EXHIBIT 99.03
EXCHANGE AGENT AGREEMENT
March __, 2004
Xxxxx Fargo Bank, National Association, as successor by merger to
Xxxxx Fargo Bank Minnesota, National Association
Attn: Corporate Trust Services
000 Xxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxx, XX 00000
Ladies and Gentlemen:
Quintiles Transnational Corp., a North Carolina corporation (the
"Company"), proposes to make an offer (the "Exchange Offer") to exchange up to
$450,000,000 principal amount of its 10% Senior Subordinated Notes due 2013 (the
"Exchange Notes") that have been registered under the Securities Act of 1933, as
amended (the "Securities Act") for a like principal amount of its outstanding
10% Senior Subordinated Notes due 2013 (the "Private Notes"). The terms and
conditions of the Exchange Offer as currently contemplated are set forth in a
prospectus, dated _________, 2004 (the "Prospectus"), included in the Company's
Registration Statement on Form S-4 (the "Registration Statement") filed with the
Securities and Exchange Commission. The Private Notes and the Exchange Notes are
collectively referred to herein as the "Securities."
The Company hereby appoints Xxxxx Fargo Bank, National Association as
the exchange agent (the "Exchange Agent") in connection with the Exchange Offer.
References hereinafter to "you" refer to Xxxxx Fargo Bank, National Association,
in its capacity as Exchange Agent.
The Exchange Offer is expected to be commenced by the Company on or
about ____, 2004. The Letter of Transmittal, the Notice of Guaranteed Delivery,
the Letter to Registered Holders and the Letter to Clients (collectively, the
"Tender Documents") accompanying the Prospectus (or in the case of book-entry
securities, the Automated Tender Offer Program ("ATOP") of the Book-Entry
Transfer Facility (as defined below)) are to be used by the holders of the
Private Notes to accept the Exchange Offer and contain instructions with respect
to the delivery of certificates for Private Notes tendered in connection
therewith.
The Exchange Offer will expire at 5:00 p.m., New York City time, on
____________, 2004 or on such subsequent date or time to which the Company may
extend the Exchange Offer (the "Expiration Date"). Subject to the terms and
conditions set forth in the Prospectus, the Company expressly reserves the right
to extend the Exchange Offer from time to time and may extend the Exchange Offer
by giving oral or written notice to you.
The Company expressly reserves the right to amend or terminate the
Exchange Offer, and not to accept for exchange any Private Notes not therefore
accepted for exchange, upon the occurrence of any of the conditions of the
Exchange Offer specified in the Prospectus under the caption "The Exchange
Offer--Conditions." The Company will give oral notice (promptly confirmed in
writing) of any amendment, termination or nonacceptance to you as promptly as
practicable.
In carrying out your duties as Exchange Agent, you are to act in
accordance with the following:
1. You shall perform such duties and only such duties as are
specifically set forth in the section of the Prospectus entitled "The Exchange
Offer" or as specifically set forth herein; provided, however, that in no way
will your general duty to act in good faith be discharged by the foregoing.
2. You shall establish book-entry accounts in accordance with SEC
regulations with respect to each of the Private Notes at The Depository Trust
Company (the "Book Entry Transfer Facility") for purposes of the Exchange Offer
within two business days after the date of the Prospectus, and any financial
institution that is a participant in the Book Entry Transfer Facility's systems
may, until the Expiration Date, make book-entry delivery of the Private Notes by
causing the Book Transfer Facility to transfer such Private Notes into the
appropriate account in accordance with the Book Entry Transfer Facility's
procedure for such transfer.
3. You shall examine each of the Letters of Transmittal and
certificates for the Private Notes (or confirmation of book-entry transfer into
the accounts at the Book-Entry Transfer Facility) and any other documents
delivered or mailed to you by or for holders of the Private Notes to ascertain
whether: (1) the Letters of Transmittal and any such other documents are duly
executed and properly completed in accordance with the instructions set forth
therein; and (2) the Private Notes have otherwise been properly tendered. In
each case where the Letter of Transmittal or any other document has been
improperly completed or executed or any of the certificates for Private Notes
are not in proper form for transfer or some other irregularity in connection
with the acceptance of the applicable Exchange Offer exists, you shall make
commercially reasonable efforts to inform the presenters of the need for
fulfillment of all requirements and to take any other action as may be
commercially reasonable to cause such irregularity to be corrected.
4. With the approval of the Chief Executive Officer, Chief
Financial Officer or General Counsel (the "Executive Officers") of the Company
(such approval, if given orally, to be promptly confirmed in writing), or any
other party designated in writing by such an officer, you may waive any
irregularities in connection with any tender of Private Notes pursuant to the
Exchange Offer.
