EXHIBIT 10.23
EXECUTION COPY
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SECOND AMENDED AND RESTATED
REGISTRATION RIGHTS AGREEMENT
by and among
▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇. INC.,
MEDICAL ADVISORY SYSTEMS, INC.,
PREMIER RESEARCH WORLDWIDE, LTD.,
▇▇▇▇▇▇-▇▇▇▇▇▇▇▇▇ CAPITAL FOCUS II, L.P.,
TD ORIGEN CAPITAL FUND, L.P.,
TD JAVELIN CAPITAL FUND, L.P.,
GE CAPITAL EQUITY INVESTMENTS, INC. and
▇▇▇▇▇ ▇▇▇▇▇▇
Dated as of June 1, 1999
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TABLE OF CONTENTS
SECTION 1. Definitions ..................................................... 2
SECTION 2. Methodology for Calculations .................................... 7
SECTION 3. Corporate Governance ............................................ 8
3.1. Composition of the Board ........................................... 8
3.2. Committees .......................................................... 10
3.3. Vacancies: Removal ................................................. 10
3.4. Directors' Indemnification ......................................... 10
3.5. Irrevocable Proxy .................................................. 11
3.6. Expenses ........................................................... 11
3.7. Cooperation ........................................................ 12
SECTION 4. Restrictions on Transfers of Stock .............................. 12
SECTION 5. Management Shareholders ......................................... 13
SECTION 6. Right of First Offer ............................................ 18
SECTION 7. Tag-Along Rights ................................................ 20
SECTION 8. Issuance Rights ................................................. 21
SECTION 9. Holdback Agreement; Adjustments ................................. 22
SECTION 10. Certain Covenants .............................................. 22
10.1. Inspection ........................................................ 22
10.2. Financial Statements .............................................. 23
10.3. Use of Proceeds ................................................... 24
10.4. Information Covenant .............................................. 24
10.5. Permitted Activities and Proceeds ................................. 25
10.6. Regulatory Compliance Cooperation ................................. 25
10.7. Management Rights ................................................. 25
10.8. System of Accounting .............................................. 26
10.9. Board Observation Right ........................................... 26
10.10. Reservation of Conversion Stock .................................. 26
10.11. Employee Confidentiality Agreements .............................. 26
10.12. Amendment of Employee Stock Option Plan .......................... 26
SECTION 11. Conflicting Agreements ......................................... 27
SECTION 12. Legend ......................................................... 27
SECTION 13. Representations and Warranties ................................. 28
SECTION 14. Duration of Agreement .......................................... 29
SECTION 15. Further Assurance .............................................. 29
SECTION 16. Amendment and Waiver ........................................... 29
SECTION 17. Severability ................................................... 29
SECTION 18. Entire Agreement ............................................... 30
SECTION 19. Successors and Assigns ......................................... 30
SECTION 20. Counterparts ................................................... 30
SECTION 21. Remedies ....................................................... ▇▇
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▇▇▇▇▇▇▇ ▇▇. Notices ........................................................ 31
SECTION 23. Governing Law .................................................. 31
SECTION 24. Miscellaneous .................................................. 32
SECTION 25. Construction ................................................... 32
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EXECUTION COPY
SECOND AMENDED AND RESTATED
REGISTRATION RIGHTS AGREEMENT
SECOND AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT (the
"Agreement") made and entered into as of this 1st day of June, 1999, among
▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇. INC., a Delaware corporation (the "Company"), and MEDICAL
ADVISORY SYSTEMS, INC., a Delaware corporation ("Medical Advisory Systems"),
PREMIER RESEARCH WORLDWIDE, LTD., a Delaware corporation ("Premier"), and
▇▇▇▇▇▇-▇▇▇▇▇▇▇▇▇ CAPITAL FOCUS II, L.P., a Delaware limited partnership, TD
ORIGEN CAPITAL FUND, L.P., a Delaware limited partnership, TD JAVELIN CAPITAL
FUND, L.P., a Delaware limited partnership (collectively, "TD"), THE WYNDHURST
CAPITAL GROUP, LLC, a Maryland limited liability company ("Wyndhurst") and GE
CAPITAL EQUITY INVESTMENTS, INC., a Delaware corporation ("GE"; each of Medical
Advisory Systems, Premier, TD, Wyndhurst and GE are referred to herein as a
"Holder" and collectively as the "Holders").
