1
DRAFT 10/21/96
11:15pm
1,275,000 Shares(1)
PAREXEL INTERNATIONAL CORPORATION
Common Stock
UNDERWRITING AGREEMENT
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October , 1996
XXXXX XXXXXX INC.
XXXXXXX XXXXX COMPANY, L.L.C.
XXXXXX BROTHERS INC.
XXXXX, XXXXXXXX & XXXX, INC.
As Representatives of the Several Underwriters
c/o XXXXX XXXXXX INC.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
PAREXEL International Corporation, a Massachusetts corporation (the
"Company"), proposes to issue and sell an aggregate of 1,066,900 shares of its
common stock, $0.01 par value per share, to the several Underwriters named in
Schedule II hereto (the "Underwriters") and the persons named in Schedule I
hereto (the "Selling Stockholders") propose to sell to the several Underwriters
an aggregate of 208,100 shares of common stock of the Company. The Company and
the Selling Stockholders are hereinafter sometimes referred to as the "Sellers".
The Company's common stock, $0.01 par value, is hereinafter referred to as the
"Common Stock" and the 1,275,000 shares of Common Stock to be issued and sold to
the Underwriters by the Company and the Selling Stockholders are hereinafter
referred to as the "Firm Shares". The Company also proposes to sell to the
Underwriters, upon the terms and conditions set forth in Section 2 hereof, up to
an additional 191,250 shares (the "Additional Shares") of Common Stock. The Firm
Shares and the Additional Shares are hereinafter collectively referred to as the
"Shares".
The Company and the Selling Stockholders wish to confirm as follows
their respective agreements with you (the "Representatives") and the other
several Underwriters on whose behalf you are acting, in connection with the
several purchases of the Shares by the Underwriters.
[FN]
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(1) Plus an option to acquire up to 191,250 additional shares to cover
over allotments.
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1. REGISTRATION STATEMENT AND PROSPECTUS. The Company has prepared and
filed with the Securities and Exchange Commission (the "Commission") in
accordance with the provisions of the Securities Act of 1933, as amended, and
the rules and regulations of the Commission thereunder (collectively, the
"Act"), a registration statement on Form S-1 under the Act (the "registration
statement"), including a prospectus subject to completion relating to the
Shares. The term "Registration Statement" as used in this Agreement means the
registration statement (including all financial schedules and exhibits), as
amended at the time it becomes effective, or, if the registration statement
became effective prior to the execution of this Agreement, as supplemented or
amended prior to the execution of this Agreement. If it is contemplated, at the
time this Agreement is executed, that a post-effective amendment to the
registration statement will be filed and must be declared effective before the
offering of the Shares may commence, the term "Registration Statement" as used
in this Agreement means the registration statement as amended by said
post-effective amendment. The term "Prospectus" as used in this Agreement means
the prospectus in the form included in the Registration Statement, or, if the
prospectus included in the Registration Statement omits information in reliance
on Rule 430A under the Act and such information is included in a prospectus
filed with the Commission pursuant to Rule 424(b) under the Act, the term
"Prospectus" as used in this Agreement means the prospectus in the form included
in the Registration Statement as supplemented by the addition of the Rule 430A
information contained in the prospectus filed with the Commission pursuant to
Rule 424(b). The term "Prepricing Prospectus" as used in this Agreement means
the prospectus subject to completion in the form included in the registration
statement at the time of the initial filing of the registration statement with
the Commission, and as such prospectus shall have been amended from time to time
prior to the date of the Prospectus.
2. AGREEMENTS TO SELL AND PURCHASE. Subject to such adjustments as you
may determine in order to avoid fractional shares, the Company hereby agrees,
subject to all the terms and conditions set forth herein, to issue and sell to
each Underwriter and, upon the basis of the representations, warranties and
agreements of the Company and the Selling Stockholders herein contained and
subject to all the terms and conditions set forth herein, each Underwriter
agrees, severally and not jointly, to purchase from the Company, at a purchase
price of $[00.00] per Share (the "purchase price per share"), the number of Firm
Shares which bears the same proportion to the aggregate number of Firm Shares to
be issued and sold by the Company as the number of Firm Shares set forth
opposite the name of such Underwriter in Schedule II hereto (or such number of
Firm Shares increased as set forth in Section 12 hereof) bears to the aggregate
number of Firm Shares to be sold by the Company and the Selling Stockholders.
Subject to such adjustments as you may determine in order to avoid
fractional shares, each Selling Stockholder agrees, subject to all the terms and
conditions set forth herein, to sell to each Underwriter and, upon the basis of
the representations, warranties and agreements of the Company and the Selling
Stockholders herein contained and subject to all the terms and conditions set
forth herein, each Underwriter, severally and not jointly, agrees to purchase
from each Selling Stockholder at the purchase price per share that number of
Firm Shares which bears the same proportion to the number of Firm Shares set
forth opposite the name of such Selling Stockholder in Schedule I hereto as the
number of Firm Shares set forth opposite the name of such Underwriter in
Schedule II hereto (or such number of Firm Shares increased as set forth in
Section 12 hereof)
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bears to the aggregate number of Firm Shares to be sold by the Company and the
Selling Stockholders.
The Company also agrees, subject to all the terms and conditions set
forth herein, to sell to the Underwriters, and, upon the basis of the
representations, warranties and agreements of the Company herein contained and
subject to all the terms and conditions set forth herein, the Underwriters shall
have the right to purchase from the Company at the purchase price per share,
pursuant to an option (the "over-allotment option") which may be exercised at
any time and from time to time prior to 9:00 P.M., New York City time, on the
30th day after the date of the Prospectus (or, if such 30th day shall be a
Saturday or Sunday or a holiday, on the next business day thereafter when the
New York Stock Exchange is open for trading), up to an aggregate of 191,250
Additional Shares from the Company. Additional Shares may be purchased only for
the purpose of covering over-allotments made in connection with the offering of
the Firm Shares.
Certificates in transferable form for the Shares which each of the
Selling Stockholders agrees to sell pursuant to this Agreement have been placed
in custody with [ ] (the "Custodian") for delivery under this Agreement
pursuant to a Custody Agreement and Power of Attorney (the "Custody Agreement")
executed by each of the Selling Stockholders appointing and as
agents and attorneys-in-fact (the "Attorneys-in-Fact"). Each Selling Stockholder
agrees that (i) the Shares represented by the certificates held in custody
pursuant to the Custody Agreement are subject to the interests of the
Underwriters, the Company and each other Selling Stockholder, (ii) the
arrangements made by the Selling Stockholders for such custody are, except as
specifically provided in the Custody Agreement, irrevocable, and (iii) the
obligations of the Selling Stockholders hereunder and under the Custody
Agreement shall not be terminated by any act of such Selling Stockholder or by
operation of law, whether by the death or incapacity of any Selling Stockholder
or the occurrence of any other event. If any Selling Stockholder shall die or be
incapacitated or if any other event shall occur before the delivery of the
Shares hereunder, certificates for the Shares of such Selling Stockholder shall
be delivered to the Underwriters by the Attorneys-in-Fact in accordance with the
terms and conditions of this Agreement and the Custody Agreement as if such
death or incapacity or other event had not occurred, regardless of whether or
not the Attorneys-in-Fact or any Underwriter shall have received notice of such
death, incapacity or other event. Each Attorney-in-Fact is authorized, on behalf
of each of the Selling Stockholders, to execute this Agreement and any other
documents necessary or desirable in connection with the sale of the Shares to be
sold hereunder by such Selling Stockholder, to make delivery of the certificates
for such Shares, to receive the proceeds of the sale of such Shares, to give
receipts for such proceeds, to pay therefrom any expenses to be borne by such
Selling Stockholder in connection with the sale and public offering of such
Shares, to distribute the balance thereof to such Selling Stockholder, and to
take such other action as may be necessary or desirable in connection with the
transactions contemplated by this Agreement. Each Attorney-in-Fact agrees to
perform his duties under the Custody Agreement.
3. TERMS OF PUBLIC OFFERING. The Sellers have been advised by you that
the Underwriters propose to make a public offering of their respective portions
of the Shares as soon
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after the Registration Statement and this Agreement have become effective as in
your judgment is advisable and initially to offer the Shares upon the terms set
forth in the Prospectus.
4. DELIVERY OF THE SHARES AND PAYMENT THEREFOR. Delivery to the
Underwriters of and payment for the Firm Shares shall be made at the office of
Xxxxx Xxxxxx Inc., 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, XX 00000, at 10:00 A.M., New
York City time, on October __, 1996 (the "Closing Date"). The place of closing
for the Firm Shares and the Closing Date may be varied by agreement among you,
the Company and the Attorneys-in-Fact.
Delivery to the Underwriters of and payment for any Additional Shares
to be purchased by the Underwriters shall be made at the aforementioned office
of Xxxxx Xxxxxx Inc. at such time on such date (the "Option Closing Date"),
which may be the same as the Closing Date but shall in no event be earlier than
the Closing Date nor earlier than two nor later than ten business days after the
giving of the notice hereinafter referred to, as shall be specified in a written
notice from you on behalf of the Underwriters to the Company of the
Underwriters' determination to purchase a number, specified in such notice, of
Additional Shares. The place of closing for any Additional Shares and the Option
Closing Date for such Shares may be varied by agreement among you and the
Company.
Certificates for the Firm Shares and for any Additional Shares to be
purchased hereunder shall be registered in such names and in such denominations
as you shall request prior to 9:30 A.M., New York City time, on the second
business day preceding the Closing Date or any Option Closing Date, as the case
may be. Such certificates shall be made available to you in New York City for
inspection and packaging not later than 9:30 A.M., New York City time, on the
business day next preceding the Closing Date or the Option Closing Date, as the
case may be. The certificates evidencing the Firm Shares and any Additional
Shares to be purchased hereunder shall be delivered to you on the Closing Date
or the Option Closing Date, as the case may be, against payment of the purchase
price therefor by certified or official bank check or checks payable in New York
Clearing House (next day) funds to the order of the Company and the
Attorneys-in-Fact.
5. AGREEMENTS OF THE COMPANY. The Company agrees with the several
Underwriters as follows:
(a) If, at the time this Agreement is executed and delivered,
it is necessary for the Registration Statement or a post-effective amendment
thereto to be declared effective before the offering of the Shares may commence,
the Company will endeavor to cause the Registration Statement or such
post-effective amendment to become effective as soon as possible and will advise
you promptly and, if requested by you, will confirm such advice in writing, when
the Registration Statement or such post-effective amendment has become
effective.