5. Tenders of Private Notes may be made only as set forth in the
Letter of Transmittal and in the section of the Prospectus captioned "The
Exchange Offer -- Procedures for Tendering" and "The Exchange Offer--Guaranteed
Delivery Procedures," and Private Notes shall be considered properly tendered to
you only when tendered in accordance with the procedures set forth therein.
Notwithstanding the provisions of this Section 5, Private Notes that an
Executive Officer of the Company shall approve as having been properly tendered
shall be considered to be properly tendered (such approval, if given orally,
shall be promptly confirmed in writing).
6. You shall advise the Company with respect to any Private Notes
received subsequent to the Expiration Date and accept its instructions with
respect to disposition of such Private Notes.
7. You shall accept tenders:
a. in cases where the Private Notes are registered in
two or more names only if signed by all named holders;
b. in cases where the signing person (as indicated in
the Letter of Transmittal) is acting in a fiduciary or a representative
capacity only if proper evidence of his or her authority so to act is
submitted; and
c. from persons other than the registered holder of
Private Notes, only if customary transfer requirements, including
payment of any applicable transfer taxes, are fulfilled.
You shall accept partial tenders of Private Notes where so indicated
and as permitted in the Letter of Transmittal and deliver certificates for
Private Notes to the registrar for separation and return any untendered Private
Notes to the holder (or such other person as may be designated in the Letter of
Transmittal) as promptly as practicable after expiration or termination of the
Exchange Offer.
8. Upon satisfaction or waiver of all of the conditions to the
Exchange Offer, the Company shall notify you in writing of its acceptance,
promptly after the Expiration Date, of all Private Notes properly tendered and
you, on behalf of the Company, shall exchange such Private Notes for Exchange
Notes, and cause such Private Notes to be cancelled. Such private notes are to
be retired from the Company's books and will no longer be outstanding. Delivery
of Exchange Notes shall be made on behalf of the Company by you at the rate of
$1,000 principal amount of Exchange Notes for each $1,000 principal amount of
Private Notes tendered promptly after receiving written notice of acceptance of
said Private Notes by the Company; provided, however, that in all cases, Private
Notes tendered pursuant to the Exchange Offer will be exchanged only after
timely receipt by you of certificates for such Private Notes (or confirmation of
book entry transfer into the accounts at the Book Entry Transfer Facility), and
a properly completed and duly executed Letter of Transmittal (or manually signed
facsimile thereof) with any required signature guarantees and any other required
documents or an agent's message (as such term is defined in the Letter of
Transmittal) in the case of book-entry transfer. You shall issue Exchange Notes
only in denominations of $1,000 or any integral multiple thereof.
9. Tenders pursuant to the Exchange Offer are irrevocable, except
that, subject to the terms and upon the conditions set forth in the Prospectus
and the Letter of Transmittal, Private Notes tendered pursuant to the Exchange
Offer may be withdrawn at any time prior to the Expiration Date.
10. The Company is not required to exchange any Private Notes
tendered if any of the conditions set forth in the Exchange Offer is not met.
Written notice of any decision by the Company not to exchange any Private Notes
tendered shall be given by the Company to you.
11. If, pursuant to the Exchange Offer, the Company does not
accept for exchange all or part of the Private Notes tendered because of an
invalid tender, the occurrence of certain other events set forth in the
Prospectus under the caption "The Exchange Offer--Conditions" or otherwise, you
shall as soon as practicable after the expiration or termination of the Exchange
Offer return those certificates for unaccepted Private Notes (or effect an
appropriate book-entry transfer), together with any related required documents
and the Letters of Transmittal relating thereto that are in your possession, to
the person who deposited them.
12. You shall forward all certificates for reissued Private Notes,
unaccepted Private Notes or for Exchange Notes by (i) first-class certified
mail, return receipt requested, under a blanket surety bond or insurance
protecting you and the Company from losses and liabilities arising out of the
non-receipt or non-delivery of such certificates or (ii) registered mail insured
separately for the value of such securities.
13. You are not authorized to pay or offer to pay any concessions,
commissions or solicitation fees to any broker, dealer, bank or other persons or
to engage or utilize any person to solicit tenders.
14. As Exchange Agent hereunder you:
a. are not liable for any action or omission to act in
connection with this Exchange Agent Agreement unless the same
constitutes your gross negligence, willful misconduct or bad faith;
b. have no duties or obligations other than those
specifically set forth herein or incorporated herein from the
Prospectus or as may be subsequently agreed to in writing between you
and the Company;
c. are regarded as making no representations as to the
validity, sufficiency, value or genuineness of any of the certificates
or the Private Notes represented thereby deposited with you pursuant to
the Exchange Offer, and will not be required to and will make no
representation as to the validity, value or genuineness of the Exchange
Offer;
d. are not obligated to take any legal action hereunder
which might in your judgment involve any expense or liability unless
you have been furnished with a commercially reasonable indemnity;
e. may rely on and are protected in acting in reliance
upon any certificate, instrument, opinion, notice, letter, telegram or
other document or securities delivered to you and reasonably believed
by you to be genuine and to have been signed or presented by the proper
person or persons;
f. may reasonably act upon any tender, statement,
request, document, agreement, certificate or other instrument
whatsoever not only as to its due execution and validity and
effectiveness of its provisions, but also as to the truth and accuracy
of any information contained therein, which you in good faith
reasonably believe to be genuine and to have been signed or presented
by the proper person or persons;
g. may rely on and are protected in acting upon written
instructions from any Executive Officer of the Company;
h. may consult with counsel of your selection with
respect to any questions relating to your duties and responsibilities
and the advice or opinion of such counsel shall be full and complete
authorization and protection in respect of any action taken, suffered
or omitted to be taken by you hereunder in good faith and in accordance
with the advice or opinion of such counsel; and
i. shall not advise any person tendering Private Notes
pursuant to the Exchange Offer as to the wisdom of making such tender
or as to the market value or decline or appreciation in market values
of any Private Notes.
15. You shall take such action as may from time to time be
requested by the Company (and such other action as you may deem appropriate) to
furnish copies of the Prospectus, Letter of Transmittal and Notice of Guaranteed
Delivery (as defined in the Prospectus) or such other forms as may be approved
from time to time by the Company, to all persons requesting such documents and
to accept and comply with oral requests for information relating to the Exchange
Offer, provided that such information shall relate only to the procedures for
accepting (or withdrawing from) the Exchange Offer. The Company will furnish you
with copies of such documents on your request. All other requests for
information relating to the Exchange Offer shall be directed to the Company,
Attn: Xxxx X. Xxxxxxx, General Counsel.
16. You shall advise by facsimile transmission to the General
Counsel of the Company ((000) 000-0000), Xxxxxx Xxxxx, Esq. of Smith, Anderson,
Blount, Dorsett, Xxxxxxxx & Xxxxxxxx, LLP ((000) 000-0000) and such other person
or persons as the Company may request, daily (and more frequently during the
week immediately preceding the Expiration Date if requested) up to and including
the Expiration Date, as to the number of Private Notes which have been tendered
pursuant to the Exchange Offer and the items received by you pursuant to this
Exchange Agent Agreement, separately reporting and giving cumulative totals as
to each item properly received and each item improperly received. In addition,
you shall also inform, and cooperate in making available to, the Company or any
such other person or persons upon oral request made from time to time prior to
the Expiration Date of such other information as they may reasonably request.
Such cooperation will include, without limitation, the granting by you to the
Company and such person as the Company may request of access to those persons on
your staff who are responsible for receiving tenders, in order to ensure that
immediately prior to the Expiration Date the Company shall have received
information in sufficient detail to enable it to decide whether to extend the
Exchange Offer. You shall prepare a final list of all persons who have tendered,
the aggregate principal amount of Private Notes tendered, the aggregate
principal amount of Private Notes accepted by the Company, and deliver said list
to the Company promptly following the Expiration Date.
17. Letters of Transmittal and Notices of Guaranteed Delivery
shall be stamped by you as to the date and, after the expiration of the Exchange
Offer, the time, of receipt thereof and shall be preserved by you for a period
of time at least equal to the period of time you preserve other records
pertaining to the transfer of securities. You shall dispose of unused Letters of
Transmittal and other surplus materials by destroying them.
18. For services rendered as Exchange Agent hereunder, you shall
be entitled to such compensation as set forth on Schedule I attached hereto. The
provisions of this section shall survive the termination of this Exchange Agent
Agreement.
19. You hereby acknowledge receipt of the Prospectus and the
Letter of Transmittal. Any inconsistency between this Exchange Agent Agreement,
on the one hand, and the Prospectus and the Letters of Transmittal (as they may
be amended from time to time), on the other hand, shall be resolved in favor of
the Letter of Transmittal or Prospectus, except with respect to your duties,
liabilities and indemnification as Exchange Agent, which shall be controlled by
this Exchange Agent Agreement.
20. The Company covenants and agrees to fully indemnify and hold
you harmless against any and all loss, liability, reasonable cost or expense,
including reasonable attorneys' fees and expenses, incurred without gross
negligence or willful misconduct or bad faith on your part, arising out of or in
connection with any act, omission, delay or refusal made by you in reliance upon
any signature, endorsement, assignment, certificate, order, request, notice,
instruction or other instrument or document reasonably believed by you to be
valid, genuine and sufficient and in accepting any tender or effecting any
transfer of Private Notes reasonably believed by you in good faith to be
authorized, and in delaying or refusing in good faith to accept any tenders or
effect any transfer of Private Notes. The Company shall be entitled to
participate at its own expense in the defense of any such claim or other action
and, if the Company so elects, the Company shall assume the defense of any suit
brought to enforce any such claim. In the event that the Company shall assume
the defense of any such suit, the Company shall not be liable for the fees and
expenses of any additional counsel thereafter retained by you, so long as the
Company retains counsel reasonably satisfactory to you to defend such suit, and
so long as there is no conflict of interest that exists between you and the
Company. The provisions of this section shall survive the termination of this
Exchange Agent Agreement.
Without the prior written consent of the Company (which consent shall
not be unreasonably withheld), you will not settle, compromise or consent to the
entry of any judgment in any pending or threatened claim, action or proceeding
in respect of which indemnification could be sought in accordance with the
indemnification provisions set forth herein (whether or not you, the Company or
any of its directors, officers or controlling persons is an actual or potential
party to such claim or proceeding), unless such settlement includes an
unconditional release of the Company and its directors, officers and controlling
persons from all liability arising out of such claim, action or proceeding.
21. You shall arrange to comply with all requirements under the
tax laws of the United States, including those relating to missing Tax
Identification Numbers, and shall file any appropriate reports with the Internal
Revenue Service.
22. You shall deliver or cause to be delivered, in a timely manner
to each governmental authority to which any transfer taxes are payable in
respect of the exchange of Private Notes, the Company's check in the amount of
all transfer taxes so payable; provided, however, that you shall reimburse the
Company for amounts refunded to you in respect of your payment of any such
transfer taxes, at such time as such refund is received by you.
23. This Exchange Agent Agreement and your appointment as Exchange
Agent hereunder shall be construed and enforced in accordance with the laws of
the State of New York, and without regard to conflict of law principles, and
shall inure to the benefit of, and the obligations crested hereby shall be
binding upon, the successors and assigns of each of the parties hereto.
24. This Exchange Agent Agreement may be executed in two or more
counterparts, each of which shall be deemed to be an original and all of which
together shall constitute one and the same agreement.
25. In case any provision of this Exchange Agent Agreement is
invalid, illegal or unenforceable due validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
26. This Exchange Agent Agreement is not deemed or construed to be
modified, amended, rescinded, cancelled or waived, in whole or in part, except
by a written instrument signed by a duly authorized representative of the party
to be charged. This Exchange Agent Agreement may not be modified orally.
27. Unless otherwise provided herein all notices, requests and
other communications to any party hereunder shall be in writing (including,
facsimile or similar writing) and shall be given to such party, addressed to it
at its address or telecopy number set forth below;
If to the Company;
Quintiles Transnational Corp.
0000 Xxxxxxxxxx Xxxxx
Xxxxxxxxxx Xxxxxxxx, Xxxxx 000
Xxxxxx, XX 00000
Facsimile: 000-000-0000
Attention: Xxxx X. Xxxxxxx
with copy to:
Smith, Anderson, Blount, Dorsett, Xxxxxxxx & Xxxxxxxx, LLP
000 Xxxxxxxxxxxx Xxxxxx Xxxx
0000 Xxxxxxxx Xxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Fax: 000-000-0000
Attn: Xxxxxx X. Xxxxx, Esq.
If to the Exchange Agent:
Xxxxx Fargo Bank, National Association
000 Xxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxx, XX 00000
Facsimile: (000) 000-0000
Attention: Xxxxxx X. X'Xxxxxxx
Corporate Trust Services
With a copy to:
Xxxxx Fargo Bank, National Association
Corporate Trust
Sixth and Marquette
MAC X0000-000
Xxxxxxxxxxx, XX 00000
Attn: Xxx Xxxxx
28. Unless terminated earlier by the parties hereto, this Exchange
Agent Agreement shall terminate 90 days following the Expiration date.
Notwithstanding the foregoing Sections 18 and 20 shall survive the termination
of this Exchange Agent Agreement. Upon any termination of this Exchange Agent
Agreement, you shall promptly deliver to the Company any certificates for
Securities, funds or property then held by you as Exchange Agent under this
Exchange Agent Agreement.
[Remainder Of This Page Is Intentionally Left Blank]
Exhibit 99.03
IN WITNESS WHEREOF, each of the parties has caused this Exchange Agent
Agreement to be executed on its behalf by its officers thereunto duly
authorized, all as of the date first above written.
QUINTILES TRANSNATIONAL CORP.:
By:
--------------------------------
Name: Xxxx X. Xxxxxxx
Title: Executive Vice President
XXXXX FARGO BANK, NATIONAL
ASSOCIATION, AS EXCHANGE AGENT:
By:
--------------------------------
Name: Xxxxxx X. X'Xxxxxxx
Title: Assistant Vice President
SCHEDULE I
SERVICE FEE
------- -------
(PER ISSUE)
Exchange Agent............................... $3,000.00
Total.............................. $
I-1