BACKGROUND
On July 2, 1998, the Company entered into a Registration Rights Agreement
(the "Old Registration Rights Agreement") with each of Medical Advisory Systems
and Premier in connection with the purchase by Medical Advisory Systems of
50,000 shares of the Company's Common Stock, $0.01 par value per share (the
"Common Stock"), and the purchase by Premier of 50,000 shares of the Company's
Common Stock.
On February 1, 1999, TD purchased 133,333 shares of the Company's Series A
Convertible Preferred Stock, $0.01 par value per share (the "Series A Preferred
Stock"), and a Common Stock warrant pursuant to a Securities Purchase Agreement
dated as of February 1, 1999 among the Company and TD, and subject to the terms
and conditions contained in the Amended and Restated Shareholders' and Voting
Agreement by and among the Company, Medical Advisory Systems, Premier, ▇▇▇▇▇
▇▇▇▇▇▇ and TD (the "Restated Shareholders' Agreement").
In connection with TD's investment in the Series A Preferred Stock, the
Company agreed to provide to TD certain registration rights, and Medical
Advisory Systems and Premier agreed to amend and restate their registration
rights and supersede the terms of the Old Registration Rights Agreement (the
"Restated Registration Rights Agreement").
GE and TD are purchasing 113,327 shares of the Company's Series B
Redeemable Convertible Preferred Stock, $0.01 par value per share (the "Series B
Preferred Stock"), and certain Common Stock and Series B Preferred Stock
warrants (the "Warrants") pursuant to a Securities Purchase Agreement dated the
date hereof among the Company, GE and TD, and
subject to the terms and conditions contained in the Second Amended and Restated
Shareholders' and Voting Agreement by and among the Company, Medical Advisory
Systems, Premier, TD, GE and ▇▇▇▇▇ ▇▇▇▇▇▇ (the "Current Shareholders'
Agreement").
In connection with GE's investment in the Series B Preferred Stock, the
Company has agreed to provide GE certain registration rights, and Medical
Advisory Systems, Premier and TD have agreed to amend and restate their
registration rights and supersede the terms of the Restated Registration Rights
Agreement and to add Wyndhurst as a party. Notwithstanding any provision or
right granted to Holders in this Agreement, each Holder is bound by any and all
restrictions on registration and transfer contained in the Current Shareholders'
Agreement.
NOW THEREFORE, in consideration of the premises and the mutual covenants
contained herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, and subject to and on the terms
and conditions herein set forth, the Company and Holders, intending to be
legally bound, hereby agree as follows:
SECTION 1. CERTAIN DEFINITIONS.
In addition to the other terms defined in this Agreement, the following
terms shall be defined as follows:
"Business Day" means any day on which the NYSE is open for trading.
"Company IPO" means the initial underwritten public offering of the
Company's shares of Common Stock or any other securities of the Company that are
convertible into or exchangeable for Common Stock of the Company which becomes
registered under the Securities Act of 1933, as amended, or Section 12 of the
Securities Exchange Act of 1934, as amended.
"Effective Period" means the 5-year period commencing on the earlier to
occur of (i) June 1, 2001 and (ii) the 180th day after the closing date of the
Company IPO and ending on the 5th anniversary of the Company IPO.
