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EXHIBIT 99.01
EXECUTION COPY
REGISTRATION RIGHTS AGREEMENT
by and among
QUINTILES TRANSNATIONAL CORP.
and
THE SHAREHOLDERS LISTED IN ANNEX A HERETO
________________________________________
Dated as of November 29, 1996
________________________________________
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TABLE OF CONTENTS
PAGE
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Section 1. Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Section 2. Registration Rights . . . . . . . . . . . . . . . . . . . . . . . . . . 5
2.1 Initial Secondary Offering . . . . . . . . . . . . . . . . . . 5
2.2 Shelf Registration . . . . . . . . . . . . . . . . . . . . . . 6
2.3 Demand Rights . . . . . . . . . . . . . . . . . . . . . . . . 8
2.4 "Piggy-Back" Rights . . . . . . . . . . . . . . . . . . . . . 10
2.5 Allocation of Securities Included in a Public Offering . . . . 11
2.6 Requirements with Respect to Registration . . . . . . . . . . 12
Section 3. Hold-Back Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Section 4. Registration Expenses . . . . . . . . . . . . . . . . . . . . . . . . . 16
Section 5. Representations, Warranties and Agreements . . . . . . . . . . . . . . 17
(a) Company Representations, Warranties and Agreements . . . . . . 17
(b) Holder Representations, Warranties and Agreements . . . . . . 18
Section 6. Survival of Representations and Agreements . . . . . . . . . . . . . . 19
Section 7. Indemnification . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
(a) Indemnification by Quintiles . . . . . . . . . . . . . . . . . 19
(b) Indemnification by Holder of Registrable Securities . . . . . 20
(c) Conduct of Indemnification Proceedings . . . . . . . . . . . . 20
(d) Contribution . . . . . . . . . . . . . . . . . . . . . . . . . 22
(e) Remedies Cumulative . . . . . . . . . . . . . . . . . . . . . 23
(f) Underwriting Agreement Controls . . . . . . . . . . . . . . . 23
Section 8. Underwritten Registration . . . . . . . . . . . . . . . . . . . . . . . 23
Section 9. Unregistered Offerings . . . . . . . . . . . . . . . . . . . . . . . . 23
Section 10. Priority of Holders . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Section 11. Miscellaneous . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
(a) Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
(b) Amendments and Waivers . . . . . . . . . . . . . . . . . . . . 24
(c) Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
(d) Interpretation . . . . . . . . . . . . . . . . . . . . . . . . 25
(e) Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . 26
(f) Entire Agreement; No Third Party Beneficiaries . . . . . . . . 26
(g) Governing Law . . . . . . . . . . . . . . . . . . . . . . . . 26
(h) Severability . . . . . . . . . . . . . . . . . . . . . . . . . 26
(i) Assignment . . . . . . . . . . . . . . . . . . . . . . . . . . 26
(j) Attorney's Fees . . . . . . . . . . . . . . . . . . . . . . . 26
(k) Use of Terms . . . . . . . . . . . . . . . . . . . . . . . . . 26
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REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (this "Agreement") is dated
as of November 29, 1996, and is being entered by and among QUINTILES
TRANSNATIONAL CORP., a North Carolina corporation ("Quintiles"), and the
persons listed in Annex A hereto, each of which are sometimes referred to
herein individually as a "Holder" and collectively as the "Holders."
RECITALS
WHEREAS, the Boards of Directors of Quintiles and INNOVEX
LIMITED, a company organized under the laws of England and Wales with limited
liability and having the registered number 3127220 ("Innovex"), have determined
that it is in the best interests of their respective companies and shareholders
to enter into the Share Exchange Agreement (the "Share Exchange Agreement")
dated as of October 4, 1996, among Quintiles, Innovex and the Holders; and
WHEREAS, Quintiles, Innovex and the shareholders of Innovex
have entered into the Share Exchange Agreement pursuant to which the
shareholders of Innovex will exchange their Ordinary Shares, nominal value 0.1p
per share, and their Preferred Ordinary Shares, nominal value 0.1p per share,
for shares of Common Stock, par value $0.01 per share, of Quintiles (the
"Exchange"); and
WHEREAS, the parties wish to make certain covenants and
agreements concerning, among other things, the registration of the shares of
Common Stock of Quintiles under the Securities Act of 1933, as amended; and
NOW, THEREFORE, in consideration of the premises and of the
mutual covenants, representations, warranties and agreements contained herein,
the parties agree as follows:
SECTION 1. DEFINITIONS.
As used in this Agreement, the following terms shall have the
following meanings:
"Affiliate" shall mean, with respect to any Person, any other
Person that directly, or indirectly through one or more intermediaries,
controls, or is controlled by, or is under common control with such Person.
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"Blackout Period" shall have the meaning set forth in Section
2.3(b).
"BRI" shall mean BRI International Inc.
"Closing" shall mean the closing of the Exchange under the
Share Exchange Agreement.
"Commission" shall mean the United States Securities and
Exchange Commission or any other United States federal agency at the time
administering the Securities Act or the Exchange Act.
"Common Stock" shall mean the Common Stock, par value $0.01
per share, of Quintiles.
"Company" shall have the meaning set forth in the
introductory paragraph to this Agreement.
"Demand Period" shall have the meaning set forth in Section
2.5(a).
"Demand Request" shall have the meaning set forth in Section
2.3(a).
"Demanding Holder" shall have the meaning set forth in Section
2.3(a).
"Effectiveness Period" shall have the meaning set forth in
Section 2.2(a).
"Exchange" shall have the meaning set forth in the second
recital of this Agreement.
"Exchange Act" shall mean the United States Securities
Exchange Act of 1934, as amended, or any United States federal statute then in
effect that has replaced such statute, and a reference to a particular section
thereof shall be deemed to include a reference to the comparable section, if
any, of any such replacement United States federal statute.
"Existing Holders" shall mean certain persons who (i) were
holders of Common Stock prior to the date of this Agreement or (ii) received or
will receive Common Stock in connection with the acquisition by Quintiles of
BRI.
"Holder" or "Holders" shall have the meaning set forth in the
introductory paragraph to this Agreement and shall also include any assignee or
transferee of a Registrable Security (i) (A) that directly or indirectly
through one or more intermediaries controls, is controlled by or is under
common control with the initial Holder or (B) that is otherwise approved by
Quintiles (such approval not to be unreasonably withheld) and (ii) agrees in
writing
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at the time of such assignment or transfer to be bound by the restrictions set
forth herein. Otherwise, registration rights are non-transferable except as
set forth in Section 11(i) hereof.
"Initial Secondary Offering" shall have the meaning set forth
in Section 2.1(a).
"Initial Shelf Registration" shall have the meaning set forth
in Section 2.2(a).
"Joining Request" shall have the meaning set forth in Section
2.3(a).
"Maximum Number" shall have the meaning set forth in Section
2.3(b).
"Notice of Demand Request" shall have the meaning set forth in
Section 2.3(a).
"Other Securities" shall have the meaning set forth in the
definition of Registrable Securities.
"Person" shall mean an individual, trustee, corporation,
partnership, joint stock company, trust, unincorporated association, union,
business association, firm or other entity.
"Pooling Publication Date" shall mean the date on which
Quintiles shall have published financial results covering at least 30 days of
combined operations of Quintiles and Innovex following the Closing.
"Preliminary Prospectus" shall mean any preliminary prospectus
that may be included in any Registration Statement.
"Priority Period" shall have the meaning set forth in Section
5(a)(v).
"Prospectus" shall mean the prospectus included in any
Registration Statement (including, without limitation, a prospectus that
includes any information previously omitted from a prospectus filed as part of
an effective Registration Statement in reliance upon Rule 430A promulgated
under the Securities Act), as amended or supplemented by any prospectus
supplement, with respect to the terms of the offering of any portion of the
Registrable Securities covered by such Registration Statement, and all other
amendments and supplements to the Prospectus, including post-effective
amendments, and all material incorporated by reference or deemed to be
incorporated by reference in such Prospectus.
"Public Offering" shall mean the offer of shares of Common
Stock on a broadly-distributed basis, not limited to sophisticated investors,
pursuant to a firm-commitment or best-efforts underwriting arrangement.
"Registrable Securities" shall mean all shares of Common Stock
beneficially owned by a Holder on the date hereof (after giving effect to the
Closing) and set forth on Annex
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A attached hereto. As to any particular Registrable Securities, such shares
shall cease to be Registrable Securities (a) when a Registration Statement with
respect to the sale of such shares shall have become effective under the
Securities Act and such securities shall have been disposed of in accordance
with such Registration Statement, (b) when such shares shall have been sold
under Rule 144 (or any successor provision) under the Securities Act, (c) when
such shares shall have ceased to be outstanding, (d) after the Demand Period,
when such shares may be transferred without registration under the Securities
Act within the limitations of the exemption provided by Rule 144 (only to the
extent, and at times, during which the Holders would be able to sell pursuant
to such volume limitations a number of shares of Common Stock in any 90-day
period that is not less than the limits in Section 2.2(a)), or (e) when a
Holder sells or otherwise transfers its Registrable Securities to any person,
including another Holder, unless the sale or transfer is to a Holder in
compliance with the definition of "Holder"; provided that in the case of clause
(d), Quintiles' in-house counsel or regular outside counsel shall have
delivered a written opinion addressed to the transfer agent for Quintiles
Common Stock to the effect that such shares may be sold without registration
pursuant to Rule 144. The Holders shall provide such Rule 144 representation
letters in usual and customary form as may reasonably be requested by
Quintiles' counsel to provide such opinion. If as a result of any
reclassification, stock split, stock dividend, business combination, exchange
offer or other transaction or event, any capital stock, evidences of
indebtedness, warrants, options, rights or other securities (collectively
"Other Securities") are issued or transferred to a Holder in respect of
Registrable Securities held by such Holder, references herein to Registrable
Securities shall be deemed to include such Other Securities.