(b) The Company will advise you promptly and, if requested by
you, will confirm such advice in writing: (i) of any request by the Commission
for amendment of or a supplement to the Registration Statement, any Prepricing
Prospectus or the Prospectus or for
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additional information; (ii) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or of the suspension
of qualification of the Shares for offering or sale in any jurisdiction or the
initiation of any proceeding for such purpose; and (iii) within the period of
time referred to in paragraph (f) below, of any change in the Company's
condition (financial or other), business, prospects, properties, net worth or
results of operations, or of the happening of any event, which makes any
statement of a material fact made in the Registration Statement or the
Prospectus (as then amended or supplemented) untrue or which requires the making
of any additions to or changes in the Registration Statement or the Prospectus
(as then amended or supplemented) in order to state a material fact required by
the Act or the regulations thereunder to be stated therein or necessary in order
to make the statements therein not misleading, or of the necessity to amend or
supplement the Prospectus (as then amended or supplemented) to comply with the
Act or any other law. If at any time the Commission shall issue any stop order
suspending the effectiveness of the Registration Statement, the Company will
make every reasonable effort to obtain the withdrawal of such order at the
earliest possible time.
(c) The Company will furnish to you, without charge (i) five
signed copies of the registration statement as originally filed with the
Commission and of each amendment thereto, including financial statements and all
exhibits to the registration statement, (ii) such number of conformed copies of
the registration statement as originally filed and of each amendment thereto,
but without exhibits, as you may request, (iii) such number of copies of the
Incorporated Documents, without exhibits, as you may request, and (iv) five
copies of the exhibits to any documents incorporated by reference in the
Registration Statement, any Prepricing Prospectus, the Prospectus, or any
amendment or supplement thereto (the "Incorporated Documents").
(d) The Company will not file any amendment to the Registration
Statement or make any amendment or supplement to the Prospectus or, prior to the
end of the period of time referred to in the first sentence in subsection (f)
below, file any document which, upon filing becomes an Incorporated Document, of
which you shall not previously have been advised or to which, after you shall
have received a copy of the document proposed to be filed, you shall reasonably
object.
(e) Prior to the execution and delivery of this Agreement, the
Company has delivered to you, without charge, in such quantities as you have
requested, copies of each form of the Prepricing Prospectus. The Company
consents to the use, in accordance with the provisions of the Act and with the
securities or Blue Sky laws of the jurisdictions in which the Shares are offered
by the several Underwriters and by dealers, prior to the date of the Prospectus,
of each Prepricing Prospectus so furnished by the Company.
(f) As soon after the execution and delivery of this Agreement
as possible and thereafter from time to time for such period as in the opinion
of counsel for the Underwriters a prospectus is required by the Act to be
delivered in connection with sales by any Underwriter or dealer, the Company
will expeditiously deliver to each Underwriter and each dealer, without charge,
as many copies of the Prospectus (and of any amendment or supplement thereto) as
you may request. The Company consents to the use of the Prospectus (and of any
amendment or
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supplement thereto) in accordance with the provisions of the Act and with the
securities or Blue Sky laws of the jurisdictions in which the Shares are offered
by the several Underwriters and by all dealers to whom Shares may be sold, both
in connection with the offering and sale of the Shares and for such period of
time thereafter as the Prospectus is required by the Act to be delivered in
connection with sales by any Underwriter or dealer. If during such period of
time any event shall occur that in the judgment of the Company or in the opinion
of counsel for the Underwriters is required to be set forth in the Prospectus
(as then amended or supplemented) or should be set forth therein in order to
make the statements therein, in the light of the circumstances under which they
were made, not misleading, or if it is necessary to supplement or amend the
Prospectus (or to file under the Exchange Act any document which, upon filing,
becomes an Incorporated Document) in order to comply with the Act or any other
law, the Company will forthwith prepare and, subject to the provisions of
paragraph (d) above, file with the Commission an appropriate supplement or
amendment thereto (or to such document), and will expeditiously furnish to the
Underwriters and dealers a reasonable number of copies thereof. In the event
that the Company and you, as Representatives of the several Underwriters, agree
that the Prospectus should be amended or supplemented, the Company, if requested
by you, will promptly issue a press release announcing or disclosing the matters
to be covered by the proposed amendment or supplement.
(g) The Company will cooperate with you and with counsel for
the Underwriters in connection with the registration or qualification of the
Shares for offering and sale by the several Underwriters and by dealers under
the securities or Blue Sky laws of such jurisdictions as you may designate and
will file such consents to service of process or other documents necessary or
appropriate in order to effect such registration or qualification; provided that
in no event shall the Company be obligated to qualify to do business in any
jurisdiction where it is not now so qualified or to take any action which would
subject it to service of process in suits, other than those arising out of the
offering or sale of the Shares, in any jurisdiction where it is not now so
subject.
(h) The Company will make generally available to its security
holders a consolidated earnings statement, which need not be audited, covering a
twelve-month period commencing after the effective date of the Registration
Statement and ending not later than 15 months thereafter, as soon as practicable
after the end of such period, which consolidated earnings statement shall
satisfy the provisions of Section 11(a) of the Act.
(i) During the period of five years hereafter, the Company
will furnish to you (i) as soon as available, a copy of each report of the
Company mailed to stockholders or filed with the Commission, and (ii) from time
to time such other information concerning the Company as you may request.
(j) If this Agreement shall terminate or shall be terminated
after execution pursuant to any provisions hereof (otherwise than pursuant to
the second paragraph of Section 12 hereof or by notice given by you terminating
this Agreement pursuant to Section 12 or Section 13 hereof) or if this Agreement
shall be terminated by the Underwriters because of any failure or
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refusal on the part of the Company or the Selling Stockholders to comply with
the terms or fulfill any of the conditions of this Agreement, the Company agrees
to reimburse the Representatives for all out-of-pocket expenses (including fees
and expenses of counsel for the Underwriters) incurred by you in connection
herewith.
(k) The Company will apply the net proceeds from the sale of
the Shares to be sold by it hereunder substantially in accordance with the
description set forth in the Prospectus.
(l) If Rule 430A of the Act is employed, the Company will
timely file the Prospectus pursuant to Rule 424(b) under the Act and will advise
you of the time and manner of such filing.
(m) The Company agrees that without the prior written consent
of Xxxxx Xxxxxx Inc. the Company will not (and, except as may be disclosed in
the Prospectus, will not announce or disclose any intention to) sell, offer to
sell, solicit an offer to buy, contract to sell, grant any option to purchase,
or otherwise transfer or dispose of, any shares of Common Stock, or any
securities convertible into or exercisable or exchangable for Common Stock, for
a period of 90 days after the date of the final Prospectus relating to the
offering of the Shares to the public by the Underwriters. Prior to the
expiration of such period, the undersigned will not announce or disclose any
intention to do anything after the expiration of such period which the
undersigned is prohibited, as provided in the preceding sentence, from doing
during such period.
(n) The Company has furnished or will furnish to you "lock-up"
letters, in form and substance satisfactory to you, signed by each of its
current officers and directors and each of its stockholders designated by you.
(o) Except as stated in this Agreement and in the Prepricing
Prospectus and Prospectus, the Company has not taken, nor will it take, directly
or indirectly, any action designed to or that might reasonably be expected to
cause or result in stabilization or manipulation of the price of the Common
Stock to facilitate the sale or resale of the Shares.
(p) The Company will use its best efforts to have the shares
of Common Stock which it agrees to sell under this Agreement listed, subject to
notice of issuance, on the Nasdaq National Market on or before the Closing Date.
6. AGREEMENTS OF THE SELLING STOCKHOLDERS. Each of the Selling
Stockholders agrees with the several Underwriters as follows:
(a) Such Selling Stockholder will cooperate to the extent
necessary to cause the registration statement or any post-effective amendment
thereto to become effective at the earliest possible time.
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(b) Such Selling Stockholder will pay all Federal and other
taxes, if any on the transfer or sale of the Shares being sold by the Selling
Stockholder to the Underwriters.
(c) Such Selling Stockholder will do or perform all things
required to be done or performed by the Selling Stockholder prior to the Closing
Date or any Option Closing Date, as the case may be, to satisfy all conditions
precedent to the delivery of the Shares pursuant to this Agreement.
(d) Such Selling Stockholder has executed or will execute a
"lock-up" letter as provided in Section 5(n) above and will not sell, contract
to sell or otherwise dispose of any Common Stock, except for the sale of Shares
to the Underwriters pursuant to this Agreement, prior to the expiration of 180
days after the date of the Prospectus, without the prior written consent of
Xxxxx Xxxxxx Inc..
(e) Except as stated in this Agreement and in the Prepricing
Prospectus and the Prospectus, such Selling Stockholder will not take, directly
or indirectly, any action designed to or that might reasonably be expected to
cause or result in stabilization or manipulation of the price of the Common
Stock to facilitate the sale or resale of the Shares.
(f) Such Selling Stockholder will advise you promptly, and if
requested by you, will confirm such advice in writing, within the period of time
referred to in Section 5(f) hereof, of any change in the Company's condition
(financial or other), business, prospects, properties, net worth or results of
operations or of any change in information relating to such Selling Stockholder
or the Company or any new information relating to the Company or relating to any
matter stated in the Prospectus or any amendment or supplement thereto which
comes to the attention of such Selling Stockholder that suggests that any
statement made in the Registration Statement or the Prospectus (as then amended
or supplemented, if amended or supplemented) is or may be untrue in any material
respect or that the Registration Statement or Prospectus (as then amended or
supplemented, if amended or supplemented) omits or may omit to state a material
fact or a fact necessary to be stated therein in order to make the statements
therein not misleading in any material respect, or of the necessity to amend or
supplement the Prospectus (as then amended or supplemented, if amended or
supplemented) in order to comply with the Act or any other law.
7. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company
represents and warrants to each Underwriter that:
(a) A registration statement on Form S-1 (File No.
333-_______) and a related preliminary prospectus with respect to the Shares
have been prepared and filed with the Commission by the Company in conformity
with the requirements of the Act, and the Company has so prepared and has filed
such amendments thereto, if any, and such amended preliminary prospectuses as
may have been required to the date hereof and will file such additional
amendments thereto and such amended prospectuses as may hereafter be required.
There have
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been or will promptly be delivered to you three signed copies of such
registration statement and amendments, three copies of each exhibit filed
therewith, and conformed copies of such registration statement and amendments
(but without exhibits) and of the related preliminary prospectus or prospectuses
and final forms of prospectus for each of the Underwriters.
Such registration statement (as amended, if applicable) at the time
it becomes effective and the prospectus constituting a part thereof (including
the information, if any, deemed to be part thereof pursuant to Rule 430A(b)
and/or Rule 434), as from time to time amended or supplemented, are hereinafter
referred to as the "Registration Statement," and the "Prospectus," respectively,
except that if any revised prospectus shall be provided to the Underwriters by
the Company for use in connection with the offering of the Shares which differs
from the Prospectus on file at the Commission at the time the Registration
Statement became or becomes effective (whether or not such revised prospectus is
required to be filed by the Company pursuant to Rule 424(b)), the term
Prospectus shall refer to such revised prospectus from and after the time it was
provided to the Underwriters for such use. If the Company elects to rely on Rule
434 of the Act, all references to "Prospectus" shall be deemed to include,
without limitation, the form of prospectus and the term sheet, taken together,
provided to the Underwriters by the Company in accordance with Rule 434 of the
Act ("Rule 434 Prospectus"). Any registration statement (including any amendment
or supplement thereto or information which is deemed part thereof) filed by the
Company under Rule 462(b) ("Rule 462(b) Registration Statement") shall be deemed
to be part of the "Registration Statement" as defined herein, and any prospectus
(including any amendment or supplement thereto or information which is deemed
part thereof) included in such registration statement shall be deemed to be part
of the "Prospectus", as defined herein, as appropriate. The Securities Exchange
Act of 1934, as amended, and the rules and regulations of the Commission
thereunder are hereinafter collectively referred to as the "Exchange Act."