"Fair Market Value" means the average of the closing price per share for
the Registrable Securities as to which a registration is being effected as
reported on the NYSE Composite Transactions Tape for the 20 consecutive trading
days immediately prior to the applicable date of determination, or, if such
securities are not then listed and traded on the NYSE, the closing price for
such securities for such period on the principal national securities exchange
(or market) on which they are then traded as reported in the principal
consolidated transaction reporting system with respect to securities listed on
such exchange (or market) or, if such securities are not listed or admitted to
trading on any national securities exchange, the last quoted price or, if not so
quoted, the average of the high bid and low asked prices in the over-the-counter
market, as reported by NASDAQ or such other organization, the average of the
closing bid and asked prices as furnished by a professional market maker making
a market in such securities selected by the Board of Directors of the Company.
The term "trading day" shall mean a day on which the principal national
securities exchange on which the shares of Common Stock are listed or
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admitted to trading is open for transaction of business or, if the shares of
Common Stock are not listed or admitted to trading on any national securities
exchange, a Business Day.
"NYSE" means the New York Stock Exchange.
"Person" means an individual, a partnership (general or limited),
corporation, limited liability company, joint venture, business trust,
cooperative, association or other form of business organization, whether or not
regarded as a legal entity under applicable law, a trust (inter vivos or
testamentary), an estate of a deceased, insane or incompetent person, a
quasi-governmental entity, a government or any agency, authority, political
subdivision or other instrumentality thereof, or any other entity.
"Registrable Security(ies)" means (i) all shares of Common Stock held by
Holders not previously sold to the public or issuable to Holders upon conversion
of the Series A Preferred Stock or warrants issued in connection with the
original issue of the Series A Stock or Series B Preferred Stock or Warrants or
any other options or warrants held by such holders and (ii) any additional
shares of Common Stock or other equity securities of the Company that may be
issued to Holders in respect of or in exchange for any such shares by way of a
distribution, in connection with a combination, split, exchange, reorganization,
recapitalization or reclassification of the Company's securities, or pursuant to
a merger, division, consolidation, liquidation or other similar business
transaction or combination involving the Company; provided that as to any
particular Registrable Securities, such securities shall cease to constitute
Registrable Securities (i) when a registration statement with respect to the
sale of such securities shall have become effective under the Securities Act and
such securities shall have been disposed of thereunder, or (ii) when in the
opinion of counsel to the Company (which counsel shall be reasonably acceptable
to such Holder) such securities are permitted to be distributed pursuant to Rule
144 (or any successor provision to such Rule) under the Securities Act without
volume restrictions or are otherwise freely transferable to the public without
further registration under the Securities Act, or (iii) when such securities
shall have ceased to be issued and outstanding, or (iv) the end of the Effective
Period; and, in the case of clause (ii), the Company, upon request of any
Holder, shall have delivered to such Holder a written opinion of counsel to the
Company (which counsel shall be reasonably acceptable to such Holder) to such
effect.
"Registration Expenses" means all expenses incident to the Company's
performance of or compliance with the registration requirements set forth in
this Agreement including, without limitation, the following: (i) the fees,
disbursements and expenses of the Company's counsel(s), accountants, and experts
in connection with the registration under the Securities Act of Registrable
Securities; (ii) all expenses in connection with the preparation, printing and
filing of the registration statement, any preliminary prospectus or final
prospectus, any other offering document and amendments and supplements thereto,
and the mailing and delivering of copies thereof to the underwriters and
dealers, if any; (iii) the cost of printing or producing any agreement(s) among
underwriters, underwriting agreement(s) and blue sky or legal investment
memoranda, any selling agreements, and any other documents in connection with
the offering, sale or delivery of Registrable Securities to be disposed of; (iv)
the fees and expenses incurred in connection with the listing of Registrable
Securities on each securities exchange on which the
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Company securities of the same class are then listed; and (v) the fees and/or
disbursements of one special counsel for the Holders; provided, however, that
Registration Expenses with respect to any registration pursuant to this
Agreement shall not include Selling Expenses.
"SEC" means the United States Securities and Exchange Commission, or such
other federal agency at the time having the principal responsibility for
administering the Securities Act.
