CONTINUED)
PAGE
9.14. Confidentiality...................................................................... 13
9.15. Specific Performance................................................................. 14
9.16. Gender and Person.................................................................... 14
9.17. Successors and Assigns; Transfers by Trustees ....................................... 14
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EXCHANGE AGREEMENT BY DECLARATION OF TRUST
THIS EXCHANGE AGREEMENT BY DECLARATION OF TRUST, dated as of
April 2, 2002 (this "Agreement"), is made and entered into by and among
Inveresk Research Group, Inc., a Delaware corporation ("New Holdco"), Xxxx
Xxxxx, in his capacity as escrow agent pursuant to this Agreement (the "Escrow
Agent") and the shareholders of Inveresk Research Group Limited, a private
company registered in Scotland, Reg. No. SC - 198206 ("Old Holdco"), listed on
Schedule I to this Agreement (each a "Shareholder" and collectively, the
"Shareholders").
BACKGROUND
WHEREAS, Old Holdco is the holding company for a group of
companies consisting of Inveresk Research International Limited, a company
organized under the laws of Scotland, and its subsidiaries (collectively, the
"Inveresk Group");
WHEREAS, the Board of Directors of Old Holdco has determined
that it is in the best interest of the Inveresk Group that the holding company
of the Inveresk Group be domiciled in the United States;
WHEREAS, the Shareholders together own all of the issued and
outstanding share capital of Old Holdco and each Shareholder currently owns the
number and class of shares of Old Holdco set forth opposite such Shareholder's
name on Schedule I to this Agreement;
WHEREAS, in order to facilitate the redomiciling of the
holding company of the Inveresk Group to the United States, each Shareholder has
agreed that, on the terms and subject to the conditions set forth in this
Agreement, and in consideration of the issuance by New Holdco to such
Shareholder of the number of shares of common stock, par value $.01 per share of
New Holdco ("New Holdco Common Stock") specified herein, as of the Exchange Time
(as defined below), such Shareholder will hold such Shareholder's shares of Old
Holdco on trust absolutely for New Holdco;
WHEREAS, the number of shares of New Holdco Common Stock to be
issued to each Shareholder pursuant to this Agreement recognizes the differing
rights attaching to each class of share in Old Holdco as set forth in the Old
Holdco Articles (as defined below);
WHEREAS, simultaneously with execution and delivery of this
Agreement, each Shareholder will execute a resolution confirming that none of
the transactions contemplated by this Agreement, including consummation of the
IPO (as defined below), will constitute a Conversion Event as defined in and for
purposes of the Old Holdco Articles; and
WHEREAS, the parties to this Agreement intend the transactions
contemplated by this Agreement to qualify as a tax-free share exchange pursuant
to Section 351 and/or Section 368 of the United States Internal Revenue Code of
1986, as amended, and a reorganization within Section 135 of the United Kingdom
Taxation of Chargeable Gains Xxx 0000, as amended;
NOW, THEREFORE, in consideration of the premises and the
representations, warranties, covenants and agreements contained herein, the
parties hereto, intending to be legally bound, agree as follows:
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ARTICLE I
DEFINITIONS
1.1. DEFINITIONS. As used herein, the following terms shall have the
respective meanings:
"Affiliate" shall mean any person that directly, or indirectly
through one or more intermediaries, controls or is controlled by or is under
common control with the person specified. For purposes of this definition,
control of a person means the power, direct or indirect, to direct or cause the
direction of the management and policies of such person whether by contract or
otherwise.
"A Ordinary Shares" means cumulative convertible participating
A ordinary shares of L1 each in the share capital of Old Holdco.
"Agreement" has the meaning set forth in the introductory
paragraph to this Agreement.
"B Ordinary Shares" means convertible participating B ordinary
shares of L1 each in the share capital of Old Holdco.
"Candover Holder" means each of the entities listed under the
caption "Candover Holders" on Schedule I to this Agreement.
"Certificates" has the meaning set forth in Section 3.2 of
this Agreement.
"Directed Selling Efforts" means any activity undertaken for
the purpose of, or that could reasonably be expected to have the effect of,
conditioning the market in the United States for any of the Regulation S
Exchange Shares.
"Distribution Compliance Period" means the period commencing
on the date on which the Exchange Shares are issued and ending on the first
anniversary of such date.
"Escrow Agent" has the meaning set forth in the introductory
paragraph to this Agreement.
"Exchange Amount" means with respect to each Shareholder, the
number of shares of New Holdco Common Stock set forth opposite such
Shareholder's name on Schedule I to this Agreement under the caption "Exchange
Shares."
"Exchange Shares" has the meaning set forth in Section 2.2 of
this Agreement.
"Exchange Time" means the time and date specified as the
"Exchange Time" in a notice (the "Notice of Exchange Time") provided by New
Holdco to any Candover Holder at such Candover Holder's address set forth on
Schedule I to this Agreement stating that management of New Holdco reasonably
believes that the pricing of the IPO will occur on the second Nasdaq trading day
following delivery of the Notice of Exchange Time.
"IPO" shall mean an initial public offering of shares of New
Holdco Common Stock in the United States, effected pursuant to a registration
statement on Form S-1 under the Securities Act.
"Inveresk Group" has the meaning set forth in the first
recital to this Agreement.
"Investment Agreements" has the meaning set forth in Section
9.2 of this Agreement.
"New Holdco" has the meaning set forth in the introductory
paragraph to this Agreement.
"New Holdco Common Stock" has the meaning set forth in the
recitals to this Agreement.
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"New Holdco Stockholder Consents" has the meaning set forth in
Section 4.1 of this Agreement.
"Offering Restrictions" has the meaning set forth in
Regulation S.
"Old Holdco" has the meaning set forth in the introductory
paragraph to this Agreement.
"Old Holdco Articles" means the Articles of Association of Old
Holdco, as in effect on the date of this Agreement.
"Old Holdco Shares" means, with respect to each Shareholder,
the number of Ordinary Shares, A Ordinary Shares and B Ordinary Shares set forth
opposite such Shareholder's name on Schedule I to this Agreement, under the
caption "Old Holdco Shares."
"Ordinary Shares" means ordinary shares of L1 each in the
share capital of Old Holdco.
"Person" shall mean any individual, corporation, partnership,
firm, limited liability company, joint venture, joint stock company, trust,
unincorporated organization, other forms of business or legal entity or
government authority, agency or political subdivision thereof.
"Regulation D" means Regulation D promulgated under the
Securities Act, as currently in effect.
"Regulation S" means Regulation S promulgated under the
Securities Act, as currently in effect.
"Regulation S Exchange Shares" means all of the Exchange
Shares that are issued pursuant to this Agreement in reliance on the exemptions
from the registration requirements of the Securities Act provided by Regulation
S.
"Representative" has the meaning set forth in Section 3.4 of
this Agreement.
"Securities Act" shall mean the United States Securities Act
of 1933, as amended, or any successor federal statute, and the rules and
regulations thereunder, and as the same shall be in effect from time to time.
"Shareholder" and "Shareholders" have the meanings set forth
in the introductory paragraph to this Agreement.
"Termination Date" means September 30, 2002.
"Transfer Forms" has the meaning set forth in Section 3.2 of
this Agreement.
"Trigger Event" has the meaning set forth in Section 9.1(a) of
this Agreement.
"U.S. Person" means: (i) any natural person resident in the
United States; (ii) any partnership or corporation organized or incorporated
under the laws of the United States; (iii) any estate of which any executor or
administrator is a U.S. Person; (iv) any trust of which any trustee is a U.S.
Person; (v) any agency or branch of a foreign entity located in the United
States; (vi) any non-discretionary account or similar account (other than an
estate or trust) held by a dealer or other fiduciary for the benefit of a U.S.
Person; (vii) any non-discretionary account or similar account (other than an
estate or trust) held by a dealer or other fiduciary organized, incorporated or
(if an individual) resident in the United States; and (viii) any partnership or
corporation organized under the laws of any foreign jurisdiction which is formed
by a U.S. Person principally for the purpose of investing in securities not
registered under the Securities Act.
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"1999 Investment Agreement" has the meaning set forth in
Section 9.2 of this Agreement.
"2001 Investment Agreement" has the meaning set forth in
Section 9.2 of this Agreement.
ARTICLE II
SHARE EXCHANGE
2.1. DECLARATION OF TRUST. Each Shareholder hereby covenants and agrees
that as of and after the Exchange Time, (i) such Shareholder shall hold all of
such Shareholder's Old Holdco Shares, including all dividends and distributions
declared after the Exchange Time from such Old Holdco Shares, on trust for New
Holdco absolutely; and (ii) upon request from New Holdco such Shareholder shall
transfer legal title to its Old Holdco Shares to such Person as New Holdco may
direct.
2.2. ISSUANCE OF NEW HOLDCO SHARES. In consideration of the covenants
and agreements in Section 2.1 of this Agreement, New Holdco hereby covenants and
agrees that, as of the Exchange Time, it shall issue to each Shareholder a
number of shares of New Holdco Common Stock equal to such Shareholder's Exchange
Amount. The shares of New Holdco Common Stock to be issued to the Shareholders
pursuant to this Agreement are referred to in this Agreement as the "Exchange
Shares." No later than ten days after the Exchange Time, New Holdco shall
deliver share certificates representing the Exchange Shares issued to each
Shareholder pursuant to this Section 2.2 to such Shareholder at the address set
forth for such Shareholder on Schedule I to this Agreement.
2.3. STOCKHOLDER RESOLUTIONS. Simultaneously with the execution of this
Agreement, each Shareholder has executed and delivered to Old Holdco a
resolution confirming that none of the transactions contemplated by this
Agreement, including consummation of the IPO, will constitute a Conversion Event
under and for the purposes of the Old Holdco Articles.
2.4. WAIVER OF RIGHTS OF PRE-EMPTION. Each Shareholder hereby expressly
waives any right of pre-emption which such Shareholder may have in relation to
the sale and/or transfer of any Shareholder's Old Holdco Shares to New Holdco.
2.5. TERMINATION OF TRUST. Notwithstanding anything to the contrary in
this Agreement, the agreement to hold on trust granted by each Shareholder
pursuant to Section 2.1 of this Agreement and the power of attorney granted by
each Shareholder pursuant to Section 4.1 of this Agreement shall terminate and
be of no further force or effect if the Exchange Time has not occurred on or
prior to the Termination Date.
ARTICLE III
ESCROW
3.1. APPOINTMENT OF ESCROW AGENT. New Holdco and the Shareholders
hereby constitute and appoint the Escrow Agent as, and the Escrow Agent hereby
agrees to assume and perform the duties of, escrow agent, under and pursuant to
the terms of this Agreement.
3.2. CREATION OF THE ESCROW. In furtherance of its obligations under
Article II and Article IV of this Agreement, each Shareholder, simultaneously
with the execution of this Agreement, has deposited
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the following into escrow with the Escrow Agent: (i) share certificates
representing such Shareholder's Old Holdco Shares (collectively, the
"Certificates"); (ii) share transfer forms (pre-stamped and duly executed in
blank but undated) relating to the Shares represented by the Certificates
(collectively, the "Transfer Forms") and (iii) an executed, undated, counterpart
to a written consent of the stockholders of New Holdco approving, among other
things, the adoption of Stock Option Plans by New Holdco. The receipt of the
Certificates, Transfer Forms and New Holdco Stockholder Consents is hereby
acknowledged by the Escrow Agent. The Certificates and Transfer Forms shall not
be subject to any lien or attachment by any creditor of New Holdco, Old Holdco
or any of the Shareholders.
3.3. ADMINISTRATION OF THE ESCROW.
(a) Each Shareholder hereby irrevocably agrees that New Holdco, in
its sole discretion, may, at any time after the Exchange Time, direct the Escrow
Agent to date each Transfer Form and deliver the Certificates and the Transfer
Forms to Old Holdco at its offices located at Elphinstone Xxxxxxxx Xxxxxx,
Xxxxxxx, Xxxx Xxxxxxx XX00 0XX, Scotland, together with a request that the
Secretary of Old Holdco register New Holdco in the Register of Members and
Register of Transfers of Old Holdco as the legal holder of the Old Holdco Shares
represented by the Certificates and issue to New Holdco share certificates in
respect of the Old Holdco Shares represented by the Certificates. The Escrow
Agent shall comply with any such direction by New Holdco immediately upon
receipt of such direction. The New Holdco Stockholder Consents shall be
delivered to New Holdco in accordance with Section 4.1 of this Agreement.
(b) If the Exchange Time does not occur on or before the
Termination Date, then the Escrow Agent shall return to each Shareholder as
promptly as practicable following the Termination Date the Certificates, the
Transfer Forms and New Holdco Stockholder Consents deposited with the Escrow
Agent by such Shareholder.
3.4. APPOINTMENT OF REPRESENTATIVE. Each of the Shareholders hereby
appoints Ian Sword (the "Representative") as his or her exclusive agent to act
on his or her behalf with respect to taking any and all actions specified in or
contemplated by this Agreement, including making any amendments to this
Agreement, and engaging counsel, accountants or other representatives in
connection with the foregoing matters. The Representative shall take, and the
Shareholders agree that the Representative shall take, any and all actions which
he believes are necessary or appropriate under this Agreement for and on behalf
of the Shareholders with respect to the matters specified, as fully as if the
Shareholders were acting on their own behalf, including, without limitation,
dealing with New Holdco and the Escrow Agent. New Holdco and the Escrow Agent
shall have the right to rely upon all actions taken or omitted to be taken by
the Representative consistent with the terms of this Agreement, all of which
actions or omissions shall be legally binding upon each of the Shareholders.
3.5. DUTIES OF ESCROW AGENT. The duties and obligations of the Escrow
Agent shall be determined solely by the express provisions of this Agreement and
shall be limited to the performance of such duties and obligations as are
specifically set forth in this Agreement.
3.6. RELIANCE. In the performance of its duties under this Agreement,
the Escrow Agent shall be entitled to rely upon any document or instrument
reasonably believed by him to be genuine and signed by New Holdco or the
Representative, as the case may be. The Escrow Agent may assume that any person
purporting to give any notice in accordance with the provisions of this
Agreement has been duly authorized to do so.
3.7. LIABILITY. The Escrow Agent shall not be liable for any error of
judgment, or any action taken or omitted to be taken under this Agreement in
good faith, except in the case of his bad faith, gross
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negligence or willful misconduct. The Escrow Agent shall be entitled to consult
with counsel of his choosing (including in-house counsel) and shall not be
liable for any act suffered or omitted by him in good faith in accordance with
the advice of such counsel. The Escrow Agent shall not be responsible in any
manner for any depreciation in the value of the Old Holdco Shares represented by
the Certificates.
3.8. DISPUTES. In the event that the Escrow Agent shall be uncertain as
to his duties or rights under this Agreement, or shall receive instructions from
any party to this Agreement with respect to the Certificates, the Transfer Forms
or the New Holdco Stockholder Consents which, in his opinion, are in conflict
with any of the provisions of this Agreement, he shall be entitled to refrain
from taking any action until such time as there has been a final determination
of the rights of New Holdco and the Representative (or, in the case of
individual claims made against a Shareholder, such Shareholder) with respect to
the Certificates, Transfer Forms or the New Holdco Stockholder Consents (or
relevant portion thereof). For purposes of this Section 3.8, there shall be
deemed to have been a final determination of the rights of New Holdco and the
Representative (or, in the case of individual claims made against a Shareholder,
such Shareholder) with respect to the Certificates, Transfer Forms or the New
Holdco Stockholder Consents (or relevant portion thereof) at such time as Escrow
Agent shall receive (i) an executed counterpart of an agreement between the
Representative (or, in the case of individual claims made against a Shareholder,
such Shareholder) and New Holdco or (ii) a copy of a court order or judgment
which provides for the disposition of the Certificates, Transfer Forms or the
New Holdco Stockholder Consents (or relevant portion thereof).
3.9. RESIGNATION. The Escrow Agent may at any time resign and be
discharged of the duties imposed by this Agreement (but without prejudice for
any liability for bad faith, gross negligence or willful misconduct under this
Agreement) by giving notice to the Representative and New Holdco at least 30
business days prior to the date specified for such resignation to take effect,
in which case, upon the effective date of such resignation:
(a) all Certificates, Transfer Forms and New Holdco Stockholder
Consents then held by the Escrow Agent under this Agreement shall be delivered
by it to such Person as may be designated in writing by New Holdco and the
Representative, whereupon the Escrow Agent's obligations under this Agreement
shall cease and terminate;
(b) if no such Person has been designated by such date, all
obligations of the Escrow Agent under this Agreement shall, nevertheless, cease
and terminate, subject to clause (c) below; and
(c) the Escrow Agent's sole responsibility thereafter shall be to
keep all Certificates, Transfer Forms and New Holdco Stockholder Consents then
held by him and to deliver the same to the successor escrow agent designated in
writing by New Holdco and the Representative.
3.10. REMOVAL OF ESCROW AGENT. New Holdco and the Representative may,
upon at least ten business days' prior written notice to the Escrow Agent
executed by each of them, dismiss the Escrow Agent and appoint a successor. In
such event, the Escrow Agent shall promptly deliver to the successor escrow
agent named in such notice the Certificates, Transfer Forms and New Holdco
Stockholder Consents. Upon acceptance thereof by such successor escrow agent,
and upon reimbursement to the Escrow Agent of all expenses due to him under this
Agreement through the date of such delivery, the Escrow Agent shall be released
and discharged from all of his duties and obligations under this Agreement, but
without prejudice to any liability of the Escrow Agent for his bad faith, gross
negligence or willful misconduct under this Agreement.
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ARTICLE IV
POWER OF ATTORNEY
4.1. POWER OF ATTORNEY. Effective as of the Exchange Time, each
Shareholder hereby irrevocably constitutes and appoints New Holdco, with full
power of substitution, as its true and lawful attorney-in-fact with full power
and authority in the place and stead of such Shareholder and in the name of such
Shareholder or in its own name, (i) from time to time in New Holdco's sole
discretion to exercise all rights of such Shareholder relating to such
Shareholder's Old Holdco Shares, including, without limitation, all voting
rights and rights to receive any dividend (where declared after the Exchange
Time) or other entitlement attaching to such Old Holdco Shares, as fully and
completely as though New Holdco was the absolute owner of such shares for all
purposes and (ii) to date and deliver to New Holdco the New Holdco Stockholder
Consents at any time after the day following the day on which such Shareholder
becomes the record owner of the Exchange Shares to be issued to such Shareholder
pursuant to this Agreement. Each Shareholder declares that all acts and things
done by New Holdco in exercising powers under the power of attorney granted
pursuant to this Section 4.1 will be as valid as if they had been done by such
Shareholder and agrees to ratify and confirm any actions taken by New Holdco in
exercising its powers under such power of attorney. Each Shareholder declares
that the power of attorney granted pursuant to this Section 4.1 is given for
valuable consideration and, subject to Section 2.5 and Section 9.1 is
irrevocable.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF NEW HOLDCO
New Holdco represents and warrants to each Shareholder that:
5.1. BUSINESS OF NEW HOLDCO. New Holdco does not, and immediately prior
to the Exchange Time, New Holdco will not, have any liabilities of any nature
whatsoever, except for (i) the expenses which it has paid or incurred in
connection with its incorporation, organization and financing of the
transactions contemplated by this Agreement and its initial public offering, and
for legal and audit services and any other miscellaneous expenses incident to
its pre-operating period; and (ii) the liabilities of New Holdco under this
Agreement.
5.2. DUE INCORPORATION. New Holdco is a corporation duly organized,
validly existing and in good standing under the laws of the State of Delaware.