"Registration Statement" shall mean any registration statement
of Quintiles under the Securities Act that covers any of the Registrable
Securities, including the prospectus, amendments and supplements to such
registration statement, including post-effective amendments, all exhibits, and
all material incorporated by reference or deemed to be incorporated by
reference in such registration statements.
"Regulations" shall mean the General Rules and Regulation of
the Commission under the Securities Act.
"Required Holders" shall mean, as of any date of
determination, the Holders of 75% in interest of Registrable Securities
outstanding as of such date.
"Rule 144" shall mean Rule 144 of the Regulations, as such
Rule may be amended from time to time, or any similar rule (other than Rule
144A) or regulation hereafter adopted by the Commission providing for offers
and sales of securities made in compliance therewith resulting in offers and
sales by subsequent holders of such securities being free of the registration
and prospectus delivery requirements of the Securities Act.
"Securities Act" shall mean the United States Securities Act
of 1933, as amended, or any United States federal statute then in effect which
has replaced such statute, and a
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reference to a particular section thereof shall be deemed to include a
reference to the comparable section, if any, of any such replacement statute.
"Seller" shall have the meaning set forth in Section 2.3(a).
"Share Exchange Agreement" shall have the meaning set forth
in the first recital of this Agreement.
"Shelf Blackout Period" shall have the meaning set forth in
Section 2.2(d).
"Shelf Registration" shall have the meaning set forth in
Section 2.2(b).
"Subsequent Shelf Registration" shall have the meaning set
forth in Section 2.2(b).
"underwritten registration or underwritten offering" shall
mean a registration in which securities of Quintiles are sold to an
underwriter for reoffering to the public.
SECTION 2. REGISTRATION RIGHTS.
2.1 INITIAL SECONDARY OFFERING.
(a) Quintiles shall prepare and file with the Commission a
Registration Statement for an offering (the "Initial Secondary Offering") by
the Holders of an aggregate of at least 2.7 million shares of its Common Stock
and shall use its best efforts to cause such Registration Statement to be
declared effective as soon as practicable after the Pooling Publication Date.
As part of the Initial Secondary Offering, the Company may issue and sell up to
1 million shares of its authorized but unissued Common Stock, and Existing
Holders may sell up to 300,000 shares of Common Stock. If, prior to the
completion of the Initial Secondary Offering, any Holder or Holders sell
Registrable Securities, the amount of Registrable Securities includible in the
Initial Secondary Offering shall be reduced by the amount of such sales and the
requirements of the Initial Secondary Offering shall be deemed satisfied if
such lesser amount is sold pursuant to the Initial Secondary Offering. The
Managing Underwriter for the Initial Secondary Offering will be selected
jointly by Quintiles and the Required Holders (the "Initial Managing
Underwriter").
(b) The number of shares of Common Stock to be offered and
sold by the Holders in the Initial Secondary Offering shall be pro rata to
their respective shareholdings. In the event that any Holders elect not to
include in the Initial Secondary Offering shares of Common Stock which they
would otherwise be entitled to include pursuant to the preceding sentence, or
Existing Holders or Quintiles elect not to include in the Initial Secondary
Offering shares of Common Stock which they would otherwise be entitled to
include pursuant to Section 2.1(a) hereof, the number of shares not offered and
sold by any such Holders or Existing
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Holders or Quintiles may be offered and sold by the Holders who so elect pro
rata to their respective shareholdings. If the Initial Managing Underwriter
for such offering shall advise Quintiles in writing that the number of shares
of Common Stock contemplated by Section 2.1(a) exceeds the maximum number which
such Initial Managing Underwriter believes in good faith to be appropriate
based on market conditions and other factors, including pricing, the identity
of Holders and Existing Holders selling shares of Common Stock and the
proportion of such shares being sold by Quintiles, Existing Holders and the
Holders, respectively, the number of shares of Common Stock shall be reduced
among Quintiles, the several Holders and the Existing Holders such that, of the
total number of shares of Common Stock offered and sold in the Initial
Secondary Offering (without giving effect to the exercise of any overallotment
option), 67.5% shall be offered and sold by the Holders, 25.0% shall be offered
and sold by Quintiles and 7.5% shall be offered and sold by the Existing
Holders.
(c) In the event that in connection with the Initial
Secondary Offering, an overallotment option is to be granted to the
underwriters, shares of Common Stock to be sold pursuant to such option will be
sold only by the Holders pro rata to their respective shareholdings. In the
event that any Holders elect not to include in the Initial Secondary Offering
shares of Common Stock which they would otherwise be entitled to include
pursuant to the preceding sentence, the number of shares not offered and sold
by any such Holders may be offered and sold by the Holders who so elect pro
rata to their respective shareholdings.
(d) Quintiles represents to the Holders that it has been
advised by the financial advisors advising it on the Exchange that an offering
of at least 4 million shares of Common Stock to be sold by Quintiles, Existing
Holders and the Holders in the proportions contemplated hereby is feasible
based on the assumption that the Exchange is completed and market conditions
existing on the date of the Share Exchange Agreement do not deteriorate
significantly. If the size of the Initial Secondary Offering may, in the view
of the Initial Managing Underwriter, Quintiles and the Holders, be increased to
a level in excess of 4 million shares of Common Stock, any shares of Common
Stock to be sold in excess of 4 million shall be sold only by the Holders pro
rata to their respective shareholdings.
(e) Notwithstanding the foregoing, in the event that the
Maximum Number (as defined below) of shares of Common Stock to be sold in the
Initial Secondary Offering is less than 4 million but in excess of 1.75 million
shares, the number of shares to be sold in such a reduced offering by each of
Quintiles, the Holders and the Existing Holders, respectively, shall be in such
ratio as indicated in Annex B attached hereto.
2.2 SHELF REGISTRATION. (a) INITIAL SHELF REGISTRATION.
Quintiles shall prepare and file with the Commission no later than 90 days
following the settlement of the Initial Secondary Offering, or, if such
settlement shall not have occurred on or prior to March 31, 1997, no later than
March 31, 1997, one or more Registration Statements under the Regulations
covering at least 5 million Registrable Securities for offerings to be made by
Holders from time to time in the aggregate amount of no more than 500,000
Registrable Securities in any 90 day
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period (any or all such Registration Statements being hereinafter referred to
as the "Initial Shelf Registration"); provided, however, that the volume of
Registrable Securities that may be sold pursuant to the plan of distribution
described in any Registration Statement for the Initial Shelf Registration may
be increased from time to time by Quintiles after consultation with Xxxxxxx,
Xxxxx & Co. upon reasonable prior notice to the Holders. The Initial Shelf and
any Subsequent Shelf Registrations shall be non-underwritten. The Initial
Shelf Registration shall be on Form S-3 or another appropriate form permitting
registration of such Registrable Securities for resale by such Holders in the
manner or manners designated by them subject to the provisions hereof.
Quintiles shall use its best efforts to cause the Initial Shelf Registration to
be declared effective under the Securities Act not later than (i) the 121st
calendar day subsequent to the settlement of the Initial Secondary Offering or
(ii) if such settlement shall not have occurred on or prior to March 31, 1997,
on or as soon as practicable after March 31, 1997 and to keep the Initial Shelf
Registration continuously effective under the Securities Act until such time as
the earlier of (i) 4 million of the Registrable Securities covered by the
Initial Shelf Registration have been sold in the manner set forth and as
contemplated in the Initial Shelf Registration, (ii) a Subsequent Shelf
Registration (as defined herein) covering all of the Registrable Securities
covered by the Initial Shelf Registration and not previously sold has been
declared effective under the Securities Act, (iii) registration of the
Registrable Securities is no longer required under the Securities Act and the
Holder may sell all remaining Registrable Securities in the open market in
amounts that equal or exceed the amount that can be sold under this clause
pursuant to the volume and other limitations of Rule 144 or otherwise (giving
effect to the 90-day period in both cases), (iv) the covered securities cease
to be Registrable Securities or (v) three years have elapsed from the date on
which the Initial Shelf Registration was first declared effective (the "Shelf
Effectiveness Period").
(b) SUBSEQUENT SHELF REGISTRATIONS. If the Initial Shelf
Registration or any Subsequent Shelf Registration (as defined below) ceases to
be effective for any reason at any time during the Shelf Effectiveness Period
(other than because of the sale of all of the securities registered
thereunder), Quintiles shall use its best efforts to obtain the prompt
withdrawal of any order suspending the effectiveness thereof, and in any event
shall within 30 days of such cessation of effectiveness (i) amend the Shelf
Registration in a manner reasonably expected to obtain the withdrawal of the
order suspending the effectiveness thereof, or (ii) file an additional
Registration Statement covering all of the Registrable Securities covered by
the Initial Shelf Registration and not previously sold (a "Subsequent Shelf
Registration") for an offering to be made by the holders on a delayed or
continuous basis under the Regulations. If a Subsequent Shelf Registration is
filed, Quintiles shall use its best efforts to cause the Subsequent Shelf
Registration to be declared effective as soon as practicable after such filing
and to keep such Registration Statement continuously effective for the
remaining portion of the Shelf Effectiveness Period. As used herein, the term
"Shelf Registration" means the Initial Shelf Registration and any Subsequent
Shelf Registration.
(c) SUPPLEMENTS AND AMENDMENTS. Quintiles shall supplement
and amend the Shelf Registration if required by the Regulations applicable to
the registration form used for such
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Shelf Registration, if required by the Securities Act or the Regulations, or if
reasonably requested by the Holders of a majority in interest of the
Registrable Securities covered by such Registration Statement.
(d) BLACKOUT PERIOD. Notwithstanding the other
provisions of this Section 2.2, Quintiles shall have the right to delay the
filing of any Shelf Registration otherwise required to be prepared and filed by
Quintiles pursuant to this Section 2.2, or to suspend the use of any Shelf
Registration, for a period not in excess of 90 days (a "Shelf Blackout Period")
if Quintiles determines that the registration and distribution of the
Registrable Securities to be covered by such Shelf Registration would
materially interfere with any pending financing, acquisition or other
transaction involving Quintiles or would require disclosure of information
which is in its best interest not to publicly disclose provided, that, the
Blackout Period shall earlier terminate upon the completion or abandonment of
the relevant financing, acquisition or other transaction or upon public
disclosure by Quintiles or public admission by Quintiles of such material
nonpublic information or such time as such material nonpublic information shall
be publicly disclosed; and provided, further, that Quintiles shall furnish to
the Holders a certificate of an executive officer of Quintiles to the effect
that an event permitting a Blackout Period has occurred (and no other reason
need be given); provided, further, that for each Shelf Blackout Period, the
Holders' right to have a minimum number of Registrable Securities sold pursuant
to Section 2.2 shall be extended by an equal period beyond the date such right
would otherwise have terminated. Quintiles will promptly give the Holders
written notice of such determination and an approximation of the period of the
anticipated delay; provided, however, that the aggregate number of days
included in all Shelf Blackout Periods during any consecutive 12 months shall
not exceed 180 days. Each Holder agrees to cease all disposition efforts under
such Registration Statement with respect to Registrable Securities held by such
Holder immediately upon receipt of notice of the beginning of any Shelf
Blackout Period. Quintiles shall provide written notice to the Holders of the
end of each Shelf Blackout Period.
(e) MANNER OF SALE. The Holders agree that all sales of
Registrable Securities covered by a Shelf Registration shall be made through
one of the top three market-makers (in terms of NASDAQ-trading volume) in
Quintiles Common Stock subject to such market-makers offering best market
terms.
2.3 DEMAND RIGHTS. (a) Subject to Section 2.3(b) below,
at any time, and from time to time, on or after the date on which Holders are
first permitted to sell shares following the Initial Secondary Offering any
Holder or group of Holders who hold and propose to sell Registrable Securities
with an aggregate value of at least $50 million (herein, individually or
collectively, as the case may be, a "Demanding Holder"), shall have the right
to require Quintiles to file a Registration Statement under the Securities Act
for a Public Offering of all or part of such Demanding Holder's Registrable
Securities, up to a maximum of 2.7 million shares in the aggregate, reduced by
the number of shares of Common Stock previously sold by Holders in the Initial
Secondary Offering or pursuant to any prior Demand Request, by delivering
written notice thereof to Quintiles specifying the number of Registrable
Securities to
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be included in such registration and the intended method of distribution
thereof (the "Demand Request"). Quintiles shall, within 10 days after receipt,
give written notice by facsimile transmission (the "Notice of Demand Request")
of such Demand Request to all Holders of any Registrable Securities. Thereupon
Quintiles shall prepare and file with the Commission as promptly as practicable
following the receipt of the Notice of Demand Request, and in any event within
30 days thereafter, a Registration Statement covering, and shall use its best
efforts to effect the registration under the Securities Act of, (i) the
Registrable Securities included in the Demand Request, for disposition in
accordance with the intended method of disposition stated in the Demand Request
and (ii) all other Registrable Securities as to which the Holders thereof that
have received a Notice of Demand Request and shall have made a written request
(a "Joining Request") to Quintiles for registration thereof within ten days
after the transmittal of such Notice of Demand Request, in each case subject to
the 2.7 million (or lesser) share maximum referred to in the preceding
sentence, all to the extent necessary to permit the sale or other disposition
by such Holders (each, a "Seller" and, collectively, the "Sellers") of such
Registrable Securities.
(b) Quintiles's obligations pursuant to Section 2.3(a) above
are subject to the following limitations and conditions: (i) Quintiles shall
not be obligated to fulfill the requirements or file the Registration Statement
referred to therein (A) during any period of time (not to exceed sixty (60)
days in the aggregate with respect to each request) when Quintiles has
determined to proceed with a Public Offering (whether for its own account or
that of any Holder pursuant to any previously received Demand Request and
related Joining Request) and, in the judgment of the managing underwriter
thereof, the fulfillment of such requirements or such filing would have an
adverse effect on the material terms of such offering, (B) during any period of
time (not to exceed ninety (90) days with respect to each request) when
Quintiles is in possession of material information that Quintiles (x) has
determined, after advice of Quintiles's lead US securities counsel, would be
required to be disclosed in an offering registered under the Securities Act and
(y) reasonably deems is in Quintiles's best interests not to publicly disclose,
or (C) during the 90-day period following the effectiveness of any previous
Registration Statement (the periods of time referred to in subclauses (A), (B)
and (C) hereof being hereinafter referred to as "Blackout Periods"); provided,
that the aggregate period of time during which Quintiles shall be relieved from
its obligation to file such a Registration Statement pursuant to this clause
(i) shall in no event exceed ninety (90) consecutive days with respect to each
request; provided, further, that, in the case of a Blackout Period pursuant to
sub-clause (i)(A) above, the Blackout Period shall earlier terminate upon the
completion or abandonment of the relevant securities offering; provided,
further, that in the case of a Blackout Period pursuant to sub-clause (i)(B)
above, the Blackout Period shall earlier terminate upon public disclosure by
Quintiles or public admission by Quintiles of such material nonpublic
information or such time as such material nonpublic information shall be
publicly disclosed without breach of the last sentence of this subsection (b);
and provided, further, that in the case of a Blackout Period pursuant to
sub-clauses (i)(A), (B) or (C) above, Quintiles shall furnish to the Security
Holders a certificate of an executive officer of Quintiles to the effect that
an event permitting a Blackout Period has occurred and is continuing (and no
other reason need be given); provided, further, that Quintiles
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shall not be entitled to exercise its rights under sub-clause (i)(B) more than
three (3) times in any twenty-four (24) month period, and under sub-clause
(i)(C) more than one (1) time in any nine-month period; and provided, further,
that if prior to the expiration of any Blackout Period the Demanding Holders
withdraw their Demand Request, such request shall not be considered a Demand
Request for purposes of this Section 2.3(b) and such Demand Request and any
Joining Request related thereto shall be of no further effect; (ii) Quintiles
shall not be required to maintain the effectiveness of a Registration Statement
filed pursuant to Section 2.3(a) for a period in excess of thirty (30) days;
(iii) the minimum aggregate offering price of any such Public Offering, as
estimated in good faith by the managing underwriter thereof immediately prior
to the time the Registration Statement with respect to any such Public Offering
becomes effective, shall be at least $50 million; (iv) the number of shares of
Common Stock to be sold in any such Public Offering shall not exceed the
maximum number which the managing underwriter thereof considers in good faith
to be appropriate based on market conditions and other relevant factors,
including pricing, the identity of the Holders and Existing Holders selling
shares of Common Stock and the proportion of shares of Common Stock being sold
by Quintiles, by the Holders and by the Existing Holders (the "Maximum
Number"); and (v) Quintiles shall not during the Demand Period (as defined
below) be obligated to effect more than one Demand Registration in any
six-month period.
(c) Subject to Section 2.5, Quintiles may elect to include in
any Registration Statement filed pursuant to this Section 2.3 any authorized
but unissued shares of Common Stock; provided, that such inclusion shall be
permitted only to the extent that it is pursuant to and subject to the terms of
any underwriting agreement or arrangements entered into by the Demanding
Holders whose Registrable Securities are also included therein.
(d) A request by a Holder or Holders that Quintiles file a
Registration Statement shall not be considered a Demand Request if the
Registration Statement relating thereto does not become effective, through no
fault of the Holders.
2.4. "PIGGY-BACK" RIGHTS. If at any time within three years
from the settlement of the Initial Secondary Offering, Quintiles proposes to
register any authorized but unissued shares of Common Stock under the
Securities Act on a registration statement on Form S-1, Form S-2 or Form S-3
(or an equivalent general registration form then in effect) for purposes of a
Public Offering by Quintiles of such shares, Quintiles shall give written
notice of such proposal at least twenty (20) days before the anticipated filing
date, which notice shall include the intended method of distribution of such
shares, to each of the Holders who hold Registrable Securities. Such notice
shall specify at a minimum the number of shares of Common Stock proposed to be
registered, the proposed filing date of such registration statement, any
proposed means of distribution of such shares and the proposed managing
underwriter, if any. Subject to Section 2.5, upon the written request of any
such Holder, given within ten (10) days after the receipt of any such written
notice by facsimile confirmed by mail (which request shall specify the
Registrable Securities intended to be disposed of by such Holder), Quintiles
will use its best efforts to include in the registration statement with respect
to such Public Offering the number
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of the Registrable Securities referred to in such Holder's request; provided,
that, any participation in such Public Offering by such Holders shall be on
substantially the same terms as Quintiles's participation therein; and
provided, further, that the number of Registrable Securities to be included in
any such Public Offering shall not exceed the Maximum Number. Any such Holder
shall have the right to withdraw a request to include Registrable Securities in
any Public Offering pursuant to this Section 2.4 by giving written notice to
Quintiles of its election to withdraw such request at least five (5) days prior
to the proposed effective date of such registration statement.