"Securities Act" shall mean the Securities Act of 1933, as amended, and
the rules and regulations of the SEC thereunder, all as the same shall be in
effect at the relevant time.
"Selling Expenses" shall mean, with respect to any registration pursuant
to this Agreement, any underwriting discounts or commissions attributable to
Registrable Securities or counsel fees, if any, in excess of the expenses of one
special counsel for the Holders.
SECTION 2. REGISTRATION RIGHTS.
This Agreement shall become effective immediately and shall terminate upon
the performance by the Company of the last of its obligations hereunder.
SECTION 3. REQUIRED REGISTRATION.
(a) Subject to Section 3(c), at any time during the Effective Period (but
in no event earlier than the 180th day following the closing date of the Company
IPO), if the Company shall receive from the holders of no less than (i) 40% of
the outstanding Registrable Securities or (ii) a majority of the Registrable
Securities issued or issuable upon conversion of (x) the Series A Preferred
Stock or (y) the Series B Preferred Stock issued on the date hereof, a written
request that the Company register under the Securities Act all or any portion of
the Registrable Securities held by (or then issuable to) Holders for sale in the
manner specified in such notice (including, but not limited to, an underwritten
public offering), the Company shall promptly give notice thereof to all Holders
of Registrable Securities. Each Holder shall have the right, by giving notice to
the Company within 15 days following receipt by it of such notice from the
Company, to elect to have included in such registration such of its Registrable
Securities as such Holder shall request in such notice of election, subject to
Section 3(c). Such notice to the Company from the Holders shall specify the
number of Registrable Securities for which registration is requested, the
proposed manner of disposition of such Securities, and the minimum price per
share at which Holders would be willing to sell such securities in an
underwritten offering. The Company shall use its reasonable best efforts to
effect registration of the Registrable Securities specified in such notices,
provided, that the Company shall not be required to effect a registration
pursuant to this Section 3(a) unless the Holders requesting registration propose
to dispose of shares of Registrable Securities having an aggregate price to the
public (before deduction of underwriters discounts and expenses of sale) of at
least $5,000,000. If a majority in aggregate amount of the Registrable
Securities to be included in such offering shall have requested that such
offering be underwritten, the managing underwriter for such offering shall be
chosen by the Company with the written consent of the holders of a majority of
the aggregate Registrable Securities being registered, which consent shall not
be unreasonably withheld. On or before the
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45th day prior to the anticipated filing date specified in writing by the
Company to the Holders, the Holders may give written notice to the Company and
the managing underwriter specifying either that (A) Registrable Securities of
Holders are to be included in the underwriting on the same terms and conditions
as the securities otherwise being sold through the underwriters under such
registration or (B) such Registrable Securities are to be registered pursuant to
such registration statement and sold in the open market without any underwriting
on terms and conditions comparable to those normally applicable to offerings in
reasonably similar circumstances, regardless of the method of disposition
originally specified in Holders' request for registration. The Company shall not
be obligated to file more than three Registration Statements pursuant to this
Section 3(a); provided that a request shall not be counted for this purpose if
(i) the Company elects to sell stock pursuant to a registration at the same time
as the registration requested hereunder and less than all the Registrable
Securities for which registration was requested are included, (ii) the
registration statement does not become effective, or (iii) the requesting
holders are not able to sell at least 90% of the Registrable Securities
requested to be included in such registration statement. The Company shall use
its reasonable best efforts to cause such registration statement to become
effective within 90 days after its filing.