5.3. AUTHORITY TO EXECUTE AND PERFORM AGREEMENT. New Holdco has full
power and authority to (i) enter into this Agreement; and (ii) issue and deliver
the Exchange Shares and carry out the other provisions of this Agreement. New
Holdco has taken all actions necessary for the authorization, execution and
delivery of this Agreement, the performance of all obligations of New Holdco
under this Agreement and the authorization, issuance and delivery of the
Exchange Shares. This Agreement has been duly executed and delivered by New
Holdco and constitutes the legal, valid and binding obligation of New Holdco,
enforceable against New Holdco in accordance with its terms except as limited by
applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent
conveyance, and other laws of general application affecting enforcement of
creditors' rights generally, and as limited by laws relating to the availability
of specific performance, injunctive relief, or other equitable remedies. The
execution and delivery of this Agreement and the consummation of the
transactions contemplated by this Agreement will not: (i) require the approval
or consent of any governmental or regulatory body or the approval or consent of
any other Person; or (ii) conflict with or result in any breach or violation of
any of the terms and conditions of, or constitute (or with notice or lapse of
time or both constitute) a default under, the
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Amended and Restated Certificate of Incorporation of New Holdco or the bylaws of
New Holdco, or any statute, law, regulation, order, judgment or decree of or
applicable to New Holdco, or any instrument, contract or other agreement to
which New Holdco is a party or by or to which it is bound or subject, the effect
of which would have a material adverse effect on the business or properties of
New Holdco taken as a whole.
5.4. AUTHORIZED CAPITAL SHARE. The authorized capital share of New
Holdco will consist, immediately prior to the Exchange Time, of:
(i) 10,000,000 shares of preferred stock, par value $0.01 per
share, none of which will be issued and outstanding immediately prior
to the Exchange Time; and
(ii) 150,000,000 shares of New Holdco Common Stock, none of
which will be issued and outstanding immediately prior to the Exchange
Time.
5.5. VALID ISSUANCE. The Exchange Shares, when issued and delivered in
accordance with the terms of this Agreement for the consideration expressed in
this Agreement, will be duly and validly issued, fully paid and non-assessable
and free of restrictions on transfer other than restrictions on transfer under
this Agreement and applicable state and federal securities laws. Based in part
upon the representations of the Shareholders in this Agreement, the Exchange
Shares will be issued in compliance with all applicable federal and state
securities laws.
5.6. PROCEEDINGS. There is no litigation, action, proceeding or
investigation pending or, to the knowledge of New Holdco, threatened against New
Holdco.
5.7. REGULATION S REPRESENTATIONS.
(a) No offer of the Regulation S Exchange Shares was made by New
Holdco in the United States;
(b) New Holdco, any Affiliate of New Holdco, and any Person acting
on behalf of New Holdco or any such Affiliate (i) have not engaged in any
Directed Selling Efforts with respect to the Regulation S Exchange Shares and
(ii) have complied with the Offering Restrictions requirements of Regulation S
with respect to the Regulation S Exchange Shares;
(c) the transactions contemplated by this Agreement (i) have not
been pre-arranged with a purchaser who is in the United States or is a U.S.
Person and (ii) are not part of a plan or scheme to evade the registration
provisions of the Securities Act; and
(d) New Holdco has not issued, and after the Exchange Time will not
issue, any stop transfer order or other order impeding the sale and delivery of
the Regulation S Exchange Shares except for a stop order restricting the sale of
the Regulation S Exchange Shares into the United States or to, or for the
account or benefit of, U.S. Persons during the Distribution Compliance Period.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES OF SHAREHOLDERS
Each Shareholder, severally, and not jointly, represents and warrants
with respect to itself to New Holdco that:
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6.1. RESTRICTED SECURITIES. Such Shareholder is fully aware that the
Exchange Shares to be issued to such Shareholder pursuant to this Agreement have
not been registered under the Securities Act or under any applicable state
securities laws. Such Shareholder further understands that the Exchange Shares
will be issued in reliance on the exemptions from the registration requirements
of the Securities Act provided by Regulation D or Regulation S and in reliance
on exemptions from the registration requirements of certain state securities
laws. Such Shareholder understands that New Holdco is relying on the
representations and agreements of such Shareholder in this Agreement for the
purpose of determining whether this transaction meets the requirements of the
exemptions afforded by the Securities Act and certain state securities laws.
6.2. PURCHASE ENTIRELY FOR OWN ACCOUNT. Such Shareholder will acquire
the Exchange Shares for its own account as principal, not for the account of or
on behalf of any U.S. Person or any other Person and not with a view to or for
resale or distribution, nor with any present intention of selling or otherwise
disposing of all or any part of the Exchange Shares. Such Shareholder does not
have any agreement or obligation, as of the date of this Agreement, to transfer
or otherwise dispose of any Exchange Shares. Such Shareholder agrees that (i)
the acquisition of the Exchange Shares is a long-term investment and (ii) such
Shareholder may have to bear the economic risk of investment for an indefinite
period of time because the Exchange Shares have not been registered under the
Securities Act and such securities may not be registered, and cannot be resold,
pledged, assigned or otherwise disposed of or transferred unless they are
subsequently registered under the Securities Act and applicable state securities
laws or an exemption from such registration is available.
6.3. ECONOMIC RISK. Such Shareholder is able to bear the economic risk
of the investment of such Shareholder in the Exchange Shares and has such
knowledge and experience in financial and business matters, and knowledge of the
business of New Holdco, as to be capable of evaluating the merits and risks of
the prospective investment.
6.4. FUTURE PERFORMANCE. Such Shareholder acknowledges and is aware
that there is no assurance as to the future performance of New Holdco.
6.5. EXPERT ADVICE. Such Shareholder has sought such accounting, legal
and tax advice as it has considered necessary to make an informed investment
decision with respect to its acquisition of the Exchange Shares.
6.6. NO APPROVAL. Such Shareholder is aware that no federal or state
agency has (i) made any finding or determination as to the fairness of any
aspect of the investment in the Exchange Shares; or (ii) passed on or endorsed
the merits of the issuance of the Exchange Shares.
6.7. ACCREDITED INVESTOR/NON U.S. PERSON.
(a) Such Shareholder is an "accredited investor" as defined
in Rule 501(a) of Regulation D; or
(b) (i) such Shareholder is not a U.S. Person and is not an
Affiliate of New Holdco, (ii) no offer of the Regulation S Exchange Shares was
made to such Shareholder in the United States, (iii) at the time such
Shareholder executed this Agreement, such Shareholder was located outside the
United States, (iv) such Shareholder, its Affiliates and any Person acting on
behalf of such Shareholder or any such Affiliates (A) have not engaged in any
Directed Selling Efforts with respect to the Regulation S Exchange Shares, (B)
have complied with the Offering Restrictions requirements of Regulation S with
respect to the Regulation S Exchange Shares, (C) have complied with all other
applicable requirements of Regulation S and state law and (D) have not
established, and have no intention to establish, a short
9
position, directly or indirectly, in the Regulation S Exchange Shares; and (v)
the transactions contemplated by this Agreement have not been pre-arranged with
a purchaser who is located in the United States or is a U.S. Person and are not
part of a plan or scheme to evade the registration provisions of the Securities
Act.
6.8. LEGEND, NO PUBLIC MARKET. Such Shareholder acknowledges and agrees
that (i) the certificates representing the Exchange Shares, and any securities
issued in respect of or in exchange for the Exchange Shares, will contain the
legends required by Regulation D or Regulation S, and by the securities laws of
any State to the extent such laws are applicable to the shares represented by
the certificates so legended; (ii) such Shareholder will have no right to
require registration of the Exchange Shares under the Securities Act or any
applicable state securities laws and must bear the economic risks of its
investment for an indefinite period of time; and (iii) that there is not now and
there may never be any public market for the Exchange Shares, and such
Shareholder cannot now and may never be able to avail itself of the benefits of
Rule 144 or Rule 144A with respect to the resale of the Exchange Shares.
6.9. AUTHORITY TO EXECUTE AND PERFORM AGREEMENT. Such Shareholder has
full power and authority to (i) enter into this Agreement and (ii) carry out its
obligations under this Agreement. This Agreement has been duly executed and
delivered by such Shareholder and constitutes the legal, valid and binding
obligation of such Shareholder except as limited by applicable bankruptcy,
insolvency, reorganization, moratorium, fraudulent conveyance, and other laws of
general application affecting enforcement of creditors' rights generally, and as
limited by laws relating to the availability of specific performance, injunctive
relief, or other equitable remedies. The execution and delivery of this
Agreement and the consummation of the transactions contemplated hereby will not:
(i) require the approval or consent of any governmental or regulatory body or
the approval of or consent of any other person except for approvals or consents
required pursuant to securities laws of any state within the United States or
any jurisdiction outside of the United States, which approvals or consent such
Shareholder has or shall obtain; or (ii) conflict with or result in any breach
or violation of any of the terms and conditions of, or constitute (or with
notice or lapse of time or both constitute) a default under such Shareholder's
organization documents (if such Shareholder is not an individual), any statute,
regulation, order, judgment or decree of or applicable to such Shareholder, or
any instrument, contract or other agreement to which such Shareholder is a party
or by or to which such Shareholder is bound or subject, the effect of which
would have a material adverse effect on the business and properties of such
Shareholder, taken as a whole.
6.10. OWNERSHIP OF SHARE CAPITAL OF OLD HOLDCO. The number of Ordinary
Shares, A Ordinary Shares and B Ordinary Shares set forth opposite such
Shareholder's name on Schedule I to this Agreement constitutes all of the shares
of Old Holdco owned by such Shareholder as of the date of this Agreement.
ARTICLE VII
COVENANTS OF SHAREHOLDERS
Each Shareholder, severally, and not jointly, covenants and
agrees with respect to itself with New Holdco that:
7.1. NO DIRECTED SELLING EFFORTS. Such Shareholder shall refrain from
engaging, and cause its Affiliates and any Person acting on behalf of such
Shareholder or any such Affiliate to refrain from engaging, in any Directed
Selling Efforts with respect to any Regulation S Exchange Shares issued to such
Shareholder under this Agreement.
10
7.2. COMPLIANCE WITH OFFERING RESTRICTIONS. Such Shareholder shall
comply, and cause its Affiliates and any Person acting on behalf of such
Shareholder or any Affiliate to comply, with offering restrictions applicable to
the offer and sale of any Regulation S Exchange Shares issued to such
Shareholder under this Agreement, and any other applicable requirements, of
Regulation S.
7.3. NO OFFERS OR SALES IN THE UNITED STATES. Such Shareholder shall
refrain, during the Distribution Compliance Period, from offering or selling any
of the Regulation S Exchange Shares issued to such Shareholder under this
Agreement in the United States, to a U.S. Person or for the account or benefit
of a U.S. Person other than in accordance with Rule 903 or Rule 904 of
Regulation S.
ARTICLE VIII
COVENANTS OF NEW HOLDCO
New Holdco covenants and agrees with each Shareholder:
8.1. NO DIRECTED SELLING EFFORTS. New Holdco shall refrain from
engaging, and ensure that none of its Affiliates and no Person acting on behalf
of New Holdco or any such Affiliate will engage, in any Directed Selling Efforts
with respect to the Regulation S Exchange Shares.
8.2. COMPLIANCE WITH OFFERING RESTRICTIONS. New Holdco shall ensure
that all offering restrictions applicable to the offer and sale of the
Regulation S Exchange Shares pursuant to this Agreement are thoroughly complied
with and satisfied.
8.3. COMPLIANCE WITH SECURITIES LAWS. New Holdco shall continue to
comply, and ensure that its Affiliates and any Person acting on behalf of New
Holdco or any Affiliate comply, with all other applicable requirements of
Regulation S and state law with respect to the offer, sale and issuance of the
Regulation S Exchange Shares hereunder.
8.4. NO STOP ORDERS. New Holdco shall refrain from issuing any stop
transfer order or other order impeding the sale and delivery of the Regulation S
Exchange Shares except for a stop order restricting the sale of the Regulation S
Exchange Shares into the United States or to, or for the account or benefit of,
U.S. Persons during the Distribution Compliance Period.
8.5. CONDUCT OF BUSINESS PRIOR TO THE EXCHANGE TIME.8.6. Between the
date of this Agreement and the Exchange Time, other than in connection with the
transactions expressly contemplated by this Agreement and as contemplated or
disclosed in the prospectus to be issued by New Holdco in connection with the
IPO, New Holdco shall not take or suffer or permit any action or omit to take
any action which would render untrue any representation or warranty in this
Agreement and New Holdco shall conduct its business in the ordinary course in a
manner consistent with past practice.
ARTICLE IX
MISCELLANEOUS
9.1. ADDITIONAL SHAREHOLDER COVENANTS.
(a) Each Shareholder, New Holdco and Old Holdco, severally,
and not jointly, covenants and agrees with respect to itself that if either (i)
New Holdco does not execute an underwriting agreement in connection with the IPO
within five Nasdaq trading days of the date of the Notice of Exchange Time or
(ii) the IPO is not consummated within ten Nasdaq trading days of the Exchange
Time (each, a "Trigger Event"), it shall, at the request of any Candover Holder,
take all actions reasonably
11
necessary to place each party to this Agreement in the position that such party
was in with respect to its relative shareholdings prior to the execution of this
Agreement and as though the Candover Holders had not agreed to the deemed
operation of the ratchet mechanism contained within the Old Holdco Articles.
(b) In furtherance of Section 9.1(a) each Shareholder and New
Holdco severally, and not jointly, covenants and agrees with respect to itself
that following the occurrence of a Trigger Event, it shall, at the request of
any Candover Holder, take all actions reasonably necessary to (i) adjust the
shareholdings in New Holdco such that such shareholdings reflect the respective
shareholdings of the Shareholders in Old Holdco prior to the execution of this
Agreement, and as though the Candover Holders had not agreed to the deemed
operation of the ratchet mechanism contained within the Old Holdco Articles and
(ii) amend the organizational documents of New Holdco to incorporate provisions
that will have the same purpose and effect as the ratchet mechanism contained
within the Old Holdco Articles.
(c) In the event that the shareholdings in New Holdco are
adjusted in accordance with Section 9.1(b), each Shareholder and New Holdco
severally, and not jointly, covenants and agrees with respect to itself that it
shall take all actions that are reasonably necessary to ensure that an
investment agreement among New Holdco and the Shareholders is entered into
promptly thereafter, which investment agreement shall contain rights,
obligations and protections in respect of New Holdco and each of the
Shareholders in all material respects the same as those rights, obligations and
protections contained within the Investment Agreements in respect of Old Holdco
and each of the Shareholders.
9.2. INVESTMENT AGREEMENTS. Old Holdco and each Shareholder that is a
party to (i) that certain Investment Agreement, dated as of September 4, 1999,
by and among Old Holdco, Xxxxxx Xxxxx, Xxx Sword and Xxxxxxx Xxxxxx, and the
entities named on Schedule 2 thereto, and all amendments and supplements thereto
(the "1999 Investment Agreement") and (ii) that certain Investment Agreement,
dated as of February 2001, by and among Old Holdco, the existing managers named
on Schedule 1 thereto and the investors named on Schedule 2 thereto, and all
amendments and supplements thereto (the "2001 Investment Agreement," and
together with the 1999 Investment Agreement, the "Investment Agreements")
hereby, severally, and not jointly, covenants and agrees with respect to itself
that each of the Investment Agreements shall automatically terminate and be of
no further force or effect upon consummation of the IPO; provided that nothing
in this Section 9.2 shall relieve any party to the Investment Agreements from
liability for any breach of an Investment Agreement occurring prior to the
termination of the Investment Agreements.
9.3. FEES AND COSTS. Any costs, fees or expenses incurred by any party
to this Agreement that are solely and directly related to the transactions
contemplated by this Agreement shall be borne by New Holdco.
9.4. FORCE MAJEURE. No party shall be liable for any delay or failure
to perform its obligations under this Agreement, when such delay or failure is
caused by war, invasion, insurrection, blockade, embargo, riot, flood,
earthquake, act of God, fire, strike, act of government or governmental agency,
interference of civil or military authorities, or other cause of a like kind
beyond their control.
9.5. COUNTERPARTS. This Agreement may be executed in counterparts, each
of which will be deemed an original, but all of which together will constitute
this Agreement.
9.6. SECTION HEADINGS; EXHIBITS. The section and subsection headings
used herein are for reference and convenience only, and shall not enter into the
interpretation hereof.
12
9.7. NO WAIVER. Any term or condition of this Agreement may be waived
at any time by the party that is entitled to the benefit thereof, but no such
waiver shall be effective unless set forth in a written instrument duly executed
by or on behalf of the party waiving such term or condition. No waiver by any
party of any term or condition of this Agreement, in any one or more instances,
shall be deemed to be or construed as a waiver of the same or any other term or
condition of this Agreement on any future occasion.
9.8. GOVERNING LAW. This Agreement shall be governed by and construed
in accordance with English law and the parties to this Agreement irrevocably
submit to the non-exclusive jurisdiction of the English Courts.
9.9. ENTIRE AGREEMENT. This Agreement supersedes all prior discussions
and agreements between the parties with respect to the subject matter of this
Agreement, and contains the sole and entire agreement between the parties hereto
with respect to the share exchange contemplated by this Agreement.
9.10. AMENDMENT. This Agreement may be amended, supplemented or
modified only by a written instrument duly executed by or on behalf of New
Holdco, the Escrow Agent, the Candover Holders and the Representative.
9.11. INVALID PROVISIONS. If any provision of this Agreement is held to
be illegal, invalid or unenforceable under any present or future law, and if the
rights or obligations of any party hereto under this Agreement will not be
materially and adversely affected thereby, (a) such provision will be fully
severable, (b) this Agreement will be construed and enforced as if such illegal,
invalid or unenforceable provision had never comprised a part hereof, (c) the
remaining provisions of this Agreement will remain in full force and effect and
will not be affected by the illegal, invalid or unenforceable provision or by
its severance from this Agreement and (d) in lieu of such illegal, invalid or
unenforceable provision, there will be added automatically as a part of this
Agreement a legal, valid and enforceable provision as similar in terms to such
illegal, invalid or unenforceable provision as may be possible.
9.12. NOTICES. All notices, requests, consents, waivers and other
communications under this Agreement must be in writing and will be deemed to
have been duly given only if delivered personally, by telecopier after receipt
of mechanical confirmation of transmission, by nationally-recognized overnight
courier or mailed (certified mail postage prepaid, return receipt requested) to
the parties at their respective addresses indicated on the Schedule I to this
Agreement or the signature pages to this Agreement, as applicable. All such
notices, requests and other communications will (i) if delivered personally to
the address as provided in this Section 9.12, be deemed given upon delivery, and
(ii) if delivered by overnight courier, mail or telecopier in the manner
described above to the address as provided in this Section 9.12, be deemed given
upon receipt. Any party from time to time may change its address or other
information for the purpose of notices to that party by giving notice specifying
such change to the other parties hereto.
9.13. THIRD PARTY BENEFICIARIES. This Agreement is solely for the
benefit of the parties hereto and shall not be deemed to confer upon third
parties any remedy, claim, liability, reimbursement, claim of action or other
right, except as expressly provided in this Agreement.
9.14. CONFIDENTIALITY. Without the prior written consent of the other
party, no party hereto may disclose this Agreement, any of the terms or
provisions hereof to any other person not a party to this Agreement, except that
which may be required by law or the rules of any stock exchange or other market
on which a party's securities may be traded, and except that the parties may
disclose the terms of this Agreement to the officers and directors of such
party, and auditors, potential investors, acquirors, investment bankers,
underwriters, licensors or licensees who agree to keep such information strictly
confidential and not use such information for any other purpose other than in
connection with their
13
assistance of such party in connection with this Agreement. If the information
to which this Section 9.14 relates becomes generally available to the public by
any means other than breach of this Section 9.14, then this Section 9.14 shall
become null and void with respect to such information and shall have no further
effect with respect to such information.
9.15. SPECIFIC PERFORMANCE. The parties hereby acknowledge, without
prejudice to the right of any party to claim damages in respect of any breach of
the terms of this Agreement, that damages may not always be an appropriate
remedy and each party hereby agrees and acknowledges that any other party shall
have the right to apply for and obtain an order for specific performance,
injunction or other form of injunctive or interim relief in respect of any
actual, prospective or threatened breach of the terms of this Agreement.
9.16. GENDER AND PERSON. Words used herein, regardless of the number or
gender specifically used, shall be deemed and construed to include any other
number, singular or plural, and any other gender, masculine, feminine or neuter,
as the context shall require.
9.17. SUCCESSORS AND ASSIGNS; TRANSFERS BY TRUSTEES. This Agreement
shall be binding upon and inure to the benefit of the legal representative,
successors and permissible assigns of the parties hereto, whether so expressed
or not, except as specifically otherwise provided.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
14
SCHEDULE I
OLD HOLDCO SHARES EXCHANGE
----------------- --------
SHARES
------
NAME AND ADDRESS OF STOCKHOLDER ORDINARY SHARES A ORDINARY SHARES B ORDINARY SHARES
------------------------------- --------------- ----------------- -----------------
Candover Stockholders
Candover Investments PLC 75,960 -- 2,128,995
00 Xxx Xxxxxx
Xxxxxx XX0X 7 LN
United Kingdom
Candover (Trustees) Limited 8,439 -- 236,527
00 Xxx Xxxxxx
Xxxxxx XX0X 7 LN
United Kingdom
Candover 1997 UK No. 1 Limited Partnership 247,122 -- 6,926,296
00 Xxx Xxxxxx
Xxxxxx XX0X 7 LN
United Kingdom
Candover 1997 UK No. 2 Limited Partnership 76,975 -- 2,157,443
00 Xxx Xxxxxx
Xxxxxx XX0X 7 LN
United Kingdom
Candover 1997 US No. 1 Limited Partnership 205,175 -- 5,750,612
00 Xxx Xxxxxx
Xxxxxx XX0X 7 LN
United Kingdom
Candover 1997 US No. 2 Limited Partnership 69,039 -- 1,935,014
00 Xxx Xxxxxx
Xxxxxx XX0X 7 LN
United Kingdom
Candover 1997 US No. 3 Limited Partnership 34,687 -- 972,202
00 Xxx Xxxxxx
Xxxxxx XX0X 7 LN
United Kingdom
Other Stockholders
Dalame Resources S.A 6,340 -- 177,697
c/o Royal Bank of Scotland plc,
7th floor, 000 Xxxxxxxxxxx,
Xxxxxx XX0X 0XX
Xxxxxx Xxxxxxx
Xxxx Xxxxxxxx 4,282 -- 120,015
C/o Inveresk Research Group, Inc.
00000 Xxxxxx Xxxxxxx
Xxxxx 000
Xxxx, Xxxxx Xxxxxxxx 00000
Ian Sword 14,453 -- -- 867,180
C/o Inveresk Research Group Limited
Xxxxxxx XX00 0XX
Xxxxxxxx, Xxxxxx Xxxxxxx
Xxxxxx Xxxxx 31,797 -- -- 1,907,820
C/o Inveresk Research Group, Inc.
00000 Xxxxxx Xxxxxxx
Xxxxx 000
Xxxx, Xxxxx Xxxxxxxx 00000
Rathbone Jersey Limited 5,460 -- -- 327,600
Xxxxxx Xxxxx
Xxxxxx Xxxxx
Xx. Xxxxxx, Xxxxxx XX0 0XX
Channel Islands
Xxxxxxxx XxXxxx 3,000 -- -- 180,000
C/o Inveresk Research Group, Inc.
00000 Xxxxxx Xxxxxxx
Xxxxx 000
Xxxx, Xxxxx Xxxxxxxx 00000
Xxxxx Xxxxxxxx 3,000 -- -- 180,000
C/o Inveresk Research Group Limited
Xxxxxxx XX00 0XX
Xxxxxxxx, Xxxxxx Xxxxxxx
Xxxxxxx Xxxxxx 8,672 -- -- 520,320
C/o Inveresk Research Group Limited
Xxxxxxx XX00 0XX
Xxxxxxxx, Xxxxxx Xxxxxxx
Xxxxx Xxxxxxx 3,000 -- -- 180,000
c/o Inveresk Research Group Limited
Xxxxxxx XX00 0XX
Xxxxxxxx, Xxxxxx Xxxxxxx
Xxxxxx Xxxxxxxx 3,000 -- -- 180,000
c/o Inveresk Research Group Limited
Xxxxxxx XX00 0XX
Xxxxxxxx, Xxxxxx Xxxxxxx
Xxxxx Xxxxxxx 3,000 -- -- 180,000
c/o Inveresk Research Group Limited
Xxxxxxx XX00 0XX
Xxxxxxxx, Xxxxxx Xxxxxxx
Xxxxxxx XxxXxxxxxxx 3,000 -- -- 180,000
c/o Inveresk Research Group Limited
Xxxxxxx XX00 0XX
Xxxxxxxx, Xxxxxx Xxxxxxx
Xxxxx Xxxxxxxxx 3,000 -- -- 180,000
c/o Inveresk Research Group Limited
Xxxxxxx XX00 0XX
Xxxxxxxx, Xxxxxx Xxxxxxx
Xxxx Xxxxxxxx 3,000 -- -- 180,000
c/o Inveresk Research Group Limited
Xxxxxxx XX00 0XX
Xxxxxxxx, Xxxxxx Xxxxxxx
Xxxxxx Xxxxxxxx 3,000 -- -- 180,000
c/o Inveresk Research Group Limited
Xxxxxxx XX00 0XX
Xxxxxxxx, Xxxxxx Xxxxxxx
Xxxx Xxxxxxxxx 3,000 -- -- 180,000
c/o Inveresk Research Group Limited
Xxxxxxx XX00 0XX
Xxxxxxxx, Xxxxxx Xxxxxxx
IN WITNESS WHEREOF, the parties have executed this Exchange Agreement
as of the date first written above.
INVERESK RESEARCH GROUP, INC.
By: /S/ Xxxx Xxxxx
_____________________________
Name: Xxxx Xxxxx
Title: Chief Financial Officer
Address for Notices: 00000 Xxxxxx Xxxxxxx
Xxxxx 000
Xxxx, X.X. 00000
with a copy (which shall not constitute notice) to:
Xxxxxxxx Chance Xxxxxx & Xxxxx LLP
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxx X. Xxxxx
Xxxx X. Xxxxxxxx
IN WITNESS WHEREOF, the parties have executed this Exchange Agreement
as of the date first written above.
Signed by Xxxx Xxxxx, solely in
his capacity as escrow agent, in the presence
of this witness:
/s/ Xxxx Xxxxx /s/ Xxxxxxx X. Xxxx
___________________________________ ___________________________________
Name: Xxxx Xxxxx Name of Witness: Xxxxxxx X. Xxxx
Address for Notices: 00000 Xxxxxx Xxxxxxx
Xxxxx 000
Xxxx, X.X. 00000
IN WITNESS WHEREOF, the parties have executed this Exchange Agreement
as of the date first written above.
Signed for and on behalf of Candover
Investments PLC in the presence
of this witness:
/s/ Xxxxxxx Xxxxxx /s/ Xxxx Xxxxxx
By:___________________________________________ ______________________________
Name: Xxxxxxx Xxxxxx Name of Witness:
Xxxx Xxxxxx
Signed for and on behalf of
Candover (Trustees) Limited in the
presence of this witness:
/s/ Xxxxxxx Xxxxxx /s/ Xxxx Xxxxxx
By:___________________________________________ ______________________________
Name: Xxxxxxx Xxxxxx Name of Witness:
Xxxx Xxxxxx
Signed for and on behalf of Candover 1997
UK No.1 Limited Partnership in the presence
of this witness:
/s/ Xxxxxxx Xxxxxx /s/ Xxxx Xxxxxx
By:___________________________________________ ______________________________
Name: Xxxxxxx Xxxxxx Name of Witness:
Xxxx Xxxxxx
Signed for and on behalf of
Candover 1997 UK No. 2 Limited Partnership
in the presence of this witness:
/s/ Xxxxxxx Xxxxxx /s/ Xxxx Xxxxxx
By:___________________________________________ ______________________________
Name: Xxxxxxx Xxxxxx Name of Witness:
Xxxx Xxxxxx
Signed for and on behalf of Candover
1997 US No. 1 Limited Partnership
in the presence of this witness:
By: /s/ Xxxxxxx Xxxxxx /s/ Xxxx Xxxxxx
___________________________________________ ______________________________
Name: Xxxxxxx Xxxxxx Name of Witness:
Xxxx Xxxxxx
Signed for and on behalf of Candover
1997 US No. 2 Limited Partnership
in the presence of this witness:
By: /s/ Xxxxxxx Xxxxxx /s/ Xxxx Xxxxxx
___________________________________________ ______________________________
Name: Xxxxxxx Xxxxxx Name of Witness:
Xxxx Xxxxxx
Signed for and on behalf of Candover
1997 US No. 3 Limited Partnership
in the presence of this witness:
By: /s/ Xxxxxxx Xxxxxx /s/ Xxxx Xxxxxx
__________________________________________ ______________________________
Name: Xxxxxxx Xxxxxx Name of Witness:
Xxxx Xxxxxx
Signed for and on behalf of Dalame
Resources S.A. in the presence of this witness:
By: /s/ Xxxxx X. Le Quesne /s/ Xxxxxxxx X. Xxxxxxx
___________________________________________ ______________________________
Name: Xxxxx X. Le Quesne Name of Witness:
Title: Director Xxxxxxxx X. Xxxxxxx
Signed by Xxxx Xxxxxxxx in the presence
of this witness:
/s/ Xxxx Xxxxxxxx /s/ Xxxx Xxxxxxxx
______________________________________________ ______________________________
Name: Xxxx Xxxxxxxx Name of Witness:
Xxxx Xxxxxxxx
Signed by Xxxxxx Xxxxx in the presence
of this witness:
/s/ Xxxxxx Xxxxx /s/ Xxxxxxxx Xxx
______________________________________________ ______________________________
Name: Xxxxxx Xxxxx Name of Witness:
Xxxxxxxx Xxx
Signed by Ian Sword in the presence
of this witness:
/s/ Ian Sword /s/ Xxxxxxxx Xxx
______________________________________________ ______________________________
Name: Ian Sword Name of Witness:
Xxxxxxxx Xxx
Signed by Xxxxxxx Xxxxxx in the presence
of this witness:
/s/ Xxxxxxx Xxxxxx /s/ Xxxxxxxx Xxx
______________________________________________ ______________________________
Name: Xxxxxxx Xxxxxx Name of Witness:
Xxxxxxxx Xxx
Signed by Xxxxxxxx XxXxxx in the presence
of this witness:
/s/ Xxxxxxxx XxXxxx /s/ Xxxx Xxxxxxxxxx
______________________________________________ ______________________________
Name: Xxxxxxxx XxXxxx Name of Witness:
Xxxx Xxxxxxxxxx
Signed by Xxxxx Xxxxxxxx in the presence
of this witness:
/s/ Xxxxx Xxxxxxxx /s/ Xxxxxxxx Xxx
--------------------------------- -----------------------------
Name: Xxxxx Xxxxxxxx Name of Witness:
Xxxxxxxx Xxx
Signed by Xxxxx Xxxxxxx in the presence
of this witness:
/s/ Xxxxx Xxxxxxx /s/ Xxxxxxxx Xxx
--------------------------------- -----------------------------
Name: Xxxxx Xxxxxxx Name of Witness:
Xxxxxxxx Xxx
Signed by Xxxxxx Xxxxxxxx in the presence
of this witness:
/s/ Xxxxxx Xxxxxxxx /s/ Xxxxxxxx Xxx
--------------------------------- -----------------------------
Name: Xxxxxx Xxxxxxxx Name of Witness:
Xxxxxxxx Xxx
Signed by Xxxxx Xxxxxxx in the presence
of this witness:
/s/ Xxxxx Xxxxxxx /s/ Xxxxxxxx Xxx
--------------------------------- -----------------------------
Name: Xxxxx Xxxxxxx Name of Witness:
Xxxxxxxx Xxx
Signed by Xxxxxxx Xxxxxxxxxxx in the presence
of this witness:
/s/ Xxxxxxx Xxxxxxxxxxx /s/ Xxxxxxxx Lack
--------------------------------- -----------------------------
Name: Xxxxxxx Xxxxxxxxxxx Name of Witness:
Xxxxxxxx Lack
Signed by Xxxxx Xxxxxxxxx in the presence
of this witness:
/s/ Xxxxx Xxxxxxxxx /s/ Xxxxxxxx Xxx
--------------------------------------------- -----------------------------
Name: Xxxxx Xxxxxxxxx Name of Witness: Xxxxxxxx Xxx
Signed by Xxxx Xxxxxxxx in the presence
of this witness:
/s/ Xxxxx Xxxxxxxx /s/ Xxxxxxxx Xxx
--------------------------------------------- -----------------------------
Name: Xxxx Xxxxxxxx Name of Witness: Xxxxxxxx Xxx
Signed by Xxxxxx Xxxxxxxx in the
presence of this witness:
/s/ Xxxxxx Xxxxxxxx /s/ Xxxxxxxx Xxx
--------------------------------------------- -----------------------------
Name: Xxxxxx Xxxxxxxx Name of Witness: Xxxxxxxx Xxx
Signed by Xxxx Xxxxxxxxx in the
presence of this witness:
/s/ Xxxx Xxxxxxxxx /s/ Xxxxxxxx Xxx
--------------------------------------------- -----------------------------
Name: Xxxx Xxxxxxxxx Name of Witness: Xxxxxxxx Xxx
Signed for and on behalf of Rathbone Jersey
Limited in the presence of this witness:
/s/ Xxxx Xxxxxxxx /s/ Xxxx Xxxxxxx /s/ S.D. Xxxxxxxx
______________________________________________ ______________________________
Name: Xx. Xxxx Xxxxxx Xxxxxxxx Name of Witness:
Xx. Xxxx Xxxxxxx Mr. S.D. Xxxxxxxx
Acknowledged and agreed by
Inveresk Research Group Limited
solely for the purpose of Section 9.1 and 9.2
in the presence of this witness:
By: /s/ Xxxxxx X. Xxxxx /s/ Xxxxxxxx Lack
___________________________________________ ______________________________
Name: Xxxxxx X. Xxxxx Name of Witness:
Title: Chief Executive Xxxxxxxx Lack