2.5. ALLOCATION OF SECURITIES INCLUDED IN A PUBLIC OFFERING.
If the managing underwriter for any Public Offering to be effected pursuant to
Section 2.3 or Section 2.4 of this Agreement shall advise Quintiles and the
Sellers in writing that the number of shares of Common Stock sought to be
included in such Public Offering (including those sought to be offered by
Quintiles, those sought to be offered by Sellers and those sought to be offered
by Existing Holders) is more than the Maximum Number, the shares of Common
Stock to be included in such Public Offering shall be allocated pursuant to the
following procedures:
(a) until such time as the Holders have sold in the aggregate
at least 2.7 million shares of Common Stock (whether through the
Initial Secondary Offering or otherwise) (the "Demand Period"),
Registrable Securities to be sold pursuant to any Registration
Statement (whether as a result of a Demand Request or otherwise, but
not including any Shelf Registration Statement) shall be allocated
among the Holders and Quintiles and Existing Holders such that, of the
total number of shares sold pursuant to such Registration Statement,
67.5% shall be sold by the Holders, 25% shall be sold by the Company
and 7.5% shall be sold by Existing Holders; provided that (i) to the
extent that Existing Holders or Quintiles elect not to sell pursuant to
such Registration Statement shares of Common Stock which they would
otherwise be entitled to sell pursuant to the preceding clause, the
number of shares not sold by such Existing Holders or Quintiles may be
sold by the Holders who so elect pro rata to their respective
shareholdings, and (ii) in the event that in connection with any
underwritten offering pursuant to any such Registration Statement an
overallotment option is granted to the underwriters, shares of Common
Stock to be sold pursuant to such option shall be sold by the Holders
pro rata to their respective shareholdings;
(b) if, following the end of the Demand Period, such
registration or Public Offering is pursuant to Section 2.4 of this
Agreement, (x) first, securities sought to be included at the request
of Quintiles shall be included, and (y) second, if the number of
securities to be registered exceeds the Maximum Number, the amount of
Registrable Securities proposed to be offered by Holders shall be
reduced as agreed among such Holders, to the extent necessary to
reduce the total amount of securities to be included in such offering
to the Maximum Number; provided that shares to be sold by the Holders
are not reduced to less than 20% of all shares to be sold in such
Public Offering.
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2.6. REQUIREMENTS WITH RESPECT TO REGISTRATION. Subject to
Section 4 and to Quintiles's rights with respect to Blackout Periods and Shelf
Blackout Periods, if and whenever Quintiles is required by the provisions
hereof to use its best efforts to register any Registrable Securities under the
Securities Act, Quintiles shall:
(a) As promptly as practicable (and in the case of a Demand
Request, in no event more than 30 days following such Demand Request)
prepare and file with the Commission a Registration Statement with
respect to such Registrable Securities and use its best efforts to
cause such Registration Statement to become and remain effective;
provided, however, that, before filing any Registration Statement or
prospectus or any amendments or supplements thereto, Quintiles shall
furnish to and afford the Holders of the Registrable Securities
covered by such Registration Statement, and the managing underwriters,
if any, a reasonable opportunity to review and comment on copies of
all such documents (including copies of any documents to be
incorporated by reference therein and all exhibits thereto) proposed
to be filed.
(b) As promptly as practicable, prepare and file with the
Commission such amendments and supplements to such Registration
Statement and the prospectus used in connection therewith as may be
necessary to keep such Registration Statement current and effective
and to comply with the provisions of the Securities Act, and the
Regulations, with respect to the sale or disposition of such
Registrable Securities (the "Effectiveness Period"). In the event of
an underwritten offering, Quintiles shall select the managing
underwriter(s), except as provided in Section 2.1(a).
(c) Promptly notify each Seller of any Registrable Securities
covered by such Registration Statement (A) when the Registration
Statement or any related prospectus or any amendment or supplement has
been filed, and, with respect to the Registration Statement or any
post-effective amendment, when the same has become effective, (B) of
any request by the Commission for amendments or supplements to the
Registration Statement or the related prospectus or for additional
information, (C) of any order issued or threatened by the Commission
suspending the effectiveness of such Registration Statement,
preventing or suspending the use of a prospectus or suspending the
qualification (or exemption from qualification) of any of the
Registrable Securities for sales in any jurisdiction Quintiles shall
use its best efforts to prevent the issuance of any such order and, if
any such order is issued, shall use its best efforts to obtain the
withdrawal of any such order at the earliest possible moment or (D) of
the receipt by Quintiles of any notification with respect to the
suspension of the qualification of the Registrable Securities for sale
in any jurisdiction or the initiation of any proceedings for such
purpose.
(d) Immediately upon becoming aware thereof, notify each
Seller and underwriter of such Registrable Securities, at any time
when a prospectus relating thereto is required to be delivered under
the Securities Act, of the occurrence of an event requiring the
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preparation of a supplement or amendment to such prospectus so that,
as thereafter delivered to the purchasers of such Registrable
Securities, such prospectus will not contain 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 under which they were made, not misleading and
promptly make available to each Seller and underwriter any such
supplement or amendment, unless suspension of the use of such
prospectus otherwise is authorized herein or in the event of a
Blackout Period or Shelf Blackout Periods, in which case no supplement
or amendment need be furnished. The Holders may not make use of any
Registration Statement while its use is suspended.
(e) Use its best efforts to register or qualify the
Registrable Securities covered by such Registration Statement under
such securities or blue sky laws of such jurisdictions in the United
States as the Sellers participating in the Public Offering or the
managing underwriter thereof shall reasonably request, and do any and
all other acts and things that may be reasonably necessary to enable
each participating Seller or underwriter to consummate the disposition
of the Registrable Securities in such jurisdictions; provided,
however, that in no event shall Quintiles be required to qualify to do
business as a foreign corporation in any jurisdiction where it is not
so qualified; or to execute or file any general consent to service of
process under the laws of any jurisdiction.
(f) Make available upon reasonable advance notice for
inspection by any Seller of such Registrable Securities, any
underwriter participating in any disposition pursuant to such
Registration Statement and any attorney, accountant or other
professional retained by any such Seller or underwriter (collectively,
the "Inspectors"), all financial and other records, pertinent
corporate documents and properties of Quintiles (collectively, the
"Records") as shall be reasonably necessary to enable them to conduct
a "reasonable" investigation for purposes of Section 11(a) of the
Securities Act and cause Quintiles's officers, directors and employees
to supply all information reasonably requested by any Inspectors in
connection with such Registration Statement.
(g) Use its best efforts to cause all Registrable
Securities covered by such Registration Statement to be (A) qualified
for trading on the National Association of Securities Dealers
Automated Quotation--National Market System ("NASDAQ") and (B) listed
or qualified for trading on any other stock exchange or quotation
service on which Quintiles's outstanding shares of Common Stock are
listed or qualified for trading.
(h) Furnish to each Seller and each underwriter of the
Registrable Securities covered by such Registration Statement such
number of copies of such Registration Statement, each amendment and
supplement thereto (in each case including all exhibits thereto and
documents incorporated by reference therein), the Prospectus included
in such Registration Statement (including each Preliminary Prospectus)
and such other documents
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as such Holder or underwriter may reasonably request in order to
facilitate the disposition of the Registrable Securities owned by such
Seller.
(i) In connection with an underwritten offering of
Registrable Securities, enter into an underwriting agreement in such
form as is customary in underwritten offerings made by selling
security holders and take all such other actions as are reasonably
requested by the managing underwriters for such underwritten offering
in order to expedite or facilitate the registration or the
disposition of such Registrable Securities, and in such connection,
(A) make such representations and warranties to the underwriters and
the Sellers with respect to the business of Quintiles and its
subsidiaries, and the Registration Statement, Prospectus and
documents, if any, incorporated or deemed to be incorporated by
reference therein, in each case, as are customarily made by issuers to
underwriters in underwritten offerings made by selling security
holders, and confirm the same on the settlement date for the offering;
(B) cause opinions of counsel to Quintiles (which counsel and opinions
shall be reasonably satisfactory to the managing underwriters), to be
delivered to the underwriters and the Sellers covering the matters
customarily covered in opinions requested in underwritten offerings by
selling security holders; (C) cause "cold comfort" letters and updates
thereof (which letters and updates shall be reasonably satisfactory to
the managing underwriters) from the independent certified public
accountants of Quintiles (and, if necessary, any other independent
certified public accountants of any subsidiary of Quintiles or of any
business acquired by Quintiles for which financial statements and
financial data are, or are required to be, included in the
Registration Statement), to be delivered to each of the underwriters
and the Sellers of such Registrable Securities included in such
underwritten offering (if such accountants are permitted under
applicable law and accounting literature to so address "cold comfort"
letters), such letters to be in customary form and covering matters of
the type customarily covered in "cold comfort" letters in connection
with underwritten offerings by selling security holders; and (D) if an
underwriting agreement is entered into, the same shall contain
customary indemnification provisions and procedures from Quintiles in
favor of both the Sellers of such Registrable Securities and the
underwriters or selling agents. The delivery of certificates,
opinions and letters referred to above shall be done at each closing
under such underwriting agreement, as and to the extent required
thereunder.