(b) In the event that the Company shall receive from the holders of no
less than (i) 40% of the outstanding Registrable Securities or (ii) a majority
of the Registrable Securities issued or issuable upon conversion of (x) the
Series A Preferred Stock or (y) the Series B Preferred Stock issued on the date
hereof, a written request that the Company effect any registration with respect
to Registrable Securities on Form S-3 (or any successor form to Form S-3
regardless of its designation) at a time when the Company is eligible to
register securities on Form S-3 (or any successor form to Form S-3 regardless of
its designation) for an offering of Registrable Securities, the Company shall
promptly give notice thereof to all holders of Registrable Securities. Each
Holder shall have the right, by giving notice to the Company within 15 days
following receipt by it of such notice from the Company, to elect to have
included in such registration such of its Registrable Securities as such Holder
shall request in such notice of election, subject to Section 3(c). The Company
shall use its reasonable best efforts to effect registration of the Registrable
Securities specified in such request and notice of election; provided that the
Company shall not be required to effect a registration pursuant to this Section
3(b) unless Holders requesting registration propose to dispose of shares of
Registrable Securities having an aggregate price to the public (before deduction
of underwriting discounts and expenses of sale) of at least $2,500,000; and
provided, further, that the Company shall not be required to effect more than
two (2) such registrations pursuant to this Section 3(b) within twelve months of
the effective date of any prior registration pursuant to this Section 3.
(c) Notwithstanding any other provision of this Agreement, the Company
shall have the right to defer the filing or effectiveness of a registration
statement relating to any registration requested under this Section 3 for a
reasonable period of time not to exceed 90 days if (A) the Company is, at such
time, working on an underwritten public offering of Common Shares and is advised
by its managing underwriter(s) that such offering would in its or their opinion
be adversely affected by such filing; or (B) a prior registration statement of
the Company was declared effective by the SEC less than 120 days prior to the
anticipated effective date of the requested registration; or (C) the Company in
good faith determines that such filing or the
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offering of any Registrable Securities would (1) materially impede, delay or
interfere with any material proposed financing, offer or sale of securities,
acquisition, corporate reorganization or other significant transaction involving
the Company or (2) require the disclosure of non-public material information,
the disclosure of which would materially and adversely affect the Company or any
such transactions contemplated by the Company.
(d) In the event that the underwriter's representative limits the number
of shares to be included in a registration pursuant to Section 3(a) or (b), each
Holder requesting registration shall be entitled to include a portion of the
Registrable Securities requested to be included in such registration pro rata
(based on the number of shares held). In such event, such registration shall not
be counted for the registration for purposes of Section 3(a) or 3(b), as the
case may be, if such registration does not include at least 90% of the
Registrable Securities requested to be included in such registration statement
pursuant to Section 3(a) or 3(b), as the case may be.
(e) A registration pursuant to Section 3(a) or (b) may include securities
other than Registrable Securities included in such registration only with the
prior consent of the holders of 50% of the Registrable Securities requesting
such registration; provided, that the Company may include its Common Stock in
such registration without such consent so long as such inclusion does not
prevent in any manner whatsoever the holders of Registrable Securities from
including in such registration all of the Registrable Securities that such
Holders elected to so include pursuant to Section 3(a) or 3(b), as the case may
be.
(f) Notwithstanding any other provision of this Agreement, Holders may
elect by written notice to the Company and the managing underwriters, if any, to
withdraw any Registrable Securities from any registration effected under this
Section 3 up to the effective date of the registration statement.
(g) The Holders agree that, in exercising their rights under Section 3,
they will permit the registration of the Registrable Securities on such forms
issued by the Commission as will minimize the Company's time and expense in
effecting such registration without affecting the liquidity afforded by such
registration or otherwise adversely affecting the Holders, in each case as
reasonably determined by the Holders. If, for example, the Holders wish to
register Registrable Securities pursuant to Section 3(a) at a time when the
Company is eligible to use Form S-3 for purposes of registering such Registrable
Securities, the Holders will permit the Company to fulfill its obligations under
Section 3(a) by effecting such registration on Form S-3; provided, however, that
nothing in this Section 3(g) will permit the Company to fulfill such obligation
by using Form ▇▇-▇, ▇▇-▇ or similar forms limited to "Small Business Issuers,"
without the consent of the holders of at least 50% of the Registrable
Securities.