(b) The Commission has not issued any order preventing or
suspending the use of any preliminary prospectus, and each preliminary
prospectus has conformed in all material respects with the requirements of the
Act and, as of its date, has not included any untrue statement of a material
fact or omitted to state a material fact necessary to make the statements
therein not misleading; and when the Registration Statement became or becomes
effective, and at all times subsequent thereto, up to the First Closing Date or
the Second Closing Date hereinafter defined, as the case may be, the
Registration Statement, including the information deemed to be part of the
Registration Statement at the time of effectiveness pursuant to Rule 430A(b), if
applicable, and the Prospectus and any amendments or supplements thereto,
contained or will contain all statements that are required to be stated therein
in accordance with the Act and in all material respects conformed or will in all
material respects conform to the requirements of the Act, and neither the
Registration Statement nor the Prospectus, nor any amendment or supplement
thereto, included or will include any untrue statement of a material fact or
omitted or will omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading; provided, however, that
the Company makes no representation or warranty as to information contained in
or omitted from any preliminary prospectus, the Registration Statement, the
Prospectus or any such amendment or supplement in reliance upon and in
conformity with
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written information furnished to the Company by or on behalf of any Underwriter
through the Representatives specifically for use in the preparation thereof.
(c) The Company and its subsidiaries have been duly incorporated
and are validly existing as corporations in good standing under the laws of
their respective places of incorporation, with corporate power and authority to
own their properties and conduct their business as described in the Prospectus;
the Company and each of its subsidiaries are duly qualified to do business as
foreign corporations under the corporation law of, and are in good standing as
such in, each jurisdiction in which they own or lease substantial properties,
have an office, or in which substantial business is conducted and such
qualification is required, except in any such case where the failure to so
qualify or be in good standing would not have a material adverse effect upon the
Company and its subsidiaries taken as a whole; and no proceeding of which the
Company has knowledge has been instituted in any such jurisdiction, revoking,
limiting or curtailing, or seeking to revoke, limit or curtail, such power and
authority or qualification. Each of the Company and its subsidiaries are in
possession of and operating in compliance with all authorizations, licenses,
certificates, consents, orders and permits from state, federal and other
regulatory authorities which are material to the conduct of its business, all of
which are valid and in full force and effect.
(d) Except as disclosed in the Registration Statement, the
Company owns directly or indirectly 100 percent of the issued and outstanding
capital stock of each of its subsidiaries, free and clear of any claims, liens,
encumbrances or security interests and all of such capital stock has been duly
authorized and validly issued and is fully paid and nonassessable. The Company
does not own or control, directly or indirectly, any corporation, association or
other entity other than Xxxxxxx International Corporation, a Massachusetts
corporation; PAREXEL International Holding Corporation, a Delaware corporation;
PAREXEL International Securities Corporation, a Massachusetts corporation;
PAREXEL International, Inc., a Delaware corporation; PAREXEL GmbH Independent
Pharmaceutical Research Organization, a corporation organized under the laws of
Germany; PAREXEL Unternehens beteilung GmbH, a corporation organized under the
laws of Germany; PAREXEL International Limited, a corporation organized under
the laws of the United Kingdom; AFB CLINLAB Laborleistungs -
Organisationgesellschaft mbH, a corporation organized under the laws of Germany;
PAREXEL, International, a corporation organized under the laws of France;
PAREXEL International SRL, a corporation organized under the laws of Italy; and
PAREXEL International Pty Ltd, a corporation organized under the laws of
Australia.
(e) The issued and outstanding shares of capital stock of the
Company as set forth in the Prospectus have been duly authorized and validly
issued, are fully paid and nonassessable, and conform to the description thereof
contained in the Prospectus (which description correctly states the
capitalization of the Company).
(f) The Shares to be sold by the Company have been duly
authorized and when issued, delivered and paid for pursuant to this Agreement,
will be validly issued, fully paid and nonassessable, and will conform to the
description thereof contained in the Prospectus (which
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description correctly states the capitalization of the Company). No preemptive
right, co-sale right, registration right, right of first refusal or other
similar right of shareholders exists with respect to any of the Common Stock or
Additional Shares or the issuance and sale thereof other than those that have
been expressly waived prior to the date hereof and those that will automatically
expire upon the consummation of the transactions contemplated on the Closing
Date. No further approval or authorization of any shareholder, the Board of
Directors or others is required for the issuance and sale or transfer of the
Shares except as may be required under the Act, the Exchange Act or under state
or other securities or blue sky laws.
(g) The Company has full legal right, power and authority to
enter into this Agreement and perform the transactions contemplated hereby. The
making and performance by the Company of this Agreement has been duly authorized
by all necessary corporate action and will not violate any provision of the
charter or bylaws of the Company or any of its Subsidiaries and will not result
in the breach of any provision of any material agreement, franchise, license,
indenture, mortgage, deed of trust, or other instrument to which the Company or
any subsidiary is a party or by which the Company, any subsidiary or the
property of any of them may be bound or affected, or any material order, rule or
regulation applicable to the Company or any subsidiary of any court or
regulatory body, administrative agency or other governmental body having
jurisdiction over the Company or any subsidiary or any of their respective
properties except in any such case for any violation which would not have a
material adverse effect upon the Company and its subsidiaries taken as a whole.
No consent, approval, authorization or other order of any court, regulatory
body, administrative agency or other governmental body is required for the
execution and delivery of this Agreement or the consummation of the transactions
contemplated herein or therein, except for compliance with the 1933 Act and blue
sky laws applicable to the public offering of the Shares by the several
Underwriters and clearance of such offering with the National Association of
Securities Dealers, Inc. ("NASD"). This Agreement has been duly executed and
delivered by the Company.
(h) The accountants who have expressed their opinions with
respect to certain of the financial statements and schedules included in the
Registration Statement are, to the best of the Company's knowledge, independent
accountants as required by the Act.
(i) The consolidated financial statements and schedules of the
Company included in the Registration Statement (A) present fairly the
consolidated financial position of the Company as of the respective dates of
such financial statements, and the consolidated results of operations and cash
flows of the Company for the respective periods covered thereby, all in
conformity with generally accepted accounting principles consistently applied
throughout the periods involved, except as disclosed in the Prospectus; and (B)
present fairly the information required to be stated in the Registration
Statement. The financial information set forth in the Prospectus under "Selected
Consolidated Financial Data" presents fairly, on the basis stated in the
Prospectus, the information set forth therein. No other financial statement or
schedules are required to be included in the Registration Statement.
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12
(j) Neither the Company nor any subsidiary is in violation of
its charter or in default under any consent decree, or in default with respect
to any material provision of any lease, loan agreement, franchise, license,
permit or other contract obligation to which it is a party; and there does not
exist any state of facts which constitutes an event of default as defined in
such documents or which, with notice or lapse of time or both, would constitute
such an event of default except, in each case, for defaults which neither singly
nor in the aggregate would have a material adverse effect on the Company and its
subsidiaries taken as a whole.
(k) There are no material legal or governmental proceedings
pending, or to the Company's knowledge, threatened to which the Company or any
subsidiary is or may be a party or of which material property owned or leased by
the Company or any subsidiary is or may be subject, or related to environmental
or discrimination matters which are not disclosed in the Prospectus, or which
question the validity of this Agreement or any action taken or to be taken
pursuant hereto or thereto, or might prevent consummation of the transactions
contemplated hereby.
(l) There are no holders of securities of the Company having
rights to registration thereof or preemptive rights to purchase Common Stock
except as disclosed in the Prospectus. Holders of registration rights who are
not Selling Stockholders have waived such rights with respect to the offering
being made by the Prospectus.
(m) The Company and each of its subsidiaries have good and
marketable title to all the properties and assets reflected as owned in the
financial statements hereinabove described (or elsewhere in the Prospectus),
subject to no lien, mortgage, pledge, charge or encumbrance of any kind except
those, if any, reflected in such financial statements (or elsewhere in the
Prospectus) or which are not material to the Company and its subsidiaries taken
as a whole. The Company and each of its subsidiaries hold their respective
leased properties which are material to the Company and its subsidiaries taken
as a whole under valid, enforceable and binding leases except as enforcement may
be limited by applicable bankruptcy, insolvency, reorganization, moratorium or
other similar laws relating to or affecting creditors' rights generally or by
general equitable principles. The agreements to which the Company or one of its
subsidiaries is a party described in the Prospectus are valid agreements,
enforceable by the Company and its subsidiaries (as applicable), except as the
enforcement thereof may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting creditors' rights
generally or by general equitable principles and, to their knowledge, the other
contracting party or parties thereto are not in material breach or material
default under any of such agreements.
(n) The Company has not taken and will not take, directly or
indirectly, any action designed to or which has constituted or which might
reasonably be expected to cause or result, under the Exchange Act or otherwise,
in stabilization or manipulation of the price of any security of the Company to
facilitate the sale or resale of the Shares.
(o) Subsequent to the respective dates as of which information
is given in the Registration Statement and Prospectus, and except as
contemplated by the Prospectus, the
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13
Company and its subsidiaries, taken as a whole, have not incurred any material
liabilities or obligations, direct or contingent, paid or declared a dividend
(except as contemplated by the Registration Statement), nor entered into any
material transactions not in the ordinary course of business and there has not
been any material adverse change in their condition (financial or otherwise) or
results of operations nor any material change in their capital stock, short-term
debt or long-term debt.
(p) There is no material document of a character required to
be described in the Registration Statement or the Prospectus or to be filed as
an exhibit to the Registration Statement which is not described or has not been
filed as required.
(q) The Company, together with its subsidiaries, owns and
possesses all right, title and interest in and to, or has duly licensed from
third parties, all trademarks, copyrights and other proprietary rights ("Trade
Rights") material to the business of the Company and each of its subsidiaries
taken as a whole. Neither the Company nor any of its subsidiaries has received
any notice of infringement, misappropriation or conflict from any third party as
to such material Trade Rights which has not been resolved or disposed of and
neither the Company nor any of its subsidiaries has infringed, misappropriated
or otherwise conflicted with material Trade Rights of any third parties, which
infringement, misappropriation or conflict would have a material adverse effect
upon the Company and its subsidiaries taken as a whole.
(r) The conduct of the business of the Company and each of its
subsidiaries is in compliance in all respects with applicable federal, state,
local and foreign laws and regulations, except where the failure to be in
compliance would not have a material adverse effect upon the Company and its
subsidiaries taken as a whole.
(s) Other than the stock sold in connection with the Company's
initial public offering and second public offering pursuant to registration
statements on Form S-1 (File Nos. 33- 97406 and 333-01180) or pursuant to a
registration statement on Form S-8 (File No. 33-80301), all offers and sales of
the Company's capital stock prior to the date hereof were at all relevant times
exempt from the registration requirements of the Act and were duly registered
with or the subject of an available exemption from the registration requirements
of the applicable state securities or blue sky laws.
(t) The Company has filed all necessary federal and state
income and franchise tax returns and has paid all taxes shown as due thereon,
and there is no tax deficiency that has been, or to the knowledge of the Company
might be, asserted against the Company or any of its properties or assets that
would or could be expected to have a material adverse affect upon the Company
and its subsidiaries taken as a whole. All tax liabilities of the Company and
its subsidiaries are adequately provided for on the books of the Company and its
subsidiaries.
(u) A registration statement relating to the Common Stock has
been declared effective by the Commission pursuant to the Exchange Act and the
Common Stock is duly
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14
registered thereunder. The Shares have been listed on the Nasdaq National Market
subject to notice of issuance or sale of the Shares, as the case may be.
(v) The Company is not, and does not intend to conduct its
business in a manner in which it would become, an "investment company" as
defined in Section 3(a) of the Investment Company Act of 1940, as amended (the
"Investment Company Act").
(w) The Company and its subsidiaries maintain insurance of the
types and in the amounts generally deemed adequate for their respective
businesses and consistent with insurance coverage maintained by similar
companies in similar businesses in similar geographic areas, including but not
limited to, insurance covering real and personal property owned or leased by the
Company or its subsidiaries against theft, damage, destruction, acts of
vandalism and all other risks customarily insured against (including without
limitation errors and omissions), all of which insurance is in full force and
effect.
(x) To the best of the Company's knowledge, no labor
disturbance by the employees of the Company or any of its subsidiaries exists or
is imminent; and the Company is not aware of any existing or imminent labor
disturbance by the employees of any of its principal suppliers that might be
expected to have a material adverse effect on the condition (financial or
otherwise), earnings, operations, business or business prospects of the Company
and its subsidiaries taken as a whole. No collective bargaining agreement exists
with any of the Company's or any of its subsidiaries' employees and, to the
Company's knowledge, no such agreement is imminent.
(y) The Company has not distributed and will not distribute
prior to the Closing Date or any date on which Option Shares are to be
purchased, as the case may be, any offering material in connection with the
offering and sale of the Shares other than the Prospectus, the Registration
Statement and the other materials permitted by the Act.
(z) Neither the Company nor any of its subsidiaries has at any
time during the last five years (i) made any unlawful contribution to any
candidate for foreign office, or failed to disclose fully any contribution in
violation of law, or (ii) made any payment to any federal or state governmental
officer or official, or other person charged with similar public or quasi-public
duties, other than payments required or permitted by the laws of the United
States or any jurisdiction thereof.
(aa) The Company confirms as of the date hereof that it is in
compliance with all provisions of Section 1 of Laws of Florida, Chapter 92-198,
AN ACT RELATING TO DISCLOSURE OF DOING BUSINESS WITH CUBA, and the Company
further agrees that if it commences engaging in business with the government of
Cuba or with any person or affiliate located in Cuba after the date the
Registration Statement becomes or has become effective with the Commission or
with the Florida Department of Banking and Finance (the "Department"), whichever
date is later, or if the information reported in the Prospectus, if any,
concerning the Company's business with Cuba or with any person or affiliate
located in Cuba changes in any material way, the Company will
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15
provide the Department notice of such business or change, as appropriate, in a
form acceptable to the Department.
(bb) The Company has complied with all registration, filing,
and reporting requirements of the Exchange Act and the Nasdaq National Market.
8. REPRESENTATIONS AND WARRANTIES OF THE SELLING STOCKHOLDERS. Each
Selling Stockholder represents and warrants to each Underwriter that:
(a) Subject to the rights of the Custodian under the Custody
Agreement, such Selling Stockholder on the First Closing Date or the Second
Closing Date, as hereinafter defined, as the case may be, will have, valid
marketable title to the Shares proposed to be sold by such Selling Stockholder
hereunder on such date and full right, power and authority to enter into this
Agreement and to sell, assign, transfer and deliver such Shares hereunder, free
and clear of all voting trust arrangements, liens, encumbrances, equities,
claims and community property rights; and upon delivery of and payment for such
Shares hereunder, the Underwriters will acquire valid marketable title thereto,
free and clear of all voting trust arrangements, liens, encumbrances, equities,
claims and community property rights.
(b) Such Selling Stockholder has not taken and will not take,
directly or indirectly, any action designed to or which might be reasonably
expected to cause or result, under the Exchange Act or otherwise, in
stabilization or manipulation of the price of any security of the Company to
facilitate the sale or resale of the Shares.
(c) Such Selling Stockholder has executed and delivered a
Custody Agreement and Power of Attorney (the "Custody Agreement and Power of
Attorney") among the Selling Stockholder, [ ] as custodian (the
"Custodian"), [ ], (the "Agents"), naming the Agents as such
Selling Stockholder's attorneys-in-fact (and, by the execution by any Agent of
this Agreement, such Agent hereby represents and warrants that he has accepted
his appointment as attorney-in-fact by the Selling Stockholders pursuant to the
Custody Agreement and Power of Attorney) for the purpose of entering into and
carrying out this Agreement, and the Custody Agreement and Power of Attorney has
been duly executed by such Selling Stockholder and a copy thereof has been
delivered to you.
(d) Such Selling Stockholder further represents, warrants and
agrees that such Selling Stockholder has deposited in custody, under the Custody
Agreement and Power of Attorney, certificates in negotiable form for the Shares
to be sold hereunder by such Selling Stockholder, for the purpose of further
delivery pursuant to this Agreement. Each Agent has been authorized by such
Selling Stockholder to execute and deliver this Agreement and the Custodian has
been authorized to receive and acknowledge receipt of the proceeds of sale of
the Shares to be sold by such Selling Stockholder against delivery thereof and
otherwise act on behalf of such Selling Stockholder.
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16
(e) All authorizations, approvals, consents and orders
necessary for the execution and delivery by such Selling Stockholder of the
Custody Agreement and Power of Attorney, the execution and delivery by or on
behalf of such Selling Stockholder of this Agreement and the sale and delivery
of the Selling Stockholder Shares under this Agreement (other than, at the time
of the execution hereof (if the Registration Statement has not yet been declared
effective by the Commission), the issuance of the order of the Commission
declaring the Registration Statement effective and such authorizations,
approvals or consents as may be necessary under state or other securities or
Blue Sky laws) have been obtained and are in full force and effect; such Selling
Stockholder, if other than a natural person, has been duly organized and is
validly existing and in good standing under the laws of the jurisdiction of its
organization as the type of entity that it purports to be; and such Selling
Stockholder has full right, power and authority to enter into and perform its
obligations under this Agreement and such Custody Agreement and Power of
Attorney, and to sell, assign, transfer and deliver the Shares to be sold by
such Selling Stockholder under this Agreement.
(f) This Agreement has been duly authorized by such Selling
Stockholder that is not a natural person and has been duly executed and
delivered by or on behalf of such Selling Stockholder and is a valid and binding
agreement of such Selling Stockholder, enforceable in accordance with its terms,
except as the indemnification and contribution provisions hereunder may be
limited by applicable law and except as the enforcement hereof may be limited by
bankruptcy, insolvency, reorganization, moratorium or other similar laws
relating to or affecting creditors' rights generally or by general equitable
principles; and the performance of this Agreement and the consummation of the
transactions herein contemplated will not result in a breach of or default under
any material bond, debenture, note or other evidence of indebtedness, or any
material contract, indenture, mortgage, deed of trust, loan agreement, lease or
other agreement or instrument to which such Selling Stockholder is a party or by
which such Selling Stockholder or any Selling Stockholder Shares hereunder may
be bound or to which any of the property of such Selling Stockholders is
subject, to the best of such Selling Stockholders' knowledge, result in any
violation of any law, order, rule, regulation, writ, injunction or decree of any
court or governmental agency or body or, if such Selling Stockholder is other
than a natural person, result in any violation of any provisions of the charter,
bylaws or other organizational documents of such Selling Stockholder.
(g) Such Selling Stockholder has not distributed and will not
distribute any prospectus or other offering material in connection with the
offering and sale of the Shares.
(h) Such Selling Stockholder will review the Prospectus and
will comply with all agreements and satisfy all conditions on its part to be
complied with or satisfied pursuant to this Agreement on or prior to the Closing
Date and will advise one of its Attorneys prior to the Closing Date if any
statement to be made on behalf of such Selling Stockholder in any certificate
required by this Agreement would be inaccurate if made as of the Closing Date.
(i) Such Selling Stockholder does not have, or has waived
prior to the date hereof, any preemptive right, co-sale right or right of first
refusal or other similar right to
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17
purchase any of the Shares that are to be sold by the Company or any of the
other Selling Stockholders to the Underwriters pursuant to this Agreement; and
such Selling Stockholder does not own any warrants, options or similar rights to
acquire, and does not have any right or arrangement to acquire, any capital
stock, rights, warrants, options or other securities from the Company, other
than those described in the Registration Statement and the Prospectus.
(j) Such Selling Stockholder is not aware (without having
conducted any investigation or inquiry) that any of the representations and
warranties of the Company above is untrue or inaccurate in any material respect.
(k) Each preliminary prospectus, insofar as it has related to
such Selling Stockholder and, to the knowledge of such Selling Stockholder
(without having conducted any investigation or inquiry) in all other respects,
as of its date, has conformed in all material respects with the requirements of
the Act and, as of its date, has not included any untrue statement of a material
fact or omitted to state a material fact necessary to make the statements
therein not misleading; and at the time of effectiveness of the Registration
Statement, and at all times subsequent thereto, up to the First Closing Date or
the Second Closing Date hereinafter defined, as the case may be, (1) such parts
of the Registration Statement and the Prospectus and any amendments or
supplements thereto as relate to such Selling Stockholder, and the Registration
Statement and the Prospectus and any amendments or supplements thereto, to the
knowledge of such Selling Stockholder (without having conducted any
investigation or inquiry) in all other respects, contained or will contain all
statements that are required to be stated therein in accordance with the 1933
Act and in all material respects conformed or will in all material respects
conform to the requirements of the 1933 Act, and (2) neither the Registration
Statement nor the Prospectus, nor any amendment or supplement thereto, as it
relates to such Selling Stockholder, and, to the knowledge of such Selling
Stockholder (without having conducted any investigation or inquiry) in all other
respects, included or will include any untrue statement of a material fact or
omitted or will omit to state any material fact required to be stated therein or
necessary to make the statements therein not misleading; provided that neither
clause (1) nor (2) shall have any effect if information has been given by such
Selling Stockholder to the Company and the Representatives in writing which
would eliminate or remedy any such untrue statement or omission.