(j) Comply with all applicable rules and regulations of
the Commission and make generally available to security holders
earning statements satisfying the provisions of Section 11(a) of the
Securities Act and Rule 158 thereunder (or any similar rule
promulgated under the Securities Act) not later than 45 days after the
end of any 12-month period (or 90 days after the end of any 12-month
period if such period is a fiscal year) (A) commencing at the end of
any fiscal quarter in which Registrable Securities are sold to
underwriters in a Public Offering and (B) if not sold to underwriters
in such an offering, commencing on the first day of the fiscal quarter
of Quintiles after the effective date of a Registration Statement,
which statements shall cover said 12-month periods.
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(k) Cooperate with each Seller and the managing
underwriter, if any, participating in the disposition of such
Registrable Securities in connection with any filings required to be
made with the National Association of Securities Dealers, Inc. (the
"NASD").
(l) Use its best efforts to take all other steps
reasonably necessary to effect the registration, offering and sale of
the Registrable Securities covered by a Registration Statement
contemplated hereby and enter into any other customary agreements and
take such other actions, including participation in "roadshows", as
are reasonably required in order to expedite or facilitate the
disposition of such Registrable Securities.
(m) Until there are no Registrable Securities outstanding
or, if earlier, March 31, 1999, at the reasonable request of the
Holders, hold periodic meetings with representatives of the Holders to
report on the market for Quintiles's shares and opportunities for such
Holders to effect sales of Registrable Securities.
(n) With respect to any Registration Statement under
Section 2 hereof, the Company may require each Holder disposing of
Registrable Securities covered by such Registration Statement to
furnish such information regarding the Holder and such Holder's
intended disposition of Registrable Securities as the Company may from
time to time reasonably request (with reasonable prior notice) in
writing. If any such information with respect to the Holder is not
furnished within a reasonable period of time after receipt of such
request, the Company may exclude such Holder's Registrable Securities
from such Registration Statement.
SECTION 3. HOLD-BACK AGREEMENT.
(a) Each Holder whose Registrable Securities are covered by a
Registration Statement filed pursuant hereto agrees, that it will upon the
reasonable request (pursuant to a timely written notice) of the managing
underwriter or underwriters in an underwritten offering, not to effect any
public sale or distribution of any of the securities of Quintiles being
registered, or any similar security of Quintiles, or any securities convertible
or exchangeable or exercisable for such securities, including sale pursuant to
Rule 144 (except in each case as part of such underwritten offering), during
the period beginning 30 days prior to, and ending 120 days after, the closing
date of each underwritten offering made pursuant to such Registration
Statement, to the extent timely notified in writing by Quintiles or by the
managing underwriter of such underwritten offering.
(b) Each Holder agrees with each other Holder that in
connection with any underwritten offering it will not vote shares of Common
Stock held by it for any capital increase the effect of which would be that
Quintiles could effect any public sale or distribution of any shares of Common
Stock of Quintiles, or any similar security of Quintiles, or any securities
convertible or exchangeable or exercisable for such securities (except as part
of such offering),
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during the period beginning 30 days prior to and ending 120 days after the
closing date of such underwritten offering, to the extent timely notified and
requested in writing by Quintiles or by the managing underwriter of such
underwritten offering.
SECTION 4. REGISTRATION EXPENSES.
(a) Except as provided in clause (b) below, all fees and
expenses incident to the registration and sale of the Registrable Securities
shall be borne by Quintiles whether or not a Registration Statement is filed or
becomes effective, including, without limitation, (i) all registration and
filing fees (including, without limitation, (A) fees with respect to filings
required to be made with the NASD in connection with an underwritten offering
and (B) fees and expenses of compliance with state securities or Blue Sky laws
(including, without limitation, fees and disbursements of counsel for Quintiles
or the underwriters, or both, in connection with Blue Sky qualifications of the
Registrable Securities)), (ii) printing expenses (including, without
limitation, expenses of printing certificates for Registrable Securities in a
form eligible for deposit with The Depository Trust Company, printing
Preliminary Prospectuses, Prospectuses, and printing or preparing any
underwriting agreement, agreement among underwriters and related syndicate or
selling group agreements, pricing agreements and Blue Sky memoranda), (iii)
fees and disbursements of counsel for Quintiles, (iv) fees and disbursements of
all independent certified public accountants for Quintiles (including, without
limitation, the expenses of any "cold comfort" letters required by or incident
to such performance), (v) the fees and expenses of any "qualified independent
underwriter" or other independent appraiser participating in an offering
pursuant to Section 3 of Rule 2720 of the Conduct Rules of the NASD, (vi)
Securities Act liability insurance, if Quintiles so desires such insurance,
(vii) the expenses and costs of any roadshow (including travel, meals,
accommodation and other arrangements for any investor presentations or
meetings); (viii) the fees, expenses and costs of any public relations,
investor relations or other consultants retained by Quintiles in connection
with any roadshow (including travel and other arrangements for any investor
presentations or meetings); (ix) all out-of-pocket expenses of Quintiles
(including, without limitation, expenses incurred by officers and employees of
Quintiles performing legal or accounting duties or participating in "roadshow"
presentations), and (x) the fees and expenses incurred in connection with the
quotation or listing of shares of Common Stock on any securities exchange or
automated securities quotation system ((i) through (x) above collectively,
"Registration Expenses").
(b) Each Seller shall pay all underwriting discounts and
commissions or broker's commissions incurred in connection with the sale or
other disposition of Registrable Securities for or on behalf of such Seller's
account and any fees and expenses of legal counsel and other advisors
separately engaged by them for such Seller.
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SECTION 5. REPRESENTATIONS, WARRANTIES AND AGREEMENTS.
(a) Quintiles Representations, Warranties and Agreements.
Quintiles represents and warrants to, and agrees with, each Holder that:
(i) Quintiles has all requisite corporate power
and authority to execute, deliver, and perform this Agreement. This
Agreement has been duly authorized, executed, and delivered by
Quintiles. No consent, authorization, approval, order, license,
certificate, or permit of or from, or declaration or filing with, any
United States federal, state, local, or other governmental authority
or any court or other tribunal is required by Quintiles for the
execution, delivery or performance of this Agreement by Quintiles
(except filings under the Securities Act which will be made and any
consents under Blue Sky or state securities laws which will be
obtained).
(ii) Quintiles shall not enter into any
transaction involving the issuance or transfer by any other Person of
Other Securities to any Holder, or any merger or consolidation in
which it is not the surviving Person, or any sale, lease or other
transfer of all or substantially all the assets of Quintiles, unless
effective provision is made for the assumption by such other Person,
jointly and severally with Quintiles if Quintiles shall remain in
existence, of all of the obligations of Quintiles hereunder, and in
the case of any such issuance or transfer, the registration of such
Other Securities on the same basis as the registration of the other
Registrable Securities hereunder.
(iii) The execution and delivery of this Agreement
by Quintiles do not, and the consummation of the transactions
contemplated hereby will not, violate, conflict with, or result in a
breach of any provision of, or constitute a default (with or without
notice or lapse of time or both) under, or result in the termination
of, or accelerate the performance required by, or result in a right of
termination, cancellation, or acceleration of any obligation or the
loss of a material benefit under, or result in the creation of any
lien, security interest, charge or encumbrance upon any of the
properties or assets (any such violation, conflict, breach, default,
right of termination, cancellation or acceleration, loss or creation,
a "Violation") of Quintiles or any of its subsidiaries pursuant to any
provisions of (i) the articles of incorporation, by-laws or similar
governing documents of Quintiles or any of its subsidiaries, (ii) any
statute, law, ordinance, rule, regulation, judgment, decree, order,
injunction, writ, permit or license of any governmental authority
applicable to Quintiles or any of its subsidiaries or any of their
respective properties or assets or (iii) any note, bond, mortgage,
indenture, deed of trust, license, franchise, permit, concession,
contract, lease or other instrument, obligation or agreement of any
kind to which Quintiles or any of its subsidiaries is a party or by
which it or any of its properties or assets may be bound or affected.
(iv) Quintiles covenants that it will file any
reports required to be filed by it under the Securities Act and the
Exchange Act, will make available "adequate
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current public information concerning Quintiles within the meaning of
paragraph (c) of Rule 144" and that it will take such further action
as any Holder may reasonably request, all to the extent required from
time to time to enable Holders to sell Registrable Securities without
registration under the Securities Act pursuant to the exemptions
provided by Rule 144. Upon the request of any Holder, Quintiles will
deliver to such Holder a written statement as to whether it has
complied with such requirements.
(v) Quintiles covenants that it will not conduct
any offering of equity (or equity-linked) securities, whether
registered under the Securities Act or otherwise, from and after the
date of the Closing until the earlier of (A) the closing of the
Initial Secondary Offering and (B) March 31, 1997 (the "Priority
Period") (excluding, for the avoidance of doubt, the Initial Secondary
Offering itself), other than securities issued (i) in connection with
Quintiles's acquisition of BRI, (ii) pursuant to any employee benefit
plans, employee stock option plans and stock purchase plans of
Quintiles as in effect as of the date of this Agreement, (iii) shares
of Common Stock issued upon conversion of the convertible debentures
of Quintiles outstanding as of the date of this Agreement, or (iv) in
an amount not to exceed an aggregate of 1,000,000 shares of Quintiles
Common Stock in connection with one or more acquisitions, unless any
such issuances will, in the judgment of one or more Holders of at
least 25% of the outstanding Registrable Securities, risk a delay in
the Initial Secondary Offering or jeopardize the ability of the
Holders to participate in the Initial Secondary Offering on the terms
contemplated herein.
(b) Holder Representations, Warranties and Agreements.
Each Holder represents and warrants to, and agrees with, Quintiles, that:
(i) Such Holder, if not a natural person, is duly
organized, validly existing, and in good standing under the laws of
its jurisdiction of organization. Such Holder has all requisite power
and authority to execute, deliver, and perform this Agreement. This
Agreement has been duly authorized by such Holder, if not a natural
person, and has been duly executed and delivered by such Holder.
(ii) Neither such Holder nor any such Holder's
Affiliates will take, directly or indirectly, during the term of this
Agreement, any action designed to stabilize (except as may be
permitted by applicable law) or manipulate the price of any security
of Quintiles.
(iii) Such Holder shall promptly furnish to
Quintiles upon Quintiles's request any and all information as may be
required by, or as may be necessary or advisable to comply with the
provisions of, the Securities Act, the Regulations, the Exchange Act,
and the rules and regulations of the Commission thereunder in
connections with the preparation and filing of any Registration
Statement pursuant hereto,
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or any amendment or supplement thereto, or any Preliminary Prospectus
or Prospectus included therein.
SECTION 6. SURVIVAL OF REPRESENTATIONS AND AGREEMENTS.
All representations, warranties, covenants and agreements
contained in this Agreement shall be deemed to be representations, warranties,
covenants and agreements at the effective date of each Registration Statement
contemplated by this Agreement, and such representations, warranties, covenants
and agreements, shall remain operative and in full force and effect regardless
of any investigation made by or on behalf of Quintiles, any Holder, or any
other Person and shall survive termination of this Agreement.
SECTION 7. INDEMNIFICATION.
(a) Indemnification by Quintiles. Quintiles shall, without
limitation as to time, indemnify and hold harmless, to the fullest extent
permitted by law, each holder of Registrable Securities, and any underwriter
participating in the distribution, their respective officers, directors and
agents and employees of each of them, each Person who controls each such holder
or any such underwriter (within the meaning of Section 15 of the Securities Act
and Section 20 of the Exchange Act) and the officers, directors, agents and
employees of each such controlling person (individually, an "Indemnified
Person") from and against any and all losses, claims, damages, liabilities,
costs (including, without limitation, costs of investigating, preparing to
defend, defending and appearing as a third-party witness and attorney's fees
and disbursements) and expenses, including any amounts paid in respect of any
settlements (collectively, "Losses"), joint or several, without duplication, as
incurred, arising out of or based upon any untrue or alleged untrue statement
of a material fact contained in any Registration Statement, Prospectus or form
of prospectus, or in any amendment or supplements thereto or in any Preliminary
Prospectus, or arising out of or based upon, in the case of the Registration
Statement or any amendments thereto, any omission or alleged omission of a
material fact required to be stated therein or necessary to make the statements
therein not misleading, and, in the case of the Prospectus or form of
prospectus, or in any amendments or supplements thereto, or in any Preliminary
Prospectus, any omission or alleged omission of a material fact required to be
stated therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading except, in either
case, (i) to the extent, but only to the extent, that such untrue or alleged
untrue statement or omission or alleged omission has been made therein in
reliance upon and in conformity with information furnished in writing to
Quintiles by such Indemnified Person expressly for use therein and (ii) if the
person asserting any such Losses who purchased the Registrable Securities which
are the subject thereof did not receive a copy of an amended Preliminary
Prospectus or the final Prospectus (or the final Prospectus as amended or
supplemented) at or prior to the written confirmation of the sale of such
Registrable Securities to such person and the untrue statement or alleged
untrue statement
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or omission or alleged omission of a material fact made in such Preliminary
Prospectus was corrected in the amended Preliminary Prospectus or the final
Prospectus (or the final Prospectus as amended and supplemented).
(b) Indemnification by Holder of Registrable Securities. In
connection with any Registration Statement in which a Holder of Registrable
Securities is participating, such Holder of Registrable Securities shall
furnish to Quintiles in writing such information as Quintiles reasonably
requests for use in connection with any Registration Statement or Prospectus,
and shall severally, without limitation as to time, indemnify and hold
harmless, to the fullest extent permitted by law, Quintiles, any underwriter
participating in the distribution and their respective directors, officers,
agents and employees, each Person who controls Quintiles or any such
underwriter (within the meaning of Section 15 of the Securities Act and Section
20 of the Exchange Act), and the directors, officers, agents or employees of
such controlling person, from and against any and all Losses, as incurred,
arising out of or based upon (i) any untrue or alleged untrue statement of a
material fact contained in any Registration Statement, Prospectus, or form of
prospectus, or in any amendment or supplement thereto or in any Preliminary
Prospectus, or arising out of or based upon, in the case of the Registration
Statement or any amendments thereto, any omission or alleged omission of a
material fact required to be stated therein or necessary to make the statements
therein not misleading, and, in the case of the Prospectus, or form of
prospectus, or in any amendments or supplements thereto, or in any Preliminary
Prospectus, any omission or alleged omission of a material fact required to be
stated therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, in either case, to
the extent, but only to the extent, that such untrue or alleged untrue
statement or omission or alleged omission has been made therein in reliance
upon and in conformity with information furnished in writing to Quintiles by
such Holder expressly for use therein or (ii) the failure of such participating
Holder or any underwriter acting for such participating Holder at or prior to
the written confirmation of the sale of the Registrable Securities to send or
deliver a copy of an amended Preliminary Prospectus or the final Prospectus (or
the final Prospectus as amended or supplemented) to the person asserting any
such Losses who purchased the Registrable Securities which are the subject
thereof and the untrue statement or alleged untrue statement or omission or
alleged omission of a material fact made in such Preliminary Prospectus was
corrected in the amended Preliminary Prospectus or the final Prospectus (or the
final Prospectus as amended and supplemented). In no event shall the liability
of any Seller of Registrable Securities hereunder be, or be claimed by
Quintiles to be, greater in amount than the dollar amount of the proceeds
actually received by such Seller upon the sale of the Registrable Securities
giving rise to such indemnification obligation.
(c) Conduct of Indemnification Proceedings. Each Indemnified
Person shall give prompt notice to the party or parties from which such
indemnity is sought (the "indemnifying parties") of the commencement of any
action or proceeding (including any governmental investigation) (collectively
"Proceedings" and individually a "Proceeding") with respect to which such
Indemnified Person seeks indemnification or contribution pursuant hereto;
provided,
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however, that the failure so to notify the indemnifying parties shall not
relieve the indemnifying parties from any obligation or liability except to the
extent that the indemnifying party was otherwise unaware of such Proceeding and
the indemnifying parties shall have been materially prejudiced by such failure.
The indemnifying parties shall have the right, exercisable by giving written
notice to an indemnified party promptly after the receipt of written notice
from such indemnified party of such Proceeding, to assume, at the indemnifying
parties' expense, the defense of any such proceeding, with counsel reasonably
satisfactory to such indemnified party and shall pay as incurred the fees and
disbursements of such counsel related to such Proceeding; provided, however,
that an indemnified party or parties (if more than one such indemnified party
is named in any Proceeding) shall have the right to employ separate counsel in
any such Proceeding and to participate in the defense thereof, but the fees and
expenses of such counsel shall be at the expense of such indemnified party or
parties unless: (1) the indemnifying party or parties agree to pay such fees
and expenses; or (2) the indemnifying parties fail promptly to assume the
defense of such Proceeding or fail to employ counsel reasonably satisfactory to
such indemnified party or parties; or (3) the named parties to any such action
(including any impleaded parties) include both the indemnified party and the
indemnifying party, and the indemnified party or parties shall have been
advised by counsel that there may be a conflict between the positions of the
indemnifying party or an affiliate of the indemnifying party and such
indemnified party or parties in conducting the defense of such action or
proceeding or that there may be legal defenses available to such indemnified
party or parties different from or in addition to those available to the
indemnifying party or such affiliate, in which case, if such indemnified party
or parties notifies the indemnifying parties in writing that it elects to
employ separate counsel at the expense of the indemnifying parties, the
indemnifying parties shall not have the right to assume the defense thereof and
such counsel shall be at the expense of the indemnifying parties, it being
understood, however, that the indemnifying parties shall not, in connection
with any one such Proceeding or separate but substantially similar or related
Proceedings in the same jurisdiction, arising out of the same general
allegations or circumstances, be liable for the reasonable fees and expenses of
more than one separate firm of attorneys (together with appropriate local
counsel) at any time for such indemnified party or parties. Whether or not
such defense is assumed by the indemnifying parties, such indemnifying parties
or indemnified party or parties will not be subject to any liability for any
settlement made without its or their consent (but such consent will not be
unreasonably withheld). No indemnifying party shall be liable for any
settlement of any such action or proceeding effected without its written
consent, but if settled with its written consent each indemnifying party
jointly and severally agrees, subject to the exception and limitations set
forth above, to indemnify and hold harmless each indemnified party from and
against any loss or liability by reason of such settlement. No indemnification
provided for in Section 7(a) or Section 7(b) shall be available to any party
who shall fail to give notice as provided in this Section 7(c) if the party to
whom notice was not given was unaware of the proceeding to which such notice
would have related and was materially prejudiced by the failure to give such
notice, but the failure to give such notice shall not relieve the indemnifying
party or parties from any liability which it or they may have to the
indemnified party otherwise than on account of the provisions of Section 7(a)
or Section 7(b).
-21-
24
(d) Contribution. If the indemnification provided for in
this Section 7 is unavailable to an indemnified party or is insufficient to
hold such indemnified party harmless for any Losses in respect to which this
Section 7 would otherwise apply by its terms, except by reasons of Section
7(a)(i) or (ii) hereof or the failure of the indemnified party to give notice
as required in Section 7(c) hereof (provided that the indemnifying party was
unaware of the proceeding to which such notice would have related and was
prejudiced by the failure to give such notice), then each applicable
indemnifying party, in lieu of indemnifying such indemnified party, shall have
an obligation to contribute to the amount paid or payable by such indemnified
party as a result of such Losses, in such proportion as is appropriate to
reflect the relative fault of the indemnifying party, on the one hand, and such
indemnified party, on the other hand, in connection with the actions,
statements or omissions that resulted in such Losses as well as any other
relevant equitable considerations. Where the indemnified party is an
underwriter participating in the distribution of Registrable Securities,
however, each indemnifying party, and, in addition, if the indemnifying party
is a Holder, Quintiles, shall have an obligation to contribute to the amount
paid or payable by such indemnified part as the result of such Losses in such
proportion as is appropriate to reflect not only (i) the relative fault of
Quintiles, the Holders and the underwriters in connection with the actions,
statements or omissions that resulted in such Losses, as well as any other
relevant equitable considerations, but also (ii) the relative benefits
received by the Holders on the one hand and the underwriters on the other hand
from the distribution of the Registrable Securities. The relative benefit
derived by the parties shall be determined by reference to, among other things,
the fact that Quintiles entered into this Agreement to induce the Holders to
engage in the transaction in which the Registrable Securities were acquired.
The relative benefits received by the Holders on the one hand and the
underwriters on the other shall be deemed to be in the same proportion as the
total net proceeds from any such offering (before deducting expenses) received
by the Holders bear to the total underwriting discounts or commissions received
by the underwriters. The relative fault of such indemnifying party, on the one
hand, and indemnified party, on the other hand, shall be determined by
reference to, among other things, whether any action in question, including any
untrue or alleged untrue statement of a material fact or omission or alleged
omission to state a material fact, has been taken by, or relates to information
supplied by, such indemnifying party or indemnified party, and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent any such action, statement or omission. The amount paid or payable by
a party as a result of any Losses shall be deemed to include any legal or other
fees or expenses incurred by such party in connection with any Proceeding, to
the extent such party would have been indemnified for such expenses if the
indemnification provided for in Section 7(a) or 7(b) were available to such
party.
The parties hereto agree that it would not be just and
equitable if contribution pursuant to this Section 7(d) were determined by pro
rata allocation or by any other method of allocation that does not take account
of the equitable considerations referred to in the immediately preceding
paragraph. Notwithstanding the provisions of this Section 7(d), an
indemnifying party that is a selling Holder of Registrable Securities shall not
be required to contribute any amount in excess of the amount by which the total
price at which the Registrable
-22-
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Securities sold by such indemnifying party and distributed to the public were
offered to the public (net of any underwriting discounts and commissions and
expenses) exceeds the amount of any damages that such indemnifying party has
otherwise been required to pay or has paid by reason of such untrue or alleged
untrue statement or omission or alleged omission. No Person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any Person who was not
guilty of such fraudulent misrepresentation.
(e) Remedies Cumulative. The indemnity, contribution and
expense reimbursement obligations under this Section 7 shall be in addition to
any liability each indemnifying person may otherwise have and shall remain
operative and in full force and effect regardless of any investigation made by
or on behalf of any indemnified party.
(f) Underwriting Agreement Controls. In the event of any
conflict between the indemnification and contribution terms as herein set forth
and as set forth in any underwriting agreement entered pursuant hereto, the
underwriting agreement shall control.
SECTION 8. UNDERWRITTEN REGISTRATION.
No Holder of Registrable Securities may participate in any
underwritten registration hereunder unless such Holder (i) agrees to sell such
Holder's Registrable Securities on the basis provided in any underwriting
arrangements approved by the Holders of a majority of Registrable Securities
included in such offering, and (ii) completes and executes all questionnaires,
powers of attorney, indemnities, underwriting agreements, custodial or escrow
agreements and other documents required under the terms of such underwriting
arrangements.
SECTION 9. UNREGISTERED OFFERINGS.
The parties hereto hereby agree that, in the event that
Quintiles or one or more Holders propose to make an underwritten Public
Offering of shares of Common Stock (i) that is exempt from, or not subject to,
the registration requirements of the Securities Act pursuant to Regulation S
(or any successor or similar regulation) thereunder and (ii) with respect to
which the Holder or Holders proposing such underwritten offering request the
cooperation and participation of Quintiles or the management of Quintiles in
performing due diligence and marketing such offering to potential investors,
the relevant notice provisions of Section 2.3 or 2.4 will state that the
offering is proposed to be made on an unregistered basis pursuant to Regulation
S. In that event, the parties agree to proceed with such an offering on an
unregistered basis pursuant to Regulation S in good faith as and to the extent
provided herein with respect to a registered offering and that the provisions
of this Agreement will apply mutatis mutandis to such unregistered offering,
including, without limitation, provisions relating to Joining Notices,
Quintiles's ability to delay an offering, allocations of securities included in
an
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26
offering, Quintiles's obligations with respect to an offering (including
indemnification provisions and procedures), selection of underwriters,
hold-back agreements, expenses associated with an offering and representations
and warranties.
SECTION 10. PRIORITY OF HOLDERS.
The following conditions shall apply (subject to waiver by the
Required Holders); Quintiles shall use reasonable efforts to cause Xx. Xxxxxx
X. Xxxxxxxx (i) for a period of two years from and after the date of this
Agreement, not to sell or otherwise transfer shares other than (A) to a private
transferee which agrees to be bound by these provisions or (B) to the public in
an amount during any three month period not to exceed one-half of one percent (
1/2%) of the then outstanding shares of Quintiles Common Stock, and in the
manner specified in Rule 144(f) of the Regulations, regardless of the
applicability of such rule to a proposed transfer and (ii) until the end of the
Demand Period if requested by the managing underwriter or underwriters in an
underwritten offering, not to effect any public sale or distribution of any
securities of Quintiles being registered, or any similar security of Quintiles,
or any securities convertible or exchangeable or exercisable for such
securities including sales pursuant to Rule 144 (except in each case as part of
such underwritten offering), during the period beginning 30 days prior to, and
ending 120 days after, the closing date of each underwritten offering made
pursuant to such Registration Statement, to the extent timely notified in
writing by Quintiles or by the managing underwriter of such underwritten
offering.
SECTION 11. MISCELLANEOUS.
(a) Remedies. In the event of breach by any party of any
of its obligations under this Agreement, the other parties, in addition to
being entitled to exercise all rights provided herein or granted by law,
including recovery of damages, will be entitled to specific performance of its
rights under this Agreement. Quintiles and each Holder agrees that monetary
damages would not be adequate compensation for any loss incurred by reason of a
breach by Quintiles or such Holder, as the case may be, of any of the
provisions of this Agreement and hereby further agrees that, in the event of
any action for specific performance in respect of such breach, Quintiles or
such Holder, as the case may be, shall waive the defense that a remedy at law
would be adequate. No failure or delay on the part of Quintiles or any Holder
in exercising any right, power or remedy hereunder shall operate as a waiver
thereof; nor shall any single or partial exercise of any such right, power or
remedy preclude any other or further exercise thereof or the exercise of any
other right, power or remedy.
(b) Amendments and Waivers. The provisions of this
Agreement, including the provisions of this sentence, may not be amended,
modified or supplemented, and waivers or consents to departures from the
provisions hereof may not be given, unless Quintiles has obtained the written
consent of Holders of at least 90% of the then outstanding Registrable
Securities. Notwithstanding the foregoing, a waiver or consent to depart from
the provisions hereof with respect to a matter that relates exclusively to the
rights of Holders of Registrable
-24-
27
Securities whose securities are being sold pursuant to a Registration Statement
and that does not directly or indirectly affect, impair, limit or compromise
the rights of other Holders of Registrable Securities may be given by Holders
of at least a majority of the Registrable Securities being sold by Holders
pursuant to such Registration Statement; provided, however, that the
provisions of this sentence may not be amended, modified or supplemented except
in accordance with the provisions of the immediately preceding sentence.
(c) Notices. All notices and other communications
hereunder shall be in writing and shall be deemed given if delivered
personally, by telecopier (receipt of which is confirmed) or mailed by
registered or certified mail (return receipt requested) to the parties at the
following addresses (or at such other address for a party as shall be specified
by like notice):
if to Quintiles, to:
Quintiles Transnational Corp.