SECTION 4. INCIDENTAL REGISTRATION.
(a) If the Company proposes at any time during the Effective Period to
register any shares of Common Stock or other securities issued by it having
terms substantially similar to Registrable Securities ("Other Securities") for
public sale under the Securities Act (whether proposed to be offered for sale by
the Company or by any other Person) on a Form and in a
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manner which would permit registration of Registrable Securities for sale to the
public under the Securities Act, it will give prompt written notice (which
notice shall specify the intended method or methods of disposition) to the
Holders of its intention to do so, and upon the written request of any Holder
delivered to the Company within fifteen (15) Business Days after the giving of
any such notice (which request shall specify the number of Registrable
Securities intended to be disposed of by such Holder) the Company will use all
reasonable efforts to effect, in connection with the registration of the Other
Securities, the registration under the Securities Act of all Registrable
Securities which the Company has been requested by Holders to register;
provided, however, that:
(i) if, at any time after giving such written notice of its
intention to register Other Securities and prior to the effective date of the
registration statement filed in connection with such registration, the Company
shall determine for any reason not to register such Other Securities, the
Company may, at its election, give written notice of such determination to
Holders requesting registration under Section 4(a) and thereupon the Company
shall be relieved of its obligation to register such Registrable Securities in
connection with the registration of such Other Securities (but not from its
obligation to pay Registration Expenses to the extent incurred in connection
therewith as provided in Section 12, without prejudice, however, to the rights
(if any) of Holders to request that such registration be effected as a
registration under Section 3);
(ii) the Company will not be required to effect any registration
pursuant to this Section 4 if the Company shall have been advised in writing
(with a copy to Holders) by a nationally recognized investment banking firm
selected by the Company that, in such firm's opinion, a registration of
Registrable Securities at that time may interfere with an orderly sale and
distribution of or materially and adversely affect the price of such offering;
provided, however, that if an offering of some but not all of the Registrable
Securities requested to be registered by Holders and all other Persons having
rights to include securities held by them in such registration would not
adversely affect the Company's scheduled offering in the opinion of such firm,
first, the aggregate number of shares requested to be included in such offering
by Holders other than GE, TD and their assignees and by any other Persons
exercising "piggyback" rights in such registration shall be reduced pro rata (in
accordance with the proportion that the Fair Market Value of all securities
proposed to be included in such registration by such Holders and other Persons
bears to the Fair Market Value of all securities proposed to be included in such
registration by such Holders and other Persons), and second, thereafter, if
necessary, the aggregate number of Registrable Securities requested to be
included in such offering by GE, TD and their assignees shall be reduced pro
rata in the same manner as set forth above. Unless all Registrable Securities
and such other piggybacking shares requested to be included in such registration
are so included, no other securities may be included in the registration
statement.
(iii) the Company shall not be required to give notice of, or effect
any registration of Registrable Securities under this Section 4 incidental to,
the registration of any of its securities in connection with mergers,
consolidations, acquisitions, exchange offers, subscription offers, dividend
reinvestment plans or stock options or other employee benefits or compensation
plans.
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(b) No registration of Registrable Securities effected under this Section
4 shall relieve the Company of its obligations (if any) to effect registrations
of Registrable Securities pursuant to Section 3.
(c) The obligations of the Company to register any Registrable Securities
held by Holders in accordance with this Section 4 shall expire on the last day
of the Effective Period.
SECTION 5. HOLDBACKS AND OTHER RESTRICTIONS.
Each of the Holders hereby covenants and agrees with the Company that ,
for a period of duration specified by the Company and an underwriter of Common
Stock or other securities of the Company (such period not to exceed 180 days)
following the effective date of the first registration statement of the Company
filed under the Securities Act which covers securities to be sold on the
Company's behalf to the public in an underwritten offering, it shall not, to the
extent requested by the Company and its underwriter, directly or indirectly
sell, offer to sell, contract to sell (including, without limitation, any short
sale), grