EXHIBIT 1.1
12,000,000 Shares of Common Stock
INVERESK RESEARCH GROUP, INC.
UNDERWRITING AGREEMENT
[Date]
BEAR, XXXXXXX & CO. INC.
UBS WARBURG LLC
XXXXXXX XXXXX & COMPANY, L.L.C.
XX XXXXX SECURITIES CORPORATION
as Representatives of the
several Underwriters named in
Schedule I attached hereto
c/o Bear, Xxxxxxx & Co. Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies/Gentlemen:
Inveresk Research Group, Inc., a corporation organized and existing
under the laws of Delaware (the "Company"), proposes, subject to the terms and
conditions stated herein, to issue and sell to the several underwriters named in
Schedule I hereto (the "Underwriters") an aggregate of 12,000,000 shares (the
"Firm Shares") of its common stock, par value $.01 per share (the "Common
Stock") and, for the sole purpose of covering over-allotments in connection with
the sale of the Firm Shares, at the option of the Underwriters, up to an
additional 1,800,000 shares (the "Additional Shares") of Common Stock. The Firm
Shares and any Additional Shares purchased by the Underwriters are referred to
herein as the "Shares". The Shares are more fully described in the Registration
Statement referred to below.
1. Representations and Warranties of the Company. The Company
represents and warrants to, and agrees with, each of the Underwriters that:
(a) The Company has filed with the Securities and Exchange
Commission (the "Commission") a registration statement on Form S-1 (No.
333-85356), and amendments thereto, and related preliminary prospectuses for the
registration under the Securities Act of 1933, as amended (the "Securities
Act"), of the Shares, which registration statement, as so amended (including
post-effective amendments, if any), has been declared
effective by the Commission and copies of which have heretofore been delivered
to the Underwriters. The registration statement, as amended at the time it
became effective, including the exhibits and information (if any) deemed to be
part of the registration statement at the time of effectiveness pursuant to Rule
430A under the Securities Act, is hereinafter referred to as the "Registration
Statement." 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 Securities
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. Other than a Rule 462(b) Registration Statement, which
became effective upon filing, no other document with respect to the Registration
Statement has heretofore been filed with the Commission. All of the Shares have
been registered under the Securities Act pursuant to the Registration Statement
or, if any Rule 462(b) Registration Statement is filed, will be duly registered
under the Securities Act with the filing of such Rule 462(b) Registration
Statement. No stop order suspending the effectiveness of either the Registration
Statement or the Rule 462(b) Registration Statement, if any, has been issued and
no proceeding for that purpose has been initiated or threatened by the
Commission. The Company, if required by the Securities Act and rules and
regulations of the Commission (together, the "Rules and Regulations"), proposes
to file the Prospectus (as hereinafter defined) with the Commission pursuant to
Rule 424(b) of the Rules and Regulations. The Prospectus, in the form in which
it is to be filed with the Commission pursuant to Rule 424(b) of the Rules and
Regulations, or, if the Prospectus is not to be filed with the Commission
pursuant to Rule 424(b), the Prospectus in the form included as part of the
Registration Statement at the time the Registration Statement became effective,
is hereinafter referred to as the "Prospectus," except that if any revised
prospectus or prospectus supplement shall be provided to the Underwriters by the
Company for use in connection with the offering and sale of the Shares (the
"Offering") which differs from the Prospectus (whether or not such revised
prospectus or prospectus supplement is required to be filed by the Company
pursuant to Rule 424(b) of the Rules and Regulations), the term "Prospectus"
shall refer to such revised prospectus or prospectus supplement, as the case may
be, from and after the time it is first provided to the Underwriters for such
use. Any preliminary prospectus or prospectus subject to completion included in
the Registration Statement or filed with the Commission pursuant to Rule 424
under the Securities Act is hereafter called a "Preliminary Prospectus." All
references in this Agreement to the Registration Statement, the Rule 462(b)
Registration Statement, the Preliminary Prospectus and the Prospectus, or any
amendments or supplements to any of the foregoing shall be deemed to include any
copy thereof filed with the Commission pursuant to its Electronic Data
Gathering, Analysis and Retrieval System ("XXXXX").
(b) At the time of the effectiveness of the Registration
Statement or any Rule 462(b) Registration Statement or the effectiveness of any
post-effective amendment to the Registration Statement, when the Prospectus is
first filed with the Commission pursuant to Rule 424(b) of the Rules and
Regulations, when any supplement to or amendment of the Prospectus is filed with
the Commission, and at the Closing Date and the Additional Closing Date, if any
(as hereinafter respectively defined), the Registration Statement and the
Prospectus and any amendments thereof and supplements thereto complied or will
comply in all material respects with the applicable provisions of the Securities
Act and the Rules and Regulations and did not and will not contain an untrue
statement of a material fact and did not and will not omit to state any material
fact required to be stated therein or necessary in order to make the
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statements therein (i) in the case of the Registration Statement, not misleading
and (ii) in the case of the Prospectus or any related Preliminary Prospectus, in
light of the circumstances under which they were made, not misleading. When any
Preliminary Prospectus was first filed with the Commission (whether filed as
part of the registration statement for the registration of the Shares or any
amendment thereto or pursuant to Rule 424(a) of the Rules and Regulations) and
when any amendment thereof or supplement thereto was first filed with the
Commission, such Preliminary Prospectus and any amendments thereof and
supplements thereto complied in all material respects with the applicable
provisions of the Securities Act and the Rules and Regulations and did not
contain an untrue statement of a material fact and did not omit to state any
material fact required to be stated therein or necessary in order to make the
statements therein in light of the circumstances under which they were made not
misleading. No representation and warranty is made in this subsection (b),
however, with respect to any information contained in or omitted from the
Registration Statement or the Prospectus or any related Preliminary Prospectus
or any amendment thereof or supplement thereto in reliance upon and in
conformity with information furnished in writing to the Company by or on behalf
of any Underwriter through you specifically for use therein. The parties
acknowledge and agree that such information provided on or on behalf of any
Underwriter consists solely of the material included in paragraphs three,
twelve, thirteen, fourteen, fifteen and sixteen under the caption "Underwriting"
in the Prospectus.
(c) Xxxxxx Xxxxxxxx, who have audited the financial statements
and supporting schedules of the Company included in the Registration Statement,
and Ernst & Young LLP, who have certified certain financial statements of
ClinTrials Research Inc. included in the Registration Statement, each are
independent public accountants as required by the Act and the Rules and
Regulations.
(d) Subsequent to the respective dates as of which information
is given in the Registration Statement and the Prospectus, except as set forth
in the Registration Statement and the Prospectus, the Company has not paid any
dividends on its capital stock and there has been no material adverse change or
any development involving a prospective material adverse change in the business,
properties, condition (financial or other) or results of operations of the
Company and each subsidiary of the Company listed on Exhibit A (the
"Subsidiaries"), taken as a whole, whether or not arising from transactions in
the ordinary course of business (a "Material Adverse Change"), and since the
date of the latest balance sheet presented in the Registration Statement and the
Prospectus, neither the Company nor any of the Subsidiaries has incurred or
undertaken any liabilities or obligations, direct or contingent, which are
material to the Company and the Subsidiaries, taken as a whole, except for
liabilities or obligations which are reflected in the Registration Statement and
the Prospectus.
(e) This Agreement and the transactions contemplated herein
have been duly and validly authorized by all necessary corporate action of the
Company and this Agreement has been duly and validly executed and delivered by
the Company.