0000 Xxxxxxxxxx Xxxxx, Xxxxxxxxxx Xxxxxxxx, Xxxxx 000
Xxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxx, Esq.
with a copy to its counsel,:
Smith, Anderson, Blount, Dorsett, Xxxxxxxx &
Xxxxxxxx, L.L.P.
Xxxx Xxxxxx Xxx 0000
Xxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Attention: Xxxxxx X. Xxxxx, Esq.
If to Holders, at the addresses listed on Annex A hereto.
with a copy to:
Xxxxxxxx & Xxxxxxxx
0x Xxxxxxxxxx Xxxx
Xxxxxx XX0X 0XX, Xxxxxxx
Telecopy: 00-000-000-0000
Telephone: 00-000-000-0000
Attention: Xxxxx X. Xxxxxx
(d) Interpretation. When a reference is made in this
Agreement to a Section, such reference shall be to a Section of this Agreement
unless otherwise indicated. The headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
-25-
28
(e) Counterparts. This Agreement may be executed in two
or more counterparts, all of which shall be considered one and the same
agreement and shall become effective when two or more counterparts have been
signed by each of the parties and delivered to the other parties, it being
understood that all parties need not sign the same counterpart.
(f) Entire Agreement; No Third Party Beneficiaries. This
Agreement (including the documents and the instruments referred to herein) (i)
constitutes the entire agreement and supersedes all prior agreements and
understandings, both written and oral, among the parties with respect to the
subject matter hereof, and (ii) except as contemplated by the definition of
"Holders" in Section 1 hereof, is not intended to confer upon any Person other
than the parties hereto any rights or remedies hereunder.
(G) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, USA, WITHOUT
REGARD TO PRINCIPLES OF CONFLICTS OF LAW.
(h) Severability. Wherever possible, each provision
hereof shall be interpreted in such a manner as to be valid, legal and
enforceable under applicable law, but in case any one or more of the provisions
contained herein shall, for any reason, be held to be invalid, illegal or
unenforceable in any respect, such provision shall be ineffective to the
extent, but only to the extent, of such invalidity, illegality or
unenforceability without invalidating or rendering unenforceable the remainder
of this Agreement, unless such a construction would be unreasonable or
materially impair the rights or any party hereto.
(i) Assignment. Neither this Agreement nor any of the
rights, interests or obligations hereunder shall be assigned by any of the
parties hereto (whether by operation of law or otherwise) without prior written
consent of the other parties, except as may otherwise occur by operation of the
definition of "Holders" in Section 1 hereof or to another Holder who, by such
assignment, agrees to be bound by the restrictions set forth herein. Subject
to the preceding sentence, this Agreement will be binding upon, inure to the
benefit of and be enforceable by the parties hereto and their respective
successors and assigns.
(j) Attorney's Fees. As between parties to this
Agreement, in any action or proceeding brought to enforce any provision of this
Agreement, or where any provision hereof is validly asserted as a defense, the
successful party shall be entitled to recover reasonable attorney's fees in
addition to its costs and expenses and any other available remedy.
(k) Use of Terms. This Agreement contemplates the filing
of Registration Statements under the Securities Act on numerous occasions
involving various offers of securities. In connection with such Registration
Statements, there may be identified therein one or more underwriters through
which securities are to be offered on behalf of Quintiles or one or more of the
Holders, or both, pursuant to either a "firm-commitment" or "best-efforts"
arrangement, and, in the case where there is more than one underwriter, one or
more of the underwriters may
-26-
29
be designated as the "manager" or "representative" or the "co-managers" or
"representatives" of the several underwriters. Accordingly, all references
herein to an "underwriter" or "underwriters" are intended to refer to a
"principal underwriter" (as defined in Rule 405 of the Regulations) and to
provide for those transactions in which securities may be offered by or through
one or more underwriters, and not to imply that any of the transactions
contemplated hereby is conditioned in any manner whatsoever on the
participation therein by one or more underwriters on behalf of any party.
Nothing contained herein relating to Quintiles's obligation to enter into an
underwriting agreement at any time or from time to time in the future shall
impair, alter, restrict or otherwise affect in any manner whatsoever the duties
of the Board of Directors of Quintiles under applicable law in approving the
form, terms and provisions thereof.
IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date first written above.
QUINTILES TRANSNATIONAL CORP.
By: /s/ Xxxxxx X. Xxxxxxxx
------------------------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Chief Financial Officer, Vice President Finance
/s/ Xxxxxx Xxxxxxx
------------------------------------------------------
XXXXXX XXXXXXX XXXXX
/s/ Xxxx Xxxxx, as Attorney
------------------------------------------------------
XXXXXX XXXXXXX
/s/ Xxxxxx Xxxxx /s/ Xxxx Xxxxx, as Attorney
------------------------------------------------------
TRUSTEES OF THE XXXXXX XXXXX
CHILDREN'S SETTLEMENT NO.1
/s/ Xxxxxx Xxxxx /s/ Xxxx Xxxxx, as Attorney
------------------------------------------------------
TRUSTEES OF THE XXXXXX XXXXX
CHILDREN'S SETTLEMENT XX.0
-00-
00
/x/ Xxxxx Xxxxxxxxx, as Attorney
----------------------------------
HSBC PRIVATE EQUITY INVESTMENTS
LIMITED
/s/ Xxxxx Xxxxxxxxx, as Attorney
----------------------------------
LLOYDS DEVELOPMENT CAPITAL LIMITED
/s/ Xxxxx Xxxxxxxxx, as Attorney
----------------------------------
MSS NOMINEES LIMITED
(ACCOUNT 758170)
/s/ Xxxxx Xxxxxxxxx, as Attorney
----------------------------------
MSS NOMINEES LIMITED
(ACCOUNT 758979)
/s/ Xxxxx Xxxxxxxxx, as Attorney
----------------------------------
MSS NOMINEES LIMITED
(ACCOUNT 757549)
/s/ Xxxxx Xxxxxxxxx, as Attorney
----------------------------------
MSS NOMINEES LIMITED
(ACCOUNT 778392)
/s/ Xxxxx Xxxxxxxxx, as Attorney
----------------------------------
GENERAL ACCIDENT EXECUTOR AND
TRUSTEE COMPANY LIMITED
(ACCOUNT H715)
/s/ Xxxxx Xxxxxxxxx, as Attorney
----------------------------------
GENERAL ACCIDENT EXECUTOR AND
TRUSTEE COMPANY LIMITED
(ACCOUNT H716)
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31
*
-------------------------
XXXXX XXXX XXXXXXXXX
*
-------------------------
XXXXXX XXXXXX
*
-------------------------
XXXXX XXXXXXX WHITE
*
-------------------------
XXXXX XXXXXX FLEET
*
-------------------------
XXXXX XXXXXX XXXXXX
*
-------------------------
XXXXXXXX XXXXXXX XXXXX
*
-------------------------
XXXX X. XXXXX
*
-------------------------
XXXXX XXXXX
*
-------------------------
XXXXXXXX XXXX McCOOKE
*
-------------------------
XXXXXXX X. XXXXX-XXXXXXXX
-29-
32
*
----------------------------------------
XXXX XXXXX AND
XXXXXXX XXXX XXXXX, AS TRUSTEES OF
THE TRUST CREATED BY XXXX XXXXX AND
DATED OCTOBER 4, 1996
*
----------------------------------------
XXXX XXXXX AND
XXXXXXX XXXX XXXXX, AS TRUSTEES OF
THE NO.2 TRUST CREATED BY XXXX XXXXX
AND DATED OCTOBER 4, 1996
*
----------------------------------------
XXXXXXXX X. McCOOKE AND
XXXXX McCOOKE, AS TRUSTEES OF THE
NO.1 TRUST CREATED BY XXXXXXXX XXXX
McCOOKE AND DATED OCTOBER 4, 1996
*
----------------------------------------
XXXXXXXX X. McCOOKE AND
XXXXX McCOOKE, AS TRUSTEES OF THE
NO.2 TRUST CREATED BY XXXXXXXX XXXX
McCOOKE AND DATED OCTOBER 4, 1996
*
----------------------------------------
XXXXXXXX XXXXXX AND
XXX. XXXXX XXX XXXXXX, AS TRUSTEES OF
THE TRUST CREATED BY XXXXXXXX
XXXXXXX XXXXXX AND DATED OCTOBER 4, 1996
-30-
33
*
-------------------------------------
XXXXXX XXXXXX AND
XXXX XXX XXXXXXX XXXXXX, AS
TRUSTEES OF THE TRUST CREATED BY
XXXXXX XXXXXX AND DATED OCTOBER 4,
1996
*
-------------------------------------
XXXXX XXXXX AND
XXXXX XXXXX, AS TRUSTEES OF THE TRUST
CREATED BY XXXXX XXXXX AND DATED
OCTOBER 4, 1996
*
-------------------------------------
XXXXXXXXXXX X. XXXXXX AND
XXX. XXXXXX XXXXXX, AS TRUSTEES OF
THE TRUST CREATED BY XXXXXXXXXXX
X. XXXXXX AND DATED OCTOBER 4, 1996
* /s/ Xxxx Xxxxx
----------------------------------
XXXX XXXXX
ATTORNEY-IN-FACT
-31-