(l) Such Selling Stockholder agrees with the Company and the
Underwriters to execute and deliver a Lock-up Letter in substantially the form
attached as Exhibit ___ hereto.
In order to document the Underwriter's compliance with the reporting and
withholding provisions of the Internal Revenue Code of 1986, as amended, with
respect to the transactions herein contemplated, each of the Selling
Stockholders agrees to deliver to you prior to or on the First Closing Date, as
hereinafter defined, a properly completed and executed United States Treasury
Department Form W-8 or W-9 (or other applicable form of statement specified by
Treasury Department regulations in lieu thereof).
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18
9. INDEMNIFICATION AND CONTRIBUTION. (a) The Company agrees to
indemnify and hold harmless each Underwriter and each person, if any, who
controls any Underwriter within the meaning of the Act or the Exchange Act
against any losses, claims, damages or liabilities, joint or several, to which
such Underwriter or such controlling person may become subject under the Act,
the Exchange Act or other federal or state statutory law or regulation, at
common law or otherwise (including in settlement of any litigation if such
settlement is effected with the written consent of the Company, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon any untrue statement or alleged untrue statement of any
material fact contained in the Registration Statement, including the information
deemed to be part of the Registration Statement at the time of effectiveness
pursuant to Rule 430A and/or Rule 434, if applicable, any preliminary
prospectus, the Prospectus, or any amendment or supplement thereto, or arise out
of or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading; and will reimburse each Underwriter and each such
controlling person for any legal or other expenses reasonably incurred by such
Underwriter or such controlling person in connection with investigating or
defending any such loss, claim, damage, liability or action; provided, however,
that the Company will not be liable in any such case to the extent that (i) any
such loss, claim, damage or liability arises out of or is based upon an untrue
statement or alleged untrue statement or omission or alleged omission made in
the Registration Statement, any preliminary prospectus, the Prospectus or any
amendment or supplement thereto in reliance upon and in conformity with written
information furnished to the Company by or on behalf of any Underwriter through
the Representatives, specifically for use therein; or (ii) if such statement or
omission was contained or made in any preliminary prospectus and corrected in
the Prospectus and (1) any such loss, claim, damage or liability suffered or
incurred by any Underwriter (or any person who controls any Underwriter)
resulted from an action, claim or suit by any person who purchased Shares which
are the subject thereof from such Underwriter in the offering and (2) such
Underwriter failed to deliver or provide a copy of the Prospectus to such person
at or prior to the confirmation of the sale of such Shares in any case where
such delivery is required by the Act. In addition to its other obligations under
this Section 9(a), the Company agrees that, as an interim measure during the
pendency of any claim, action, investigation, inquiry or other proceeding
arising out of or based upon any statement or omission, or any alleged statement
or omission, described in this Section 9(a), it will reimburse the Underwriters
on a monthly basis for all reasonable legal and other expenses incurred in
connection with investigating or defending any such claim, action,
investigation, inquiry or other proceeding, notwithstanding the absence of a
judicial determination as to the propriety and enforceability of the Company's
obligation to reimburse the Underwriters for such expenses and the possibility
that such payments might later be held to have been improper by a court of
competent jurisdiction. This indemnity agreement will be in addition to any
liability which the Company may otherwise have.
(b) Each Selling Stockholder, severally in proportion to the
number of Shares to be sold by such Selling Stockholder as compared to the total
number of Shares offered hereby, agrees to indemnify and hold harmless each
Underwriter and each person, if any, who controls any Underwriter within the
meaning of the Act or the Exchange Act against any losses, claims, damages or
liabilities, joint or several, to which such Underwriter or such controlling
person may
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19
become subject under the Act, the Exchange Act or other federal or state
statutory law or regulation, at common law or otherwise (including in settlement
of any litigation if such settlement is effected with the written consent of
such Selling Stockholders), insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of any material fact contained in
the Registration Statement, including the information deemed to be part of the
Registration Statement at the time of effectiveness pursuant to Rule 430A and/or
Rule 434, if applicable, any preliminary prospectus, the Prospectus, or any
amendment or supplement thereto, or arise out of or are based upon the omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading; and will
reimburse each Underwriter and each such controlling person for any legal or
other expenses reasonably incurred by such Underwriter or such controlling
person in connection with investigating or defending any such loss, claim,
damage, liability or action; provided, however, that no Selling Stockholder will
be liable in any such case to the extent that (i) any such loss, claim, damage
or liability arises out of or is based upon an untrue statement or alleged
untrue statement or omission or alleged omission made in the Registration
Statement, any preliminary prospectus, the Prospectus or any amendment or
supplement thereto in reliance upon and in conformity with written information
furnished to the Company by or on behalf of any Underwriter through the
Representatives, specifically for use therein; or (ii) if such statement or
omission was contained or made in any preliminary prospectus and corrected in
the Prospectus and (1) any such loss, claim, damage or liability suffered or
incurred by any Underwriter (or any person who controls any Underwriter)
resulted from an action, claim or suit by any person who purchased Shares which
are the subject thereof from such Underwriter in the offering and (2) such
Underwriter failed to deliver or provide a copy of the Prospectus to such person
at or prior to the confirmation of the sale of such Shares in any case where
such delivery is required by the Act. In addition to their other obligations
under this Section 9(a), the Selling Stockholders agree that, subject to the
limitations set forth in the immediately succeeding paragraph and as an interim
measure during the pendency of any claim, action, investigation, inquiry or
other proceeding arising out of or based upon any statement or omission, or any
alleged statement or omission, described in this Section 9(a), they will
reimburse the Underwriters on a monthly basis for all reasonable legal and other
expenses incurred in connection with investigating or defending any such claim,
action, investigation, inquiry or other proceeding, notwithstanding the absence
of a judicial determination as to the propriety and enforceability of the
Selling Stockholders' obligation to reimburse the Underwriters for such expenses
and the possibility that such payments might later be held to have been improper
by a court of competent jurisdiction. This indemnity agreement will be in
addition to any liability which the Selling Stockholders may otherwise have.
Without limiting the full extent of the Company's agreement to
indemnify each Underwriter, as provided in Section 9(a), each Selling
Stockholder shall be liable under the indemnity agreements contained in this
Section only for an amount not exceeding the initial public offering price of
the Shares sold by such Selling Stockholder to the Underwriters minus the amount
for the underwriting discount paid thereon to the Underwriters by such Selling
Stockholder. In addition, each Underwriter agrees with each of the Selling
Stockholders that any claim for indemnity or reimbursement pursuant to this
Section 9(b) shall be first sought to be
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20
satisfied by the Company and shall be only then sought to be satisfied by the
Selling Stockholders in accordance with this Section 9(b) if, and to the extent
that, such claim for indemnity has not been satisfied in full by the Company.
Notwithstanding the foregoing, each Underwriter agrees that it will not seek to
satisfy any claim for indemnity or reimbursement against the Selling
Stockholders listed in Schedule I until after such Underwriter has obtained a
court-approved settlement or a final adjudication in a court of competent
jurisdiction against the Company.
(c) If any action, suit or proceeding shall be brought against
any Underwriter or any person controlling any Underwriter in respect of which
indemnity may be sought against the Company or any Selling Stockholder, such
Underwriter or such controlling person shall promptly notify the parties against
whom indemnification is being sought (the "indemnifying parties"), and such
indemnifying parties shall assume the defense thereof, including the employment
of counsel and payment of all fees and expenses. Such Underwriter or any such
controlling person shall have the right to employ separate counsel in any such
action, suit or proceeding and to participate in the defense thereof, but the
fees and expenses of such counsel shall be at the expense of such Underwriter or
such controlling person unless (i) the indemnifying parties have agreed in
writing to pay such fees and expenses, (ii) the indemnifying parties have failed
to assume the defense and employ counsel, or (iii) the named parties to any such
action, suit or proceeding (including any impleaded parties) include both such
Underwriter or such controlling person and the indemnifying parties and such
Underwriter or such controlling person shall have been advised by its counsel
that representation of such indemnified party and any indemnifying party by the
same counsel would be inappropriate under applicable standards of professional
conduct (whether or not such representation by the same counsel has been
proposed) due to actual or potential differing interests between them (in which
case the indemnifying party shall not have the right to assume the defense of
such action, suit or proceeding on behalf of such Underwriter or such
controlling person). It is understood, however, that the indemnifying parties
shall, in connection with any one such action, suit or proceeding or separate
but substantially similar or related actions, suits or proceedings in the same
jurisdiction arising out of the same general allegations or circumstances, be
liable for the reasonable fees and expenses of only one separate firm of
attorneys (in addition to any local counsel) at any time for all such
Underwriters and controlling persons not having actual or potential differing
interests with you or among themselves, which firm shall be designated in
writing by Xxxxx Xxxxxx Inc., and that all such fees and expenses shall be
reimbursed as they are incurred. The indemnifying parties shall not be liable
for any settlement of any such action, suit or proceeding effected without their
written consent, but if settled with such written consent, or if there be a
final judgment for the plaintiff in any such action, suit or proceeding, the
indemnifying parties agree to indemnify and hold harmless any Underwriter, to
the extent provided in the preceding paragraph, and any such controlling person
from and against any loss, claim, damage, liability or expense by reason of such
settlement or judgment.
(d) Each Underwriter agrees, severally and not jointly, to
indemnify and hold harmless the Company, its directors, its officers who sign
the Registration Statement, each Selling Stockholder, and any person who
controls the Company within the meaning of Section 15 of the Act or Section
20(a) of the Exchange Act, to the same extent as the foregoing indemnity from
the
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21
Company and the Selling Stockholders to each Underwriter, but only with respect
to information relating to such Underwriter furnished in writing by or on behalf
of such Underwriter through you expressly for use in the Registration Statement,
the Prospectus or any Prepricing Prospectus, or any amendment or supplement
thereto. If any action, suit or proceeding shall be brought against the Company,
any of its directors, any such officer, any Selling Stockholder, or any such
controlling person based on the Registration Statement, the Prospectus or any
Prepricing Prospectus, or any amendment or supplement thereto, and in respect of
which indemnity may be sought against any Underwriter pursuant to this paragraph
(d), such Underwriter shall have the rights and duties given to the Company by
paragraph (c) above (except that if the Company shall have assumed the defense
thereof such Underwriter shall not be required to do so, but may employ separate
counsel therein and participate in the defense thereof, but the fees and
expenses of such counsel shall be at such Underwriter's expense), and the
Company, its directors, any such officer, the Selling Stockholders, and any such
controlling person shall have the rights and duties given to the Underwriters by
paragraph (c) above. The foregoing indemnity agreement shall be in addition to
any liability which any Underwriter may otherwise have.
(e) If the indemnification provided for in this Section 9 is
unavailable to an indemnified party under paragraphs (a) or (d) hereof in
respect of any losses, claims, damages, liabilities or expenses referred to
therein, then an indemnifying party, in lieu of indemnifying such indemnified
party, shall contribute to the amount paid or payable by such indemnified party
as a result of such losses, claims, damages, liabilities or expenses (i) in such
proportion as is appropriate to reflect the relative benefits received by the
Company and the Selling Stockholders on the one hand and the Underwriters on the
other hand from the offering of the Shares, or (ii) if the allocation provided
by clause (i) above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the Company and the Selling Stockholders on
the one hand and the Underwriters on the other in connection with the statements
or omissions that resulted in such losses, claims, damages, liabilities or
expenses, as well as any other relevant equitable considerations. The relative
benefits received by the Company and the Selling Stockholders 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 the offering (before deducting expenses) received
by the Company and the Selling Stockholders bear to the total underwriting
discounts and commissions received by the Underwriters, in each case as set
forth in the table on the cover page of the Prospectus. The relative fault of
the Company and the Selling Stockholders on the one hand and the Underwriters on
the other hand shall be determined by reference to, among other things, whether
the untrue or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information supplied by the
Company or the Selling Stockholders on the one hand or by the Underwriters on
the other hand and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
(f) The Company, the Selling Stockholders and the Underwriters
agree that it would not be just and equitable if contribution pursuant to this
Section 9 were determined by a pro rata allocation (even if the Underwriters
were treated as one entity for such purpose) or by any other method of
allocation that does not take account of the equitable considerations referred
to
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22
in paragraph (e) above. The amount paid or payable by an indemnified party as a
result of the losses, claims, damages, liabilities and expenses referred to in
paragraph (e) above shall be deemed to include, subject to the limitations set
forth above, any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating any claim or defending any such action,
suit or proceeding. Notwithstanding the provisions of this Section 9, no
Underwriter shall be required to contribute any amount in excess of the amount
by which the total price of the Shares underwritten by it and distributed to the
public exceeds the amount of any damages which such Underwriter has otherwise
been required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligations to contribute pursuant to this
Section 9 are several in proportion to the respective numbers of Firm Shares set
forth opposite their names in Schedule II hereto (or such numbers of Firm Shares
increased as set forth in Section 12 hereof) and not joint.
(g) No indemnifying party shall, without the prior written
consent of the indemnified party, effect any settlement of any pending or
threatened action, suit or proceeding in respect of which any indemnified party
is or could have been a party and indemnity could have been sought hereunder by
such indemnified party, unless such settlement includes an unconditional release
of such indemnified party from all liability on claims that are the subject
matter of such action, suit or proceeding.
(h) Any losses, claims, damages, liabilities or expenses for
which an indemnified party is entitled to indemnification or contribution under
this Section 9 shall be paid by the indemnifying party to the indemnified party
as such losses, claims, damages, liabilities or expenses are incurred. The
indemnity and contribution agreements contained in this Section 9 and the
representations and warranties of the Company and the Selling Stockholders set
forth in this Agreement shall remain operative and in full force and effect,
regardless of (i) any investigation made by or on behalf of any Underwriter or
any person controlling any Underwriter, the Company, its directors or officers
or the Selling Stockholders or any person controlling the Company, (ii)
acceptance of any Shares and payment therefor hereunder, and (iii) any
termination of this Agreement. A successor to any Underwriter or any person
controlling any Underwriter, or to the Company, its directors or officers, or
any person controlling the Company, shall be entitled to the benefits of the
indemnity, contribution and reimbursement agreements contained in this Section
9.
10. CONDITIONS OF UNDERWRITERS' OBLIGATIONS. The several obligations
of the Underwriters to purchase the Firm Shares hereunder are subject to the
following conditions:
(a) If, at the time this Agreement is executed and delivered,
it is necessary for the registration statement or a post-effective amendment
thereto to be declared effective before the offering of the Shares may commence,
the registration statement or such post-effective amendment shall have become
effective not later than 5:30 P.M., New York City time, on the date hereof, or
at such later date and time as shall be consented to in writing by you, and all
filings, if any,
- 22 -
23
required by Rules 424 and 430A under the Act shall have been timely made; no
stop order suspending the effectiveness of the registration statement shall have
been issued and no proceeding for that purpose shall have been instituted or, to
the knowledge of the Company or any Underwriter, threatened by the Commission,
and any request of the Commission for additional information (to be included in
the registration statement or the prospectus or otherwise) shall have been
complied with to your satisfaction.
(b) Subsequent to the effective date of this Agreement, there
shall not have occurred (i) any change, or any development involving a
prospective change, in or affecting the condition (financial or other),
business, properties, net worth, or results of operations of the Company or the
Subsidiaries not contemplated by the Prospectus, which in your opinion, as
Representatives of the several Underwriters, would materially adversely affect
the market for the Shares, or (ii) any event or development relating to or
involving the Company or any officer or director of the Company or any Selling
Stockholder which makes any statement made in the Prospectus untrue or which, in
the opinion of the Company and its counsel or the Underwriters and their
counsel, requires the making of any addition to or change in the Prospectus in
order to state a material fact required by the Act or any other law to be stated
therein or necessary in order to make the statements therein not misleading, if
amending or supplementing the Prospectus to reflect such event or development
would, in your opinion, as Representatives of the several Underwriters,
materially adversely affect the market for the Shares.
(c) You shall have received on the Closing Date, an opinion of
Xxxxx, Xxxxxxx & Xxxxxxxxx, LLP, counsel for the Company and for [designated
Selling Shareholders], dated the First Closing Date or the Second and addressed
to you, as Representatives of the several Underwriters, to the effect that:
(i) the Company has been duly incorporated and is
validly existing as a corporation in good standing under the laws of its
jurisdiction of incorporation with corporate power and authority to own its
properties and conduct its business as described in the Prospectus; and the
Company has been duly qualified to do business as a foreign corporation under
the corporation law of, and is in good standing as such in, the jurisdictions
listed in an exhibit to such opinion;
(ii) an opinion to the same general effect as clause (1)
of this subparagraph (i) in respect of each direct and indirect subsidiary of
the Company, as well as an opinion that the execution and performance of this
Agreement will not violate such subsidiary's charter or bylaws (except that such
opinion with respect to PAREXEL unternehens beteilung GmbH, PAREXEL
International SRL, PAREXEL GmbH Independent Pharmaceutical Research
Organization, PAREXEL International Limited, AFB CLINLAB Laborleistungs
- Organisationgesellschaft mbH, PAREXEL International Pty Ltd and PAREXEL,
International shall be based solely upon opinions of local counsel and that the
portion of such opinion addressing the due qualification of PAREXEL
International, Inc. shall be based solely on an opinion of local counsel);
- 23 -
24
(iii) to such counsel's knowledge, the Company does not
own or control, directly or indirectly, any corporation, association or other
entity other than Xxxxxxx International Corporation, a Massachusetts
corporation; PAREXEL International Holding Corporation, a Delaware corporation;
PAREXEL International Securities Corporation, a Massachusetts corporation;
PAREXEL International, Inc., a Delaware corporation; PAREXEL unternehens
beteilung GmbH, a corporation organized under the laws of Germany; PAREXEL
International SRL, a corporation organized under the laws of Italy; PAREXEL GmbH
Independent Pharmaceutical Research Organization, a corporation organized under
the laws of Germany; PAREXEL International Limited, a corporation organized
under the laws of the United Kingdom; AFB CLINLAB Laborleistungs -
Organisationgesellschaft mbH, a corporation organized under the laws of Germany;
PAREXEL, International, a corporation organized under the laws of France; and
PAREXEL International Pty Ltd, a corporation organized under the laws of
Australia;
(iv) all of the issued and outstanding capital stock of
each subsidiary of the Company has been duly authorized, validly issued and is
fully paid and nonassessable, and, except as disclosed in the Registration
Statement, the Company owns directly or indirectly 100 percent of the
outstanding capital stock of each subsidiary, and to the best knowledge of such
counsel, such stock is owned free and clear of any claims, liens, encumbrances
or security interests;
(v) the authorized capital stock of the Company, of
which there is outstanding the amount set forth in the Registration Statement
and Prospectus (except for subsequent issuances, if any, pursuant to stock
options or other rights referred to in the Prospectus), conforms as to legal
matters in all material respects to the description thereof in the Registration
Statement and Prospectus;
(vi) the issued and outstanding capital stock of the
Company has been duly authorized and validly issued and is fully paid and
nonassessable and has not been issued in violation of any preemptive right,
co-sale right, registration right, right of first refusal or other similar
right;
(vii) the certificates for the Shares to be delivered
hereunder are in due and proper form, and when duly countersigned by the
Company's transfer agent and delivered to you or upon your order against payment
of the agreed consideration therefor in accordance with the provisions of this
Agreement and the Pricing Agreement, the Shares represented thereby will be duly
authorized and validly issued, fully paid and nonassessable and will not be
issued in violation of any preemptive right, registration right, co-sale right,
right of first refusal or other similar right and the stockholders of the
Company have no preemptive or, to such counsel's knowledge, other rights to
purchase any of the Shares;
(viii) the Registration Statement has become effective
under the Act, and, to the best knowledge of such counsel, no stop order
suspending the effectiveness of the Registration Statement has been issued and
no proceedings for that purpose have been instituted or are pending or
contemplated under the Act, and the Registration Statement (including the
- 24 -
25
information deemed to be part of the Registration Statement at the time of
effectiveness pursuant to Rule 430A(b) and/or Rule 434, if applicable), the
Prospectus and each amendment or supplement thereto (except for the financial
statements and other statistical or financial data included therein as to which
such counsel need express no opinion) comply as to form in all material respects
with the requirements of the Act; the statements in the Registration Statement
and the Prospectus summarizing statutes, rules and regulations are, to the best
knowledge of such counsel, accurate and fairly and correctly present the
information required to be presented by the Act or the rules and regulations
thereunder, in all material respects and such counsel does not know of any
statutes, rules and regulations required to be described or referred to in the
Registration Statement or the Prospectus that are not described or referred to
therein as required; and such counsel does not know of any legal or governmental
proceedings pending or threatened required to be described in the Prospectus
which are not described as required, nor of any contracts or documents of a
character required to be described in the Registration Statement or Prospectus
or to be filed as exhibits to the Registration Statement which are not described
or filed, as required;
(ix) the statements under the captions "Management,"
"Certain Relationships and Related Transactions" and "Description of Capital
Stock" in the Prospectus, insofar as such statements constitute a summary of
documents referred to therein or matters of law, are accurate summaries and
fairly and correctly present, in all material respects, the information called
for with respect to such documents and matters;
(x) this Agreement and the Pricing Agreement and the
performance of the Company's obligations hereunder have been duly authorized by
all necessary corporate action and this Agreement and the Pricing Agreement have
been duly executed and delivered by and on behalf of the Company; and no
approval, authorization or consent of any public board, agency, or
instrumentality of the United States or of any state or other jurisdiction is
necessary in connection with the issue or sale of the Shares by the Company
pursuant to this Agreement (other than under the Act, applicable blue sky laws
and the rules of the NASD) or the consummation by the Company of any other
transactions contemplated hereby;
(xi) the execution and performance of this Agreement will
not violate the Company's charter or bylaws, or contravene any of the provisions
of, or result in a default under, any agreement filed as an exhibit to the
Registration Statement (except that such opinion with respect to Exhibits [10.6,
10.18, 10.22 AND 10.23] shall be based solely upon an opinion of local counsel)
or, so far as is known to such counsel, violate any material statute, order,
rule or regulation of any regulatory or governmental body having jurisdiction
over the Company or any of its subsidiaries, except in any such case for any
violation which would not have a material adverse effect upon the Company and
its subsidiaries taken as a whole;
(xii) to such counsel's knowledge, other than stock sold
in connection with the Company's initial public offering and second public
offering pursuant to registration statements on Form S-1 (File No. 33-97406 and
33-01180) or pursuant to a registration statement
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26
on Form S-8 (File No. 333-80301), all offers and sales of the Company's capital
stock were at all relevant times exempt from the registration requirements of
the Act;
(xiii) with respect to each Selling Stockholder, this
Agreement has been duly executed and delivered by or on behalf of each such
Selling Stockholder and the Agents and the Custodian for each such Selling
Stockholder have been duly and validly authorized to carry out all transactions
contemplated herein on behalf of each such Selling Stockholder; and the
performance of this Agreemente Selling Stockholder to the Shares being purchased
from such Selling Stockholder) and the consummation of the transactions herein
contemplated by such Selling Stockholders will not result in a breach or
violation of any of the terms and provisions of, or constitute a default under,
any statute, any indenture, mortgage, deed of trust, note agreement or other
agreement or instrument known to such counsel to which any of such Selling
Stockholders is a party or by which any are bound or to which any of the
property of such Selling Stockholders is subject, or any order, rule or
regulation known to such counsel of any court or governmental agency or body
having jurisdiction over any of such Selling Stockholders or any of their
properties; and no consent, approval, authorization or order of any court or
governmental agency or body is required for the consummation of the transactions
contemplated by this Agreement in connection with the sale of Shares to be sold
by such Selling Stockholders hereunder, except such as have been obtained under
the Act and such as may be required under applicable blue sky laws in connection
with the purchase and distribution of such Shares by the Underwriters and the
clearance of such offering with the NASD;
(xiv) each Selling Stockholder has full right, power and
authority to enter into this Agreement and to sell, transfer and deliver the
Shares to be sold on the First Closing Date or the Second Closing Date, as the
case may be, by such Selling Stockholder hereunder and good and marketable title
to such Shares so sold, free and clear of all voting trust arrangements, liens,
encumbrances, equities, claims and community property rights whatsoever, has
been transferred to the Underwriters (who counsel may assume to be bona fide
purchasers, without notice of any defect in the title of any such who have
purchased such Shares hereunder; and
(xv) the Company is not an "investment company" or a
person "controlled by" an "investment company" within the meaning of the
Investment Company Act.
In addition, such counsel shall state that, although they have not
verified the accuracy or completeness of the statements contained in the
Registration Statement or the Prospectus, nothing has come to the attention of
such counsel which causes them to believe that, at the time the Registration
Statement became effective, the Registration Statement (other than the financial
statements, including supporting schedules and financial data derived therefrom,
as to which such counsel need express no comment) contained any untrue statement
of a material fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading, or at the First
Closing Date or any later date on which the Options Shares are to be purchased,
as the case may be, the Prospectus (except as aforesaid) contained an untrue
statement of a material fact or omitted to state
- 26 -
27
a material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading.
In rendering such opinion, such counsel may state that they are
relying solely upon the certificate of [THE FIRST NATIONAL BANK OF BOSTON], the
transfer agent for the Common Stock, as to the number of shares of Common Stock
at any time or times outstanding, and, with regard to the factual basis for the
opinion set forth in clause (xiii), solely upon a certificate of such Selling
Stockholder. It is understood that such counsel will not render opinions under
clauses (xiii) and (xiv) insofar as such clauses relate to Xx. Xxxxxxxx and
involve matters of German law. Such counsel may also rely, as to questions of
law not involving the laws of the United States or The Commonwealth of
Massachusetts or the General Corporation Law of the State of Delaware, solely
upon the opinions of local counsel and, as to factual matters, solely on
certificates of the Selling Stockholders and of officers of the Company and of
state officials, in which case their opinion is to state that they are so doing
and copies of said opinions or certificates are to be attached to the opinion
unless said opinions or certificates (or, in the case of certificates, the
information therein) have been furnished to the Representatives in other form.
(d) An opinion of counsel to each of the Selling Stockholders
other than the Selling Stockholders represented by Xxxxx, Xxxxxxx & Xxxxxxxxx,
LLP, dated the First Closing Date or the Second Closing Date, as the case may
be, with respect to the matters set forth in subsections (f)(i)(xiii) and (xiv),
above. In rendering this opinion, such counsel may state that they are relying
solely upon a certificate of such Selling Stockholder for the factual basis of
the opinion.
(e) You shall have received on the Closing Date, an opinion of
[ ] Esq., corporate counsel for the Company, dated the Closing Date and
addressed to you, as Representatives of the several Underwriters, to the effect
that:
(i) the Company and each of the Subsidiaries has full
corporate power and authority, and all necessary governmental authorizations,
approvals, orders, licenses, certificates, franchises and permits of and from
all governmental regulatory officials and bodies (except where the failure so to
have any such authorizations, approvals, orders, licenses, certificates,
franchises or permits, individually or in the aggregate, would not have a
material adverse effect on the business, properties, operations or financial
condition of the Company and the Subsidiaries taken as a whole), to own their
respective properties and to conduct their respective businesses as now being
conducted, as described in the Prospectus;
(ii) except as disclosed in the Prospectus, the Company
owns of record, directly or indirectly, all the outstanding shares of capital
stock of each of the Subsidiaries free and clear of any lien, adverse claim,
security interest, equity, or other encumbrance;
(iii) other than as described or contemplated in the
Prospectus (or any supplement thereto), there are no legal or governmental
proceedings pending or threatened against the Company or any of the
Subsidiaries, or to which the Company or any of the
- 27 -
28
Subsidiaries, or any of their property, is subject, which are required to be
described in the Registration Statement or Prospectus (or any amendment or
supplement thereto);
(iv) there are no agreements, contracts, indentures,
leases or other instruments, that are required to be described in the
Registration Statement or the Prospectus (or any amendment or supplement
thereto) or to be filed as an exhibit to the Registration Statement or any
Incorporated Document that are not described or filed as required, as the case
may be;
(v) the Company and the Subsidiaries own all patents,
trademarks, trademark registrations, service marks, service xxxx registrations,
trade names, copyrights, licenses, inventions, trade secrets and rights
described in the Prospectus as being owned by them or any of them or necessary
for the conduct of their respective businesses, and [corporate counsel for the
Company] is not aware of any claim to the contrary or any challenge by any other
person to the rights of the Company and the Subsidiaries with respect to the
foregoing;
(vi) neither the Company nor any of the Subsidiaries is
in violation of any law, ordinance, administrative or governmental rule or
regulation applicable to the Company or any of the Subsidiaries or of any decree
of any court or governmental agency or body having jurisdiction over the Company
or any of the Subsidiaries;
(vii) except as described in the Prospectus, there are no
outstanding options, warrants or other rights calling for the issuance of, and
such counsel does not know of any commitment, plan or arrangement to issue, any
shares of capital stock of the Company or any security convertible into or
exchangeable or exercisable for capital stock of the Company; and
(viii) except as described in the Prospectus, there is no
holder of any security of the Company or any other person who has the right,
contractual or otherwise, to cause the Company to sell or otherwise issue to
them, or to permit them to underwrite the sale of, the Shares or the right to
have any Common Stock or other securities of the Company included in the
registration statement or the right, as a result of the filing of the
registration statement, to require registration under the Act of any shares of
Common Stock or other securities of the Company.
(f) You shall have received on the Closing Date an opinion of
Ropes & Xxxx, counsel for the Underwriters, dated the Closing Date and addressed
to you, as Representatives of the several Underwriters, with respect to the
matters referred to in clauses (v), (vii), (viii), (xii) and (xx) of the
foregoing paragraph (d) and such other related matters as you may request.
(g) You shall have received letters addressed to you, as
Representatives of the several Underwriters, and dated the date hereof and the
Closing Date from Price Waterhouse LLP, independent certified public
accountants, substantially in the forms heretofore approved by you.
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29
(h) (i) No stop order suspending the effectiveness of the
Registration Statement shall have been issued and no proceedings for that
purpose shall have been taken or, to the knowledge of the Company, shall be
contemplated by the Commission at or prior to the Closing Date; (ii) there shall
not have been any change in the capital stock of the Company nor any material
increase in the short-term or long-term debt of the Company (other than in the
ordinary course of business) from that set forth or contemplated in the
Registration Statement or the Prospectus (or any amendment or Supplement
thereto); (iii) there shall not have been, since the respective dates as of
which information is given in the Registration Statement and the Prospectus (or
any amendment or supplement thereto), except as may otherwise be stated in the
Registration Statement and Prospectus (or any amendment or supplement thereto),
any material adverse change in the condition (financial or other), business,
prospects, properties, net worth or results of operations of the Company and the
Subsidiaries taken as a whole; (iv) the Company and the Subsidiaries shall not
have any liabilities or obligations, direct or contingent (whether or not in the
ordinary course of business), that are material to the Company and the
Subsidiaries, taken as a whole, other than those reflected in the Registration
Statement or the Prospectus (or any amendment or supplement thereto); and (v)
all the representations and warranties of the Company contained in this
Agreement shall be true and correct on and as of the date hereof and on and as
of the Closing Date as if made on and as of the Closing Date, and you shall have
received a certificate, dated the Closing Date and signed by the chief executive
officer and the chief financial officer of the Company (or such other officers
as are acceptable to you), to the effect set forth in this Section 10(h) and in
Section 10(i) hereof.
(i) The Company shall not have failed at or prior to the
Closing Date to have performed or complied with any of its agreements herein
contained and required to be performed or complied with by it hereunder at or
prior to the Closing Date.
(j) All the representations and warranties of the Selling
Stockholders contained in this Agreement shall be true and correct on and as of
the date hereof and on and as of the Closing Date as if made on and as of the
Closing Date, and you shall have received a certificate, dated the Closing Date
and signed by or on behalf of the Selling Stockholders to the effect set forth
in this Section 10(j) and in Section 10(k) hereof.
(k) The Selling Stockholders shall not have failed at or prior
to the Closing Date to have performed or complied with any of their agreements
herein contained and required to be performed or complied with by them hereunder
at or prior to the Closing Date.
(l) Prior to the Closing Date the shares of Common Stock which
the Company agrees to sell pursuant to this Agreement shall have been listed,
subject to notice of issuance, on the Nasdaq National Market.
(m) The Sellers shall have furnished or caused to be furnished
to you such further certificates and documents as you shall have requested.
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30
All such opinions, certificates, letters and other documents will be in
compliance with the provisions hereof only if they are satisfactory in form and
substance to you and your counsel.
Any certificate or document signed by any officer of the Company or any
Attorney-in-Fact or any Selling Stockholder and delivered to you, as
Representatives of the Underwriters, or to counsel for the Underwriters, shall
be deemed a representation and warranty by the Company, the Selling Stockholders
or the particular Selling Stockholder, as the case may be, to each Underwriter
as to the statements made therein.
The several obligations of the Underwriters to purchase Additional
Shares hereunder are subject to the satisfaction on and as of any Option Closing
Date of the conditions set forth in this Section 10, except that, if any Option
Closing Date is other than the Closing Date, the certificates, opinions and
letters referred to in paragraphs (c) through (d) shall be dated the Option
Closing Date in question and the opinions called for by paragraphs (c), (e) and
(f) shall be revised to reflect the sale of Additional Shares.
11. EXPENSES. The Company agrees to pay the following costs and
expenses and all other costs and expenses incident to the performance by it of
its obligations hereunder: (i) the preparation, printing or reproduction, and
filing with the Commission of the registration statement (including financial
statements and exhibits thereto), each Prepricing Prospectus, the Prospectus,
and each amendment or supplement to any of them; (ii) the printing (or
reproduction) and delivery (including postage, air freight charges and charges
for counting and packaging) of such copies of the registration statement, each
Prepricing Prospectus, the Prospectus, the Incorporated Documents, and all
amendments or supplements to any of them, as may be reasonably requested for use
in connection with the offering and sale of the Shares; (iii) the preparation,
printing, authentication, issuance and delivery of certificates for the Shares,
including any stamp taxes in connection with the original issuance and sale of
the Shares; (iv) the printing (or reproduction) and delivery of this Agreement,
the preliminary and supplemental Blue Sky Memoranda and all other agreements or
documents printed (or reproduced) and delivered in connection with the offering
of the Shares; (v) the listing of the Shares on the Nasdaq National Market; (vi)
the registration or qualification of the Shares for offer and sale under the
securities or Blue Sky laws of the several states as provided in Section 5(g)
hereof (including the reasonable fees, expenses and disbursements of counsel for
the Underwriters relating to the preparation, printing or reproduction, and
delivery of the preliminary and supplemental Blue Sky Memoranda and such
registration and qualification); (vii) the filing fees and the fees and expenses
of counsel for the Underwriters in connection with any filings required to be
made with the National Association of Securities Dealers, Inc.; (viii) the
transportation and other expenses incurred by or on behalf of Company
representatives in connection with presentations to prospective purchasers of
the Shares; and (ix) the fees and expenses of the Company's accountants and the
fees and expenses of counsel (including local and special counsel) for the
Company and the Selling Stockholders.
12. EFFECTIVE DATE OF AGREEMENT. This Agreement shall become effective:
(i) upon the execution and delivery hereof by the parties hereto; or (ii) if, at
the time this Agreement is executed and delivered, it is necessary for the
registration statement or a post-effective amendment
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31
thereto to be declared effective before the offering of the Shares may commence,
when notification of the effectiveness of the registration statement or such
post-effective amendment has been released by the Commission. Until such time as
this Agreement shall have become effective, it may be terminated by the Company,
by notifying you, or by you, as Representatives of the several Underwriters, by
notifying the Company and the Selling Stockholders.
If any one or more of the Underwriters shall fail or refuse to
purchase Shares which it or they are obligated to purchase hereunder on the
Closing Date, and the aggregate number of Shares which such defaulting
Underwriter or Underwriters are obligated but fail or refuse to purchase is not
more than one-tenth of the aggregate number of Shares which the Underwriters are
obligated to purchase on the Closing Date, each non-defaulting Underwriter shall
be obligated, severally, in the proportion which the number of Firm Shares set
forth opposite its name in Schedule II hereto bears to the aggregate number of
Firm Shares set forth opposite the names of all non-defaulting Underwriters or
in such other proportion as you may specify in accordance with Section 20 of the
Master Agreement Among Underwriters of Xxxxx Xxxxxx Inc., to purchase the Shares
which such defaulting Underwriter or Underwriters are obligated, but fail or
refuse, to purchase. If any one or more of the Underwriters shall fail or refuse
to purchase Shares which it or they are obligated to purchase on the Closing
Date and the aggregate number of Shares with respect to which such default
occurs is more than one-tenth of the aggregate number of Shares which the
Underwriters are obligated to purchase on the Closing Date and arrangements
satisfactory to you and the Company for the purchase of such Shares by one or
more non-defaulting Underwriters or other party or parties approved by you and
the Company are not made within 36 hours after such default, this Agreement will
terminate without liability on the part of any non-defaulting Underwriter or the
Company. In any such case which does not result in termination of this
Agreement, either you or the Company shall have the right to postpone the
Closing Date, but in no event for longer than seven days, in order that the
required changes, if any, in the Registration Statement and the Prospectus or
any other documents or arrangements may be effected. Any action taken under this
paragraph shall not relieve any defaulting Underwriter from liability in respect
of any such default of any such Underwriter under this Agreement. The term
"Underwriter" as used in this Agreement includes, for all purposes of this
Agreement, any party not listed in Schedule II hereto who, with your approval
and the approval of the Company, purchases Shares which a defaulting Underwriter
is obligated, but fails or refuses, to purchase.
Any notice under this Section 12 may be given by telegram, telecopy or
telephone but shall be subsequently confirmed by letter.
13. TERMINATION OF AGREEMENT. This Agreement shall be subject to
termination in your absolute discretion, without liability on the part of any
Underwriter to the Company or any Selling Stockholder, by notice to the Company,
if prior to the Closing Date or any Option Closing Date (if different from the
Closing Date and then only as to the Additional Shares), as the case may be, (i)
trading in securities generally on the New York Stock Exchange, the American
Stock Exchange or the Nasdaq National Market shall have been suspended or
materially limited, (ii) a general moratorium on commercial banking activities
in New York or Massachusetts shall have been
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declared by either federal or state authorities, or (iii) there shall have
occurred any outbreak or escalation of hostilities or other international or
domestic calamity, crisis or change in political, financial or economic
conditions, the effect of which on the financial markets of the United States is
such as to make it, in your judgment, impracticable or inadvisable to commence
or continue the offering of the Shares at the offering price to the public set
forth on the cover page of the Prospectus or to enforce contracts for the resale
of the Shares by the Underwriters. Notice of such termination may be given to
the Company by telegram, telecopy or telephone and shall be subsequently
confirmed by letter.
14. INFORMATION FURNISHED BY THE UNDERWRITERS. The statements set forth
in the last paragraph on the cover page, the stabilization legend on the inside
cover page, and the statements in the first and third paragraphs under the
caption "Underwriting" in any Prepricing Prospectus and in the Prospectus,
constitute the only information furnished by or on behalf of the Underwriters
through you as such information is referred to in Sections 7(b) and 9 hereof.
15. MISCELLANEOUS. Except as otherwise provided in Sections 5, 12 and
13 hereof, notice given pursuant to any provision of this Agreement shall be in
writing and shall be delivered (i) if to the Company, at the office of the
Company at 000 Xxxx Xxxxxx, Xxxxxxx, Xxxxxxxxxxxxx 00000, Attention: Xx. Xxxxx
X. xxx Xxxxxxxxxx, President, Chief Executive Officer and Chairman, with a copy
to Xxxxxxx X. Xxxxxxx, Xx. of Xxxxx, Xxxxxxx & Xxxxxxxxx, LLP, High Street
Tower, 000 Xxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000; or (ii) if sent to the
Selling Stockholders mailed or delivered to the Agents and the Custodian at such
address as they have previously furnished to the Company, with a copy to Xxxxxxx
X. Xxxxxxx, Xx. of Xxxxx, Xxxxxxx & Xxxxxxxxx, LLP, High Street Tower, 000 Xxxx
Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000; or (iii) if to you, as Representatives of
the several Underwriters, care of Xxxxx Xxxxxx Inc., 000 Xxxxxxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, Attention: Manager, Investment Banking Division.
This Agreement has been and is made solely for the benefit of the
several Underwriters, the Company, its directors and officers, and the other
controlling persons referred to in Section 9 hereof and their respective
successors and assigns, to the extent provided herein, and no other person shall
acquire or have any right under or by virtue of this Agreement. Neither the term
"successor" nor the term "successors and assigns" as used in this Agreement
shall include a purchaser from any Underwriter of any of the Shares in his
status as such purchaser.
16. APPLICABLE LAW; COUNTERPARTS. This Agreement shall be governed by
and construed in accordance with the laws of the State of New York applicable to
contracts made and to be performed within the State of New York.
This Agreement may be signed in various counterparts which together
constitute one and the same instrument. If signed in counterparts, this
Agreement shall not become effective unless at least one counterpart hereof
shall have been executed and delivered on behalf of each party hereto.
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33
Please confirm that the foregoing correctly sets forth the agreement
among the Company, the Selling Stockholders and the several Underwriters.
Very truly yours,
PAREXEL INTERNATIONAL CORPORATION
By ........................
Chairman of the Board
Each of the Selling Stockholders
named in Schedule I hereto
By ........................
Attorney-in-Fact
By ........................
Attorney-in-Fact
Confirmed as of the date first
above mentioned on behalf of
themselves and the other several
Underwriters named in Schedule II
hereto.
XXXXX XXXXXX INC.
As Representatives of the Several Underwriters
By XXXXX XXXXXX INC.
By ..........................
Managing Director
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SCHEDULE I
PAREXEL INTERNATIONAL CORPORATION
Number of
Selling Stockholders Firm Shares
-------------------- -----------
Xxxxxx X. Xxxxxx 125,000
Xxxxx X. xxx Xxxxxxxxxx 30,000
Xxxxxx X. Tag 15,700
A. Xxxx Xxxxxx, Xx. 15,000
Xxxxx X. Xxxxxxx 7,500
Xxxxxxxx Xxxxxx 5,000
Xxxxxxx X. Xxxx, Xx. 5,000
Xxxxx Xxxxxx Hutt 3,600
Xxxxxx X. Xxxxxx 1,300
------------------------------------------------------------------------
Total........ 208,100
-------
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35
SCHEDULE II
PAREXEL INTERNATIONAL CORPORATION
Additional
Underwriter Firm Shares Firm Shares
----------- ----------- -----------
Xxxxx Xxxxxx Inc.....................
Xxxxxxx Xxxxx & Company, L.L.C.......
Xxxxxx Brothers Inc. ................
Xxxxx, Xxxxxxxx & Xxxx, Inc..........
----------------------------------------------------------------------------
Total................................ 1,275,000 191,250
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