(f) The execution, delivery, and performance of this Agreement
and the consummation of the transactions contemplated hereby do not and will not
(i) conflict with or result in a breach of any of the terms and provisions of,
or constitute a default (or an event which with notice or lapse of time, or
both, would constitute a default) under, or result in the creation or
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imposition of any lien, charge or encumbrance upon any property or assets of the
Company or any of the Subsidiaries pursuant to, any indenture, mortgage, deed of
trust, loan agreement or other agreement, instrument, franchise, license or
permit to which the Company or any of the Subsidiaries is a party or by which
the Company or any of the Subsidiaries or their respective properties or assets
may be bound, except where any such conflict, breach, default, lien, charge or
encumbrance would not have, singly or in the aggregate with any other such
conflicts, breaches, defaults, liens, charges or encumbrances, a Material
Adverse Effect (as hereinafter defined), or (ii) violate or conflict with any
provision of the certificate or articles of incorporation, by-laws, certificate
of formation, limited liability company agreement, partnership agreement or
other organizational documents of the Company or any of the Subsidiaries or any
judgment, decree, order, statute, rule or regulation of any court or any public,
governmental or regulatory agency or body having jurisdiction over the Company
or any of the Subsidiaries or any of their respective properties, operations or
assets. No consent, approval, authorization, order, registration, filing,
qualification, license or permit of or with any court or any public,
governmental or regulatory agency or body having jurisdiction over the Company
or any of the Subsidiaries or any of their respective properties or assets or
from any third party is required for the execution, delivery and performance of
this Agreement or the consummation of the transactions contemplated hereby, by
the Registration Statement and by the Prospectus, including the issuance, sale
and delivery of the Shares to be issued, sold and delivered by the Company
hereunder, except (i) the registration under the Securities Act of the Shares,
and (ii) such consents, approvals, authorizations, orders, registrations,
filings, qualifications, licenses and permits as (A) may be required under state
securities or Blue Sky laws or the by-laws and rules of the National Association
of Securities Dealers, Inc. or NASD Regulation, Inc. in connection with the
purchase and distribution of the Shares by the Underwriters or (B) are listed on
Schedule B hereto or are immaterial individually or in the aggregate, and which,
in either case, have been duly obtained on or prior to the Closing Date.
(g) The Company has the authorized capitalization set forth in
the Prospectus. As of the date hereof (and giving effect to the exchange of
shares described under the caption "Change in Ultimate Parent" in the
Registration Statement and the Prospectus), a true and complete list of the
record shareholders of the Company and the share ownership of each such
shareholder, and of the optionholders of the Company, the number of options held
by each such optionholder and the exercise prices and expiration dates thereof,
is set forth in Schedule III hereto. All of the issued and outstanding shares of
capital stock of the Company have been duly and validly authorized and issued,
are fully paid and non-assessable, and were not issued in violation of or
subject to any preemptive or similar rights; the Shares to be delivered by the
Company on the Closing Date and the Additional Closing Date, if any (as
hereinafter respectively defined), have been duly and validly authorized and,
when delivered by the Company in accordance with this Agreement, will be duly
and validly authorized and issued, fully paid and non-assessable and will not
have been issued in violation of or subject to any preemptive or similar rights
that entitle or will entitle any person to acquire any shares of capital stock
from the Company upon issuance or sale thereof by the Company; all of the issued
shares of capital stock of each of its Subsidiaries has been duly and validly
authorized and issued and are fully paid and non-assessable and are owned
directly or indirectly by the Company free and clear of all liens, encumbrances,
equities or claims; and the authorized capital stock of the Company conforms to
the descriptions thereof contained in the Registration Statement and the
Prospectus.
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(h) The Subsidiaries are the only subsidiaries (as defined in
Rule 405 of the Securities Act) of the Company. Each of the Company and the
Subsidiaries has been duly organized or formed and is validly existing as a
corporation, partnership or limited liability company and (in jurisdictions
where the concept is applicable) is in good standing under the laws of its
jurisdiction of incorporation or formation. Each of the Company and the
Subsidiaries is duly qualified to do business and (in jurisdictions where the
concept is applicable) is in good standing as a foreign corporation, partnership
or limited liability company in each jurisdiction in which the character or
location of its properties (owned, leased or licensed) or the nature or conduct
of its business makes such qualification necessary, except for those failures to
be so qualified or in good standing which will not in the aggregate have a
material adverse effect on (and there shall have been no development involving a
prospective material adverse effect on) (i) the condition (financial or
otherwise), results of operations, business or properties of the Company and the
Subsidiaries taken as a whole, or (ii) the consummation of the transactions
contemplated by this Agreement or the Company's performance of its obligations
hereunder or thereunder (a "Material Adverse Effect"). Each of the Company and
the Subsidiaries has all requisite power and authority, and all necessary
consents, approvals, authorizations, orders, registrations, qualifications,
licenses and permits (collectively, the "Consents") of and from all public,
regulatory or governmental agencies and bodies, to own, lease and operate its
properties and conduct its business as now being conducted and as described in
the Registration Statement and the Prospectus, and each such Consent is valid
and in full force and effect, and neither the Company nor any of the
Subsidiaries has received notice of any investigation or proceedings which
reasonably might be expected to result in the revocation of any such Consent,
except where the failure of any such Consent to be valid and in full force and
effect would not have, considered individually or when aggregated with any other
such failures, a Material Adverse Effect. Each of the Company and the
Subsidiaries is in compliance with all applicable laws, rules, regulations,
ordinances and directives, except where failure to be in compliance would not
have, considered individually or when aggregated with any other such failures to
be in compliance, a Material Adverse Effect. No Consent contains a materially
burdensome restriction not adequately disclosed in the Registration Statement
and the Prospectus.
(i) Except as described in the Prospectus, there is no legal
or governmental proceeding, including routine litigation, to which the Company
or any of the Subsidiaries is a party or of which any property of the Company or
any of the Subsidiaries is the subject which, if determined adversely to the
Company or any of the Subsidiaries, is reasonably likely to have, considered
individually or when aggregated with any other such proceedings, a Material
Adverse Effect, and to the best of the Company's knowledge, no such proceeding
is threatened or contemplated by governmental authorities or threatened by
others, and the defense of all such claims against the Company and the
Subsidiaries in the aggregate, including routine litigation, will not have a
Material Adverse Effect on the Company.
(j) Neither the Company nor any of its affiliates have taken,
nor will any of them take, directly or indirectly, any action designed to cause
or result in, or which constitutes or which might reasonably be expected to
constitute, the stabilization or manipulation of the price of the shares of
Common Stock to facilitate the sale or resale of the Shares.
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(k) Except for the Subsidiaries, the Company owns no capital
stock or other beneficial interest, directly or indirectly, in any corporation,
partnership, joint venture or other business entity.
(l) The financial statements, including the notes thereto, and
supporting schedules included in the Registration Statement and the Prospectus
present fairly the financial position of the Company and its consolidated
subsidiaries and of ClinTrials Research Inc. and its consolidated subsidiaries
as of the dates indicated and the cash flows and results of operations thereof
for the periods specified; except as otherwise stated in the Registration
Statement, said financial statements have been prepared in conformity with
generally accepted accounting principles applied on a consistent basis
throughout the periods involved and the supporting schedules included in the
Registration Statement present fairly the information required to be stated
therein. The other financial and statistical information and data included in
the Registration Statement and the Prospectus present fairly the information
included therein and have been prepared on a basis consistent with that of the
financial statements included in the Registration Statement and the Prospectus
and the books and records of the respective entities presented therein. The pro
forma and as adjusted financial information included in the Prospectus has been
properly compiled and prepared in accordance with the applicable requirements of
the Securities Act and the Rules and Regulations and includes all adjustments
necessary to present fairly the pro forma financial position of the respective
entity or entities presented therein at the respective dates indicated and the
results of their operations for the respective periods specified. There are no
historical or pro forma financial statements which are required to be included
in the Registration Statement and Prospectus in accordance with Regulation S-X
which has not been included as so required.
(m) The assumptions used in preparing the pro forma financial
information included in the Registration Statement and the Prospectus provide in
the good faith opinion of the Company a reasonable basis for presenting the
significant effects directly attributable to the transactions or events
described therein, the related pro forma adjustments give appropriate effect to
those assumptions, and the pro forma column therein reflect the proper
application of those adjustments to the corresponding historical financial
statement amounts.
(n) Except as disclosed in the Registration Statement and the
Prospectus, no holder of securities of the Company has any rights to the
registration of securities of the Company because of the filing of the
Registration Statement or otherwise in connection with the sale of the Shares
contemplated hereby, and any such rights so disclosed have either been fully
complied with by the Company or effectively waived by the holders thereof, and
any such waivers remain in full force and effect.
(o) The Company is not, and upon consummation of the
transactions contemplated hereby, and at all times up to and including the
application of net proceeds as described in the Prospectus, will not be, subject
to registration as an "investment company" under the Investment Company Act of
1940.
(p) The Company and the Subsidiaries have good and marketable
title to all real and personal property reflected as owned by them in the
financial statements, including the notes thereto, referred to in the first
sentence of subsection (l) above (or elsewhere in the
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Registration Statement or the Prospectus), in each case free and clear of all
liens, encumbrances and defects except such as are described in the Registration
Statement and the Prospectus or such as would not, singly or in the aggregate,
have a Material Adverse Effect; and any real property and buildings held under
lease or sublease by the Company and the Subsidiaries are held by them under
valid, subsisting and enforceable leases with such exceptions as would not,
singly or in the aggregate, have a Material Adverse Effect. Neither the Company
nor any of the Subsidiaries has received any notice of any claim adverse to
their ownership of any real or personal property or of any claim against the
continued possession of any real property, whether owned or held under lease or
sublease by the Company or any of the Subsidiaries, which, individually or when
aggregated with other such claims, would have a Material Adverse Effect.
(q) The Company and each of the Subsidiaries have accurately
prepared and timely (with extensions) filed all federal, state and other tax
returns that are required to be filed by it and has paid or made provision for
the payment of all taxes, assessments, governmental or other similar charges,
including without limitation, all sales and use taxes and all taxes which the
Company and each of the Subsidiaries is obligated to withhold from amounts
owning to employees, creditors and third parties, with respect to the periods
covered by such tax returns (whether or not such amounts are shown as due on any
tax return) except where the failure to file or pay could have (individually or
when aggregated with any other such failures) a Material Adverse Effect. No
deficiency assessment with respect to a proposed adjustment of the Company's or
any of the Subsidiaries' federal, state or other taxes is pending or, to the
best of the Company's knowledge, threatened which would have, individually or
when aggregated with any other such deficiency assessments, a Material Adverse
Effect. There is no tax lien, whether imposed by any federal, state, or other
taxing authority, outstanding against the assets, properties or business of the
Company or any of the Subsidiaries.
(r) The Common Stock is registered pursuant to Section 12(g)
of the Exchange Act and the outstanding shares of Common Stock (including the
Shares) are authorized for inclusion on The Nasdaq Stock Market's National
Market (the "Nasdaq National Market"), and the Company has taken no action
designed to, or likely to have the effect of, terminating the registration of
the Common Stock under the Exchange Act or causing the Common Stock to cease to
be included in the Nasdaq National Market, nor has the Company received any
notification that the Commission or the Nasdaq National Market is contemplating
terminating such registration or inclusion.
(s) There are no contracts or other documents (including,
without limitation, any voting agreement), which are required to be described in
the Registration Statement and the Prospectus or filed as exhibits to the
Registration Statement by the Securities Act or by the Rules and Regulations and
which have not been so described or filed.
(t) The Company and its Subsidiaries maintain a system of
internal accounting controls sufficient to provide reasonable assurances 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 accountability for assets, (iii) access to
assets is permitted only in accordance with management's general or specific
authorization, and (iv) the
7
recorded accounting for assets is compared with existing assets at reasonable
intervals and appropriate action is taken with respect to any differences.
(u) Neither the Company nor any of the Subsidiaries (i) is in
violation of its charter or by-laws, partnership agreement, limited liability
company agreement or other organizational documents, (ii) is in default under,
and no event has occurred which, with notice or lapse of time or both, would
constitute such a default or result in the creation or imposition of any lien,
charge or encumbrance upon any property or assets of the Company or any of the
Subsidiaries pursuant to, any indenture, mortgage, deed of trust, loan agreement
or other agreement or instrument to which it is a party or by which it is bound
or to which any of its property or assets is subject or (iii) is in violation in
any respect of any statute or any judgment, decree, order, rule or regulation of
any court or governmental or regulatory agency or body having jurisdiction over
the Company or any of the Subsidiaries or any of their properties or assets,
except any violation, default, lien, charge or encumbrance referred to in (ii)
or (iii) above that would not have, considered individually or when aggregated
with any other such violations, defaults, liens, charges or encumbrances, a
Material Adverse Effect.
(v) The Company and each of the Subsidiaries owns or possesses
adequate right to use all patents, patent applications, trademarks, service
marks, trade names, trademark registrations, service xxxx registrations,
copyrights, licenses, formulae, customer lists, and know-how and other
intellectual property (including trade secrets and other unpatented and/or
unpatentable proprietary or confidential information, systems or procedures)
necessary for the conduct of their respective businesses as being conducted and
as described in the Registration Statement and Prospectus and have no reason to
believe that the conduct of their respective businesses conflicts with or will
conflict with, and have not received any notice of any claim of conflict with,
any such right of others. To the best of the Company's knowledge, all material
technical information developed by and belonging to the Company which has not
been patented has been kept confidential. Neither the Company nor any of the
Subsidiaries has granted or assigned to any other person or entity any right to
sell the current services of the Company or those services described in the
Registration Statement and Prospectus.
(w) No labor disturbance by the employees of the Company or
any of the Subsidiaries exists or, to the best of the Company's knowledge, is
imminent which might be expected to have a Material Adverse Effect.
(x) No "prohibited transaction" (as defined in Section 406 of
the Employee Retirement Income Security Act of 1974, as amended, including the
regulations and published interpretations thereunder ("ERISA"), or Section 4975
of the Internal Revenue Code of 1986, as amended from time to time (the "Code"),
or "accumulated funding deficiency" (as defined in Section 302 of ERISA) or any
of the events set forth in Section 4043(b) of ERISA (other than events with
respect to which the 30-day notice requirement under Section 4043 of ERISA has
been waived) has occurred with respect to any employee benefit plan sponsored or
maintained by the Company which could have a Material Adverse Effect; each
employee benefit plan is in compliance in all material respects with applicable
U.S. and non-U.S. law including ERISA and the Code; the Company has not incurred
and does not expect to incur liability under Title IV of ERISA with respect to
the termination of, or withdrawal from any "pension plan"; and each "pension
plan" (as defined in ERISA) for which the Company would have any liability
8
that is intended to be qualified under Section 401(a) of the Code is so
qualified in all material respects and nothing has occurred, whether by action
or by failure to act, which could cause the loss of such qualification.
(y) There has been no storage, generation, transportation,
handling, treatment, disposal, discharge, emission, or other release of any kind
of toxic or other wastes or other hazardous substances by, due to, or caused by
the Company (or, to the best of the Company's knowledge, any other entity for
whose acts or omissions the Company is or may be liable) upon any property now
or previously owned or leased by the Company or any of the Subsidiaries, or upon
any other property, in violation of any statute or any ordinance, rule,
regulation, order, judgment, decree or permit or which would, under any statute
or any ordinance, rule (including rule of common law), regulation, order,
judgment, decree or permit, give rise to any liability, except for any violation
or liability which would not have, singularly or in the aggregate with all such
violations and liabilities, a Material Adverse Effect; there has been no
disposal discharge, emission or other release of any kind onto such property or
into the environment surrounding such property of any toxic or other wastes or
other hazardous substances with respect to which the Company or any of the
Subsidiaries has knowledge, except for any such disposal, discharge, emission or
other release of any kind which would not have, individually or when aggregated
with any other such disposals, discharges, emissions or releases, a Material
Adverse Effect.
(z) The Company has not prior to the date hereof offered or
sold any securities which would be "integrated" with the offer and sale of the
Shares pursuant to the Registration Statement.
(aa) No relationship, direct or indirect, exists between or
among any of the Company or any affiliate of the Company, on the one hand, and
any director, officer, shareholder, customer or supplier of the Company or any
affiliate of the Company, on the other hand, which is required by the Securities
Act or by the Rules and Regulations to be described in the Registration
Statement or the Prospectus which is not so described or is not described as
required.
(bb) The statistical and market-related data included in the
Registration Statement and the Prospectus are based on or derived from sources
which the Company reasonably and in good faith believes are reliable and
accurate, and such data agree with the sources from which they are derived.
(cc) Each of the Company and the Subsidiaries maintain
insurance with insurers of recognized financial responsibility of the types and
in the amounts (i) generally deemed adequate for their businesses and consistent
with insurance coverage maintained by similar companies in similar businesses
and (ii) required under any of the Company's or any of the Subsidiaries'
agreements, licenses or other contracts, all of which insurance is in full force
and effect; the Company has no reason to believe that it or any of the
Subsidiaries will not be able to renew its existing insurance as and when such
coverage expires or to obtain similar insurance with similar insurers adequate
and customary for its business and sufficient to satisfy any requirements of its
contracts at a cost that would not have a Material Adverse Effect.
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(dd) As of the date of this Agreement and except as described
in the Registration Statement and the Prospectus, neither the Company nor any of
the Subsidiaries is required to file or obtain any registration, application,
license, request for exemption, permit or other regulatory authorization with
the U.S. Food and Drug Administration in order to conduct its business as
described in the Registration Statement and Prospectus.
(ee) Each of the Company and the Subsidiaries conduct their
business in compliance with applicable Good Laboratory Practice, Good
Manufacturing Practice and Good Clinical Practice standards, except where any
non-compliance (singly or when aggregated with other such instances) would not
have a Material Adverse Effect.
(ff) No Subsidiary is currently prohibited, directly or
indirectly, from paying any dividends to the Company, from making any other
distribution on such Subsidiary's capital stock, from repaying to the Company
any loans or advances to such Subsidiary from the Company or from transferring
any of such Subsidiary's property or assets to the Company or any other
Subsidiary, except as described in or contemplated by the Registration Statement
and Prospectus or as set forth in that certain Facilities Agreement dated
February 22, 2001 among the Company and (pursuant to a Substitution Deed dated
July 19, 2001) the banks named in such Substitution Deed.
(gg) Upon the Closing, (i) the exchange of all outstanding
shares of capital stock of Inveresk Research Group Limited for shares of Common
Stock of the Company shall have irrevocably occurred in accordance with the
terms of that certain Exchange Agreement by Declaration of Trust dated as of
April 2, 2002 by and among the Company, Xxxx Xxxxx, in his capacity as escrow
agent pursuant to that agreement and the shareholders of Inveresk Research Group
Limited, and all outstanding shares of capital stock of Inveresk Research Group
Limited shall be owned by the Company, and (ii) all outstanding options to
purchase shares of capital stock of Inveresk Research Group Limited shall have
irrevocably been cancelled in exchange for the issuance of options to purchase
shares of Common Stock in the Company.
The certificate referred to in Section 6(e) hereof, when executed and
delivered to the Representatives or to counsel for the Underwriters' pursuant
hereto, shall be deemed to be a representation and warranty by the Company to
each Underwriter as to the matters covered thereby.
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2. Purchase, Sale and Delivery of the Shares.
(a) On the basis of the representations, warranties,
covenants and agreements herein contained, but subject to the terms and
conditions herein set forth, the Company agrees to sell to each Underwriters and
each Underwriters, severally and not jointly, agrees to purchase from the
Company, at a purchase price per share of $_______, the number of Firm Shares
set forth opposite the respective names of such Underwriter on Schedule I hereto
plus any additional number of Shares which such Underwriter may become obligated
to purchase pursuant to the provisions of Section 9 hereof.
(b) Payment of the purchase price for, and delivery
of certificates for, the Firm Shares shall be made at the office of Coudert
Brothers LLP, 1114 Avenue of the Americas, New York, New York ("Underwriters'
Counsel"), or at such other place as shall be agreed upon by Bear, Xxxxxxx & Co.
Inc. and the Company, at 10:00 A.M., New York City time, on the third or (as
permitted under Rule 15c6-1 under the Exchange Act with respect to firm
commitment underwritings priced after 4:30 Eastern time on the date the Shares
are priced) fourth business day (unless postponed in accordance with the
provisions of Section 9 hereof) following the date of the effectiveness of the
Registration Statement (or, if the Company has elected to rely upon Rule 430A of
the Rules and Regulations, the third or (as permitted under Rule 15c6-1 under
the Exchange Act with respect to firm commitment underwritings priced after 4:30
Eastern time on the date the Shares are priced) fourth business day after the
determination of the initial public offering price of the Shares), or such other
time not later than ten business days after such date as shall be agreed upon by
Bear, Xxxxxxx & Co. Inc. and the Company (such time and date of payment and
delivery being herein called the "Closing Date").
Payment for the Firm Shares shall be made to the Company of
the purchase price by wire transfer in Federal (same day) funds to the Company
upon delivery of certificates for the Firm Shares to you through the facilities
of The Depository Trust Company for the respective accounts of the several
Underwriters against receipt therefor signed by you. Certificates for the Firm
Shares to be delivered to you shall be registered in such name or names and
shall be in such denominations as you may request at least two business days
before the Closing Date. The Company will permit you to examine and package such
certificates for delivery at least one full business day prior to the Closing
Date.
(c) In addition, on the basis of the representations,
warranties, covenants and agreements herein contained, but subject to the terms
and conditions herein set forth, the Company hereby grants to the Underwriters,
acting severally and not jointly, the option to purchase up to 1,800,000
Additional Shares at the same purchase price per share to be paid by the
Underwriters to the Company for the Firm Shares as set forth in this Section 2,
for the sole purpose of covering over-allotments in the sale of Firm Shares by
the Underwriters. This option may be exercised at any time and from time to
time, in whole or in part on one or more occasions, on or before the thirtieth
day following the date of the Prospectus, by written notice by you to the
Company. Such notice shall set forth the aggregate number of Additional Shares
as to which the option is being exercised and the date and time, as reasonably
determined by you, when the Additional Shares are to be delivered (any such date
and time being herein sometimes referred to as the "Additional Closing Date");
provided, however, that the Additional Closing Date shall not be earlier than
the Closing Date or earlier than the second full business day after
11
the date on which the option shall have been exercised nor later than the eighth
full business day after the date on which the option shall have been exercised
(unless such time and date are postponed in accordance with the provisions of
Section 9 hereof). Certificates for the Additional Shares shall be registered in
such name or names and in such authorized denominations as you may request in
writing at least two full business days prior to the Additional Closing Date.
The Company will permit you to examine and package such certificates for
delivery at least one full business day prior to the Additional Closing Date.
If the option is exercised as to all or any portion of the
Additional Shares, each Underwriter, acting severally and not jointly, will
purchase that proportion of the total number of Additional Shares then being
purchased which the number of Firm Shares set forth opposite the name of such
Underwriter in Schedule I hereto (or such number increased as set forth in
Section 9 hereof) bears to the total number of Firm Shares being purchased from
the Company, subject, however, to such adjustments to eliminate any fractional
shares as Bear Xxxxxxx & Co. Inc. in its sole discretion shall make.
Payment for the Additional Shares shall be made to the Company
of the purchase price by wire transfer in Federal (same day) funds to the
Company at the offices of Underwriters' Counsel, or such other location as may
be mutually acceptable, upon delivery of the certificates for the Additional
Shares to you through the facilities of The Depositary Trust Company for the
respective accounts of the Underwriters against receipt therefor signed by you.
3. Offering. Upon release by the Company to the Underwriters
of the Firm Shares, the Underwriters propose to offer the Shares for sale to the
public upon the terms and conditions set forth in the Prospectus.
4. Covenants of the Company. The Company covenants and agrees
with the Underwriters that:
(a) The Registration Statement and any amendments
thereto have become effective, and if Rule 430A is used or the filing of the
Prospectus is otherwise required under Rule 424(b), the Company will file the
Prospectus (properly completed if Rule 430A has been used) pursuant to Rule
424(b) within the prescribed time period and will provide evidence satisfactory
to you of such timely filing.
The Company will notify you as promptly as possible (and, if
requested by you, will confirm such notice in writing) (i) when the Registration
Statement and any amendments thereto become effective, (ii) of any request by
the Commission for any amendment of or supplement to the Registration Statement
or the Prospectus or for any additional information, (iii) of the Company's
intention to file or prepare any supplement or amendment to the Registration
Statement or the Prospectus, (iv) of the mailing or the delivery to the
Commission for filing of any amendment of or supplement to the Registration
Statement or the Prospectus, (v) of the issuance by the Commission of any stop
order suspending the effectiveness of the Registration Statement or any
post-effective amendment thereto or of the initiation, or the threatening, of
any proceedings therefor, it being understood that the Company shall make every
effort to avoid the issuance of any such stop order, (v) of the receipt of any
comments from the Commission, and (vi) of the receipt by the Company of any
notification with respect to the
12
suspension of the qualification of the Shares for sale in any jurisdiction or
the initiation or threatening of any proceeding for that purpose. If the
Commission shall propose or enter a stop order at any time, the Company will
make every reasonable effort to prevent the issuance of any such stop order and,
if issued, to obtain the lifting of such order as soon as possible. The Company
will not file any amendment to the Registration Statement or any amendment of or
supplement to the Prospectus (including the prospectus required to be filed
pursuant to Rule 424(b)) that differs from the prospectus on file at the time of
the effectiveness of the Registration Statement to which you shall object in
writing after being timely furnished in advance a copy thereof.
(b) The Company shall comply with the Securities Act
and the Exchange Act to permit completion of the distribution as contemplated in
this Agreement, the Registration Statement and the Prospectus. If at any time
when a prospectus relating to the Shares is required to be delivered under the
Securities Act or the Exchange Act in connection with the sales of Shares, any
event shall have occurred as a result of which the Prospectus as then amended or
supplemented would, in the judgment of the Underwriters or the Company, include
an untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements therein, in
the light of the circumstances existing at the time of delivery to the
purchaser, not misleading, or if it shall be necessary at any time to amend or
supplement the Prospectus or Registration Statement to comply with the
Securities Act or the Rules and Regulations, the Company will notify you
promptly and prepare and file with the Commission, subject to the second
paragraph of Section 5(A)(a) hereof, an appropriate amendment or supplement (in
form and substance satisfactory to you) which will correct such statement or
omission or which will effect such compliance and will use its best efforts to
have any amendment to the Registration Statement declared effective as soon as
possible.
(c) The Company will promptly deliver to each of you
and Underwriters' Counsel a signed copy of the Registration Statement, as
initially filed and all amendments thereto, including all exhibits filed
therewith, and will maintain in the Company's files manually signed copies of
such documents for at least five years after the date of filing. The Company
will promptly deliver to each of the Underwriters such number of copies of any
Preliminary Prospectus, the Prospectus, the Registration Statement, and all
amendments of and supplements to such documents, if any, as you may reasonably
request. Prior to 10:00 A.M., New York time, on the business day next succeeding
the date of this Agreement and from time to time thereafter, the Company will
furnish the Underwriters with copies of the Prospectus in New York City in such
quantities as you may reasonably request.
(d) The Company consents to the use and delivery of
the Preliminary Prospectus by the Underwriters in accordance with Rule 430 and
Section 5(b) of the Securities Act.
(e) The Company will use its best efforts, in
cooperation with you, at or prior to the time of effectiveness of the
Registration Statement, to qualify the Shares for offering and sale under the
securities laws relating to the offering or sale of the Shares of such
jurisdictions as you may designate and to maintain such qualification in effect
for so long as required for the distribution thereof; except that in no event
shall the Company be obligated in
13
connection therewith to qualify as a foreign corporation or to execute a general
consent to service of process.
(f) The Company will make generally available to its
security holders and to the Underwriters as soon as practicable, but in any
event not later than eighteen months after the effective date of the
Registration Statement (as defined in Rule 158(c) under the Securities Act), an
earnings statement of the Company and the Subsidiaries (which need not be
audited) complying with Section 11(a) of the Securities Act and the rules and
regulations of the Commission thereunder (including, at the option of the
Company, Rule 158).
(g) During the period of 180 days from the date of
the Prospectus, the Company will not, directly or indirectly, without the prior
written consent of Bear, Xxxxxxx & Co. Inc., issue, sell, offer or agree to
sell, grant any option, warrant or other right to purchase or otherwise sell or
dispose of (or announce any offer of sale, contract of sale, sale, grant of any
option, warrant or other right to purchase or other sale or disposition of),
pledge, make any short sale or maintain any short position, establish or
maintain a "put equivalent position" (within the meaning of Rule 16-a-1(h)under
the Exchange Act), enter into any swap, derivative transaction or other
arrangement that transfers to another, in whole or in part, any of the economic
consequences of ownership of the Common Stock (whether any such transaction is
to be settled by delivery of Common Stock, other securities, cash or other
consideration) or otherwise dispose of, any Common Stock (or any securities
convertible into, exercisable for or exchangeable for Common Stock) or interest
therein of the Company or of any of the Subsidiaries, and the Company will
obtain the undertaking of each of its officers and directors and such of its
shareholders as have been heretofore designated by you and listed on Schedule II
attached hereto not to engage in any of the aforementioned transactions on their
own behalf (for the period of time indicated on Schedule II hereto), other than
the Company's sale of Shares hereunder and the Company's issuance of Common
Stock upon (i) the conversion or exchange of convertible or exchangeable
securities outstanding on the date hereof; (ii) the exercise of currently
outstanding options; and (iii) the grant and exercise of options under, or the
issuance and sale of shares pursuant to, employee stock option plans in effect
on the date hereof.
(h) During the period of three years from the
effective date of the Registration Statement, the Company will furnish to you
copies of (i) all reports or other communications (financial or other) furnished
to security holders; and (ii) reports, financial statements and proxy or
information statements furnished to or filed with the Commission or any national
securities exchange on which any class of securities of the Company is listed.
(i) The Company will apply the net proceeds it
receives from the sale of the Shares as set forth under the caption "Use of
Proceeds" in the Prospectus.
(j) The Company will use its best efforts to list for
quotation the Shares on The Nasdaq National Market.
(k) The Company, during the period when the
Prospectus is required to be delivered under the Securities Act or the Exchange
Act, will file all documents required to be filed with the Commission pursuant
to Section 13, 14 or 15 of the Exchange Act within the time periods required by
the Exchange Act and the rules and regulations thereunder.
14
(l) The Company will use its best efforts to do and
perform all things required to be done or performed under this Agreement by the
Company prior to the Closing Date or the Additional Date, as the case may be,
and to satisfy all conditions precedent to the delivery of the Firm Shares and
the Additional Shares.
5. Payment of Expenses. Whether or not the transactions
contemplated in this Agreement are consummated or this Agreement is terminated,
the Company hereby agrees to pay all costs and expenses incident to the
performance of the obligations of the Company hereunder, including the
following: (i) the fees, disbursements and expenses of the Company's counsel and
accountants in connection with the registration of the Shares under the
Securities Act and all other expenses in connection with the preparation,
printing and filing of the Registration Statement, any Preliminary Prospectus
and the Prospectus and amendments and supplements thereto and the mailing and
delivering of copies thereof to the Underwriters and dealers; (ii) the cost of
printing any Agreement among Underwriters, this Agreement, the blue sky
memoranda, closing documents (including any compilations thereof) and any other
documents in connection with the offering, purchase, sale and delivery of the
Shares; (iii) all expenses in connection with the qualification of the Shares
for offering and sale under state securities laws and Canadian federal and
provincial securities laws as provided in Section 4(e) hereof, including the
fees and disbursements of counsel for the Underwriters in connection with such
qualification and in connection with the blue sky survey; (iv) all fees and
expenses in connection with listing the Shares on the NASDAQ National Market;
(v) all travel expenses of the Company's officers and employees and any other
expense of the Company incurred in connection with attending or hosting meetings
with prospective purchasers of the Shares; (vi) any stock transfer taxes
incurred in connection with this Agreement or the Offering; and (vii) the filing
fees incident to, and the fees and disbursements of counsel for the Underwriters
in connection with, any required review by the National Association of
Securities Dealers, Inc. of the terms of the sale of the Shares. The Company
also will pay or cause to be paid: (i) the cost of preparing stock certificates
representing the Shares; (ii) the cost and charges of any transfer agent or
registrar for the Shares; and (iii) all other costs and expenses incident to the
performance of its obligations hereunder which are not otherwise specifically
provided for in this Section 5. It is understood, however, that except as
provided in this Section, and Sections 7 and 11 hereof, the Underwriters will
pay all of their own costs and expenses, including the fees of their counsel and
stock transfer taxes on resale of any of the Shares by them.
6. Conditions of Underwriters' Obligations. The obligations of
the Underwriters to purchase and pay for the Firm Shares and the Additional
Shares, as provided herein, shall be subject to the accuracy of the
representations and warranties of the Company herein contained, as of the date
hereof and as of the Closing Date (for purposes of this Section 6 "Closing Date"
shall refer to the Closing Date for the Firm Shares and any Additional Closing
Date, if different, for the Additional Shares), to the absence from any
certificates, opinions, written statements or letters furnished to you or to
Underwriters' Counsel pursuant to this Section 6 of any misstatement or
omission, to the performance by the Company of its obligations hereunder, and to
each of the following additional conditions:
(a) The Registration Statement shall have become
effective not later than 5:30 P.M., New York time, on the date of this
Agreement, or at such later time and date as shall have been consented to in
writing by you; if the Company shall have elected to rely upon
15
Rule 430A of the Regulations, the Prospectus shall have been filed with the
Commission in a timely fashion in accordance with Section 4(a) hereof; and, at
or prior to the Closing Date, no stop order suspending the effectiveness of the
Registration Statement or any post-effective amendment thereof shall have been
issued and no proceedings therefor shall have been initiated or threatened by
the Commission.
(b) At the Closing Date you shall have received the
written opinion of Xxxxxxxx Chance Xxxxxx & Xxxxx LLP, counsel for the Company,
dated the Closing Date addressed to the Underwriters in the form attached hereto
as Annex I.
(c) At the Closing Date you shall have received the
written opinion of Xxxxxxx Xxxxx W.S., Scottish counsel for the Company, dated
the Closing Date addressed to the Underwriters in the form attached hereto as
Annex II and the written opinion of Stikeman Elliott, Canadian counsel for the
Company, dated the Closing Date addressed to the Underwriters in the form
attached hereto as Annex III.
(d) All proceedings taken in connection with the sale
of the Firm Shares and the Additional Shares as herein contemplated shall be
satisfactory in form and substance to you and to Underwriters' Counsel, and the
Underwriters shall have received from Underwriters' Counsel a favorable opinion,
dated as of the Closing Date, with respect to the issuance and sale of the
Shares, the Registration Statement and the Prospectus and such other related
matters as you may reasonably require, and the Company shall have furnished to
Underwriters' Counsel such documents as they may reasonably request for the
purpose of enabling them to pass upon such matters.
(e) At the Closing Date you shall have received a
certificate of the Chief Executive Officer and Chief Financial Officer of the
Company, dated the Closing Date, to the effect that (i) the condition set forth
in subsection (a) of this Section 6 has been satisfied, (ii) as of the date
hereof and as of the Closing Date, the representations and warranties of the
Company set forth in Section 1 hereof are accurate, (iii) as of the Closing
Date, the obligations of the Company to be performed hereunder on or prior
thereto have been duly performed, (iv) subsequent to the respective dates as of
which information is given in the Registration Statement and the Prospectus, the
Company and the Subsidiaries have not sustained any material loss or
interference with their respective businesses or properties from fire, flood,
hurricane, accident or other calamity, whether or not covered by insurance, or
from any labor dispute or any legal or governmental proceeding, and (v)
subsequent to the respective dates as of which information is given in the
Registration Statement and the Prospectus, there has not been any material
adverse change or any material change, or any development involving a
prospective material change, in the business, properties, condition (financial
or otherwise) or results of operations of the Company and the Subsidiaries taken
as a whole, except in each case as described in or contemplated by the
Prospectus.
(f) At the Closing Date you shall have received a
certificate, substantially in the form set forth in Annex V, of each of the
persons listed in Schedule IV.
(g) At the time this Agreement is executed and at the
Closing Date, you shall have received a comfort letter, from Xxxxxx Xxxxxxxx,
independent public auditors for
16
the Company, dated, respectively, as of the date of this Agreement and as of the
Closing Date addressed to the Underwriters and in form and substance
satisfactory to the Underwriters and Underwriters' counsel.
(h) Prior to the time this Agreement is executed, you
shall have received from the Company a copy of a letter from Xxxxxx Xxxxxxxx to
the Company, substantially in the form of Annex VI hereto.
(i) Subsequent to the date as of which information is
given in the Prospectus, and until the Closing Date, the Commission shall
continue to accept the audit by Xxxxxx Xxxxxxxx of the audited financial
statements of the Company contained in the Registration Statement and the
Prospectus (subject to delivery by Xxxxxx Xxxxxxxx to the Company of any
representations required by the Commission, all of which representations shall
have been delivered to the Company and filed with the Commission in accordance
with the Commission's requirements).
(j) Subsequent to the execution and delivery of this
Agreement or, if earlier, the dates as of which information is given in the
Registration Statement (exclusive of any amendment thereof) and the Prospectus
(exclusive of any supplement thereto), there shall not have been any change in
or affecting, or any development involving a prospective change in or affecting,
the condition (financial or otherwise), results of operations, business or
properties of the Company and the Subsidiaries taken as a whole, including,
without limitation, the occurrence of a fire, flood, hurricane, accident,
explosion or other calamity at any of the properties owned or leased by the
Company or any of its Subsidiaries, the effect of which, in any such case
described above, is, in the judgment of the Underwriters, so material and
adverse as to make it impracticable or inadvisable to proceed with the public
offering or the delivery of the Shares on the terms and in the manner
contemplated in the Prospectus (exclusive of any supplement thereto).
(k) You shall have also received a lock-up agreement
from each person who is a director or officer of the Company and each
shareholder as shall have been heretofore designated by you and listed on
Schedule II hereto substantially in the form attached hereto as Annex IV.
(l) At the Closing Date, the Shares shall have been
approved for quotation on The Nasdaq National Market.
(m) At the Closing Date, the NASD shall not have
raised any objection with respect to the fairness and reasonableness of the
underwriting terms and arrangements.
(n) The Company shall have complied with the
provisions of Section 4(c) hereof with respect to the furnishing of prospectuses
on the next business day succeeding the date of this Agreement.
(o) The Company shall have furnished the Underwriters
and Underwriters' Counsel with such other certificates, opinions or other
documents as they may have reasonably requested.
17
(p) In the event the Underwriters exercise their
option to purchase the Additional Shares, all of the conditions in this Section
6 must be satisfied in connection with such Additional Shares on or prior to the
Additional Closing Date.
If any of the conditions specified in this Section 6 shall not
have been fulfilled when and as required by this Agreement, or if any of the
certificates, opinions, written statements or letters furnished to you or to
Underwriters' Counsel pursuant to this Section 6 shall not be satisfactory in
form and substance to you and to Underwriters' Counsel, all obligations of the
Underwriters hereunder may be cancelled by you at, or at any time prior to, the
Closing Date and the obligations of the Underwriters to purchase the Additional
Shares may be cancelled by you at, or at any time prior to, the Additional
Closing Date. Notice of such cancellation shall be given to the Company in
writing or by telephone. Any such telephone notice shall be confirmed promptly
thereafter in writing.
7. Indemnification .
(a) The Company shall indemnify and hold harmless
each Underwriter and each person, if any, who controls any Underwriter within
the meaning of Section 15 of the Securities Act or Section 20(a) of the
Exchange, against any and all losses, liabilities, claims, damages and expenses
whatsoever as incurred (including but not limited to attorneys' fees and any and
all expenses whatsoever incurred in investigating, preparing or defending
against any litigation, commenced or threatened, or any claim whatsoever, and
any and all amounts paid in settlement of any claim or litigation), joint or
several, to which they or any of them may become subject under the Securities
Act, the Exchange Act or otherwise, insofar as such losses, liabilities, claims,
damages or expenses (or actions in respect thereof) arise out of or are based
upon any untrue statement or alleged untrue statement of a material fact
contained in the registration statement for the registration of the Shares, as
originally filed or any amendment thereof, or any related preliminary prospectus
or the Prospectus, or in any supplement thereto or amendment thereof, or arise
out of or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading; provided, however, that the Company will not be liable
in any such case to the extent but only to the extent that any such loss,
liability, claim, damage or expense arises out of or is based upon any such
untrue statement or alleged untrue statement or omission or alleged omission
made therein in reliance upon and in conformity with written information
furnished to the Company by or on behalf of any Underwriter through you
expressly for use therein; provided, further, that this indemnity agreement with
respect to any Preliminary Prospectus shall not inure to the benefit of any
Underwriter from whom the person asserting any such losses, liabilities, claims,
damages or expenses purchased Shares, or any person controlling such
Underwriter, if a copy of the Prospectus was not sent or given by or on behalf
of such Underwriter to such person, if such is required by law, at or prior to
the written confirmation of the sale of such Shares to such person and if the
Prospectus would have corrected the defect giving rise to such loss, liability,
claim, damage or expense. This indemnity agreement will be in addition to any
liability which the Company may otherwise have including under this Agreement.
(b) Each Underwriter, severally and not jointly,
shall indemnify and hold harmless the Company, each of the directors of the
Company, each of the officers of the
18
Company who shall have signed the Registration Statement, and each other person,
if any, who controls the Company within the meaning of Section 15 of the
Securities Act or Section 20(a) of the Exchange Act, against any losses,
liabilities, claims, damages and expenses whatsoever as incurred (including but
not limited to attorneys' fees and any and all expenses whatsoever incurred in
investigating, preparing or defending against any litigation, commenced or
threatened, or any claim whatsoever, and any and all amounts paid in settlement
of any claim or litigation), joint or several, to which they or any of them may
become subject under the Securities Act, the Exchange Act or otherwise, insofar
as such losses, liabilities, claims, damages or expenses (or actions in respect
thereof) arise out of or are based upon any untrue statement or alleged untrue
statement of a material fact contained in the registration statement for the
registration of the Shares, as originally filed or any amendment thereof, or any
related preliminary prospectus or the Prospectus, or in any amendment thereof or
supplement thereto, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, in each case to the
extent, but only to the extent, that any such loss, liability, claim, damage or
expense arises out of or is based upon any such untrue statement or alleged
untrue statement or omission or alleged omission made therein in reliance upon
and in conformity with written information furnished to the Company by or on
behalf of any Underwriter through you expressly for use therein. The parties
agree that such information provided by or on behalf of any Underwriter consists
solely of the material referred to in the last sentence of Section 1 (b) hereof.
This indemnity will be in addition to any liability which any Underwriter may
otherwise have including under this Agreement.
(c) Promptly after receipt by an indemnified party
under subsection (a) or (b) above of notice of any claims or the commencement of
any action, such indemnified party shall, if a claim in respect thereof is to be
made against the indemnifying party under such subsection, notify each party
against whom indemnification is to be sought in writing of the claim or the
commencement thereof (but the failure so to notify an indemnifying party shall
not relieve it from any liability which it may have under this Section 7 to the
extent that the indemnifying party is not prejudiced as a result thereof). In
case any such claim or action is brought against any indemnified party, and it
notifies an indemnifying party of the commencement thereof, the indemnifying
party will be entitled to participate therein, and to the extent it may elect by
written notice delivered to the indemnified party promptly after receiving the
aforesaid notice from such indemnified party, to assume the defense thereof with
counsel satisfactory to such indemnified party. Notwithstanding the foregoing,
the indemnified party or parties shall have the right to employ its or their own
counsel in any such case, but the fees and expenses of such counsel shall be at
the expense of such indemnified party or parties unless (i) the employment of
such counsel shall have been authorized in writing by one of the indemnifying
parties in connection with the defense of such action, (ii) the indemnifying
parties shall not have employed counsel to have charge of the defense of such
action within a reasonable time after notice of commencement of the action or
(iii) such indemnified party or parties shall have reasonably concluded that
there may be defenses available to it or them which are different from or
additional to those available to one or all of the indemnifying parties (in
which case the indemnifying parties shall not have the right to direct the
defense of such action on behalf of the indemnified party or parties), in any of
which events such fees and expenses shall be borne by the indemnifying parties.
No indemnifying party shall, without the prior written consent of the
indemnified party, effect any settlement or compromise of, or consent to the
entry of judgment
19
with respect to, any pending or threatened action in respect of which the
indemnified party is or reasonably could have been a party and indemnity or
contribution may be or could have been sought hereunder by the indemnified
party, unless such settlement, compromise or judgment (i) includes and
unconditional release of the indemnified party from all liability on claims that
are or reasonably could have been the subject matter of such action and (ii)
does not include a statement as to or an admission of fault, culpability or a
failure to act, by or on behalf of the indemnified party.
8. Contribution. In order to provide for contribution in
circumstances in which the indemnification provided for in Section 7 hereof is
for any reason held to be unavailable from any indemnifying party or is
insufficient to hold harmless a party indemnified thereunder, the Company and
the Underwriters shall contribute to the aggregate losses, claims, damages,
liabilities and expenses of the nature contemplated by such indemnification
provision (including any investigation, legal and other expenses incurred in
connection with, and any amount paid in settlement of, any action, suit or
proceeding or any claims asserted, but after deducting in the case of losses,
claims, damages, liabilities and expenses suffered by the Company any
contribution received by the Company from persons, other than the Underwriters,
who may also be liable for contribution, including persons who control the
Company within the meaning of Section 15 of the Securities Act or Section 20(a)
of the Exchange Act, officers of the Company who signed the Registration
Statement and directors of the Company) as incurred to which the Company and one
or more of the Underwriters may be subject, in such proportions as is
appropriate to reflect the relative benefits received by the Company and the
Underwriters from the offering of the Shares or, if such allocation is not
permitted by applicable law, in such proportion as is appropriate to reflect not
only the relative benefits referred to above but also the relative fault of the
Company and the Underwriters in connection with the statements or omissions
which resulted in such losses, claims, damages, liabilities or expenses, as well
as any other relevant equitable considerations. The relative benefits received
by the Company and the Underwriters shall be deemed to be in the same proportion
as (x) the total proceeds from the offering (net of underwriting discounts and
commissions but before deducting expenses) received by the Company and (y) the
underwriting discounts or commissions received by the Underwriters,
respectively, in each case as set forth in the table on the cover page of the
Prospectus. The relative fault of the Company and of the Underwriters 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 or the
Underwriters and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission. The Company
and the Underwriters agree that it would not be just and equitable if
contribution pursuant to this Section 8 were 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 account of the equitable
considerations referred to above. Notwithstanding the provisions of this Section
8 (i), no Underwriter shall be required to contribute any amount in excess of
the amount by which the total price at which the shares are underwritten by it
and distributed to the public were offered to the public exceeds the amount of
any damages which such Underwriter has otherwise been required to pay by reason
of such untrue or alleged untrue statement or omission or alleged omission and
(ii) no person guilty of fraudulent misrepresentation (within in the meaning of
Section 11(f) of the Act) shall be entitled to contribution from any person who
was not guilty of such fraudulent misrepresentation. For purposes of this
Section 8, each person, if any, who
20
controls an Underwriter within the meaning of Section 15 of the Securities Act
or Section 20(a) of the Exchange Act shall have the same rights to contribution
as such Underwriter, and each person, if any, who controls the Company within
the meaning of Section 15 of the Act or Section 20(a) of the Exchange Act, each
officer of the Company who shall have signed the Registration Statement and each
director of the Company shall have the same rights to contribution as the
Company, subject in each case to clauses (i) and (ii) of this Section 8. Any
party entitled to contribution will, promptly after receipt of notice of
commencement of any action, suit or proceeding against such party in respect of
which a claim for contribution may be made against another party or parties,
notify each party or parties from whom contribution may be sought, but the
omission to so notify such party or parties shall not relieve the party or
parties from whom contribution may be sought from any obligation it or they may
have under this Section 8 or otherwise. The obligations of the Underwriters to
contribute pursuant to this Section 8 are several in proportion to the
respective number of Shares purchased by each of the Underwriters hereunder and
not joint.
9. Default by an Underwriter.
(a) If any Underwriter or Underwriters shall default
in its or their obligation to purchase Firm Shares or Additional Shares
hereunder, and if the Firm Shares or Additional Shares with respect to which
such default relates do not (after giving effect to arrangements, if any, made
by you pursuant to subsection (b) below) exceed in the aggregate 10% of the
number of Firm Shares or Additional Shares, the Firm Shares or Additional Shares
to which the default relates shall be purchased by the non-defaulting
Underwriters in proportion to the respective proportions which the numbers of
Firm Shares set forth opposite their respective names in Schedule I hereto bear
to the aggregate number of Firm Shares set forth opposite the names of the
non-defaulting Underwriters.
(b) In the event that such default relates to more
than 10% of the Firm Shares or Additional Shares, as the case may be, you may in
your discretion arrange for yourself or for another party or parties (including
any non-defaulting Underwriter or Underwriters who so agree) to purchase such
Firm Shares or Additional Shares, as the case may be, to which such default
relates on the terms contained herein. In the event that within 5 calendar days
after such a default you do not arrange for the purchase of the Firm Shares or
Additional Shares, as the case may be, to which such default relates as provided
in this Section 9, this Agreement or, in the case of a default with respect to
the Additional Shares, the obligations of the Underwriters to purchase and of
the Company to sell the Additional Shares shall thereupon terminate, without
liability on the part of the Company with respect thereto (except in each case
as provided in Sections 5, 7(a) and 8 hereof) or the Underwriters, but nothing
in this Agreement shall relieve a defaulting Underwriter or Underwriters of its
or their liability, if any, to the other Underwriters and the Company for
damages occasioned by its or their default hereunder.
(c) In the event that the Firm Shares or Additional
Shares to which the default relates are to be purchased by the non-defaulting
Underwriters, or are to be purchased by another party or parties as aforesaid,
you or the Company shall have the right to postpone the Closing Date or
Additional Closing Date, as the case may be, for a period, not exceeding five
business days, in order to effect whatever changes may thereby be made necessary
in the Registration Statement or the Prospectus or in any other documents and
arrangements, and the
21
Company agrees to file promptly any amendment or supplement to the Registration
Statement or the Prospectus which, in the opinion of Underwriters' Counsel, may
thereby be made necessary or advisable. The term "Underwriter" as used in this
Agreement shall include any party substituted under this Section 9 with like
effect as if it had originally been a party to this Agreement with respect to
such Firm Shares and Additional Shares.
10. Survival of Representations and Agreements. All representations and
warranties, covenants and agreements of the Underwriters and the Company
contained in this Agreement, including the agreements contained in Section 5,
the indemnity agreements contained in Section 7 and the contribution agreements
contained in Section 8, shall remain operative and in full force and effect
regardless of any investigation made by or on behalf of any Underwriter or any
controlling person thereof or by or on behalf of the Company, any of its
officers and directors or any controlling person thereof, and shall survive
delivery of and payment for the Shares to and by the Underwriters. The
representations contained in Section 1 and the agreements contained in Sections
5, 7, 8 and 11(d) hereof shall survive the termination of this Agreement,
including termination pursuant to Section 9 or 11 hereof.
11. Effective Date of Agreement; Termination.
(a) This Agreement shall become effective upon the execution
of this Agreement.
(b) You shall have the right to terminate this Agreement at
any time prior to the Closing Date or the obligations of the Underwriters to
purchase the Additional Shares at any time prior to the Additional Closing Date,
as the case may be, if (A) any domestic or international event or act or
occurrence has materially disrupted, or in your opinion will in the immediate
future materially disrupt, the market for the Company's securities or securities
in general; or (B) if trading on the New York Stock Exchange or on The NASDAQ
Stock Market shall have been suspended, or minimum or maximum prices for trading
shall have been fixed, or maximum ranges for prices for securities shall have
been required, on the New York Stock Exchange or on The NASDAQ Stock Market by
the New York Stock Exchange or by The NASDAQ Stock Market or by order of the
Commission or any other governmental authority having jurisdiction; or (C) if a
banking moratorium has been declared by any state or federal authority or if any
material disruption in commercial banking or securities settlement or clearance
services shall have occurred; or (D) (i) if there shall have occurred any
outbreak or escalation of hostilities or acts of terrorism involving the United
States or there is a declaration of a national emergency or war by the United
States or (ii) if there shall have been any other calamity or crisis or any
change in political, financial or economic conditions if the effect of any such
event in (i) or (ii) in your judgment makes it impracticable or inadvisable to
proceed with the offering, sale and delivery of the Firm Shares or the
Additional Shares, as the case may be, on the terms and in the manner
contemplated by the Prospectus.
(c) Any notice of termination pursuant to this Section 11
shall be in writing.
(d) If this Agreement shall be terminated pursuant to any of
the provisions hereof (otherwise than pursuant to (i) notification by you as
provided in Section 11(a)
22
hereof or (ii) Section 9(b) hereof), or if the sale of the Shares provided for
herein is not consummated because any condition to the obligations of the
Underwriters set forth herein is not satisfied or because of any refusal,
inability or failure on the part of the Company to perform any agreement herein
or comply with any provision hereof, the Company will, subject to demand by you,
reimburse the Underwriters for all out-of-pocket expenses (including the fees
and expenses of their counsel) incurred by the Underwriters in connection
herewith.
12. Notices. All communications hereunder, except as may be otherwise
specifically provided herein, shall be in writing, and:
(a) if sent to any Underwriter, shall be mailed, delivered, or
faxed and confirmed in writing, to such Underwriter c/o Bear, Xxxxxxx & Co.
Inc., 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Equity Capital
Markets, with a copy to Underwriter's Counsel at Coudert Brothers LLP, 0000
Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000-0000, Attention: Xxxxxxx X.
Xxxxx;
(b) if sent to the Company, shall be mailed, delivered, or
faxed and confirmed in writing to the Company at 00000 Xxxxxx Xxxxxxx, Xxxxx
000, Xxxx, Xxxxx Xxxxxxxx 00000, Attention: Xx. Xxxxxx X. Xxxxx, with a copy to
its counsel at Xxxxxxxx Chance Xxxxxx & Xxxxx LLP, 000 Xxxx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000, Attention: Xxxx Xxxxx;
provided, however, that any notice to an Underwriter pursuant to Section 7 shall
be delivered or sent by mail or facsimile transmission to such Underwriter at
its address set forth in its acceptance facsimile to you, which address will be
supplied to any other party hereto by you upon request. Any such notices or
other communications shall take effect at the time of receipt thereof.
13. Parties. This Agreement shall insure solely to the benefit of, and
shall be binding upon, the Underwriters, and the Company and the controlling
persons, directors, officers, employees and agents referred to in Sections 8 and
9 hereof, and their respective successors and assigns, and no other person shall
have or be construed to have any legal or equitable right, remedy or claim under
or in respect of or by virtue of this Agreement or any provision herein
contained. This Agreement and all conditions and provisions hereof are intended
to be for the sole and exclusive benefit of the parties hereto and their
respective successors, and said controlling persons, and such persons' officers
and directors and their heirs and legal representatives, and it is not for the
benefit of any other person, firm or corporation. The term "successors and
assigns" shall not include a purchaser, in its capacity as such, of Shares from
any of the Underwriters.
14. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York, but without regard to
principles of conflicts of law.
15. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same instrument.
23
16. Headings. The headings herein are inserted for convenience of
reference only and are not intended to be part of, or to affect the meaning or
interpretation of, this Agreement.
17. Time is of the Essence. Time shall be of the essence of this
Agreement. As used herein, the term "business day" shall mean any day when the
Commission's office in Washington, D.C. is open for business.
[signature page follows]
24
If the foregoing correctly sets forth the understanding between you
and the Company, please so indicate in the space provided below for that
purpose, whereupon this letter shall constitute a binding agreement among us. It
is understood that your acceptance of this letter on behalf of each of the
Underwriters is pursuant to the authority set forth in a form of Agreement among
Underwriters, the form of which shall be submitted to the Company for
examination, upon request, but without warranty on your part as to the authority
of the signers thereof.
Very truly yours,
INVERESK RESEARCH GROUP, INC.
By:
---------------------------------------
Name:
Title:
Accepted as of the date first above written
BEAR, XXXXXXX & CO. INC.
UBS WARBURG LLC
XXXXXXX XXXXX & COMPANY, L.L.C.
XX XXXXX SECURITIES CORPORATION
----------------------------
By: BEAR, XXXXXXX & CO. INC.
Name:
Title:
On behalf of themselves and the other Underwriters named in Schedule I hereto.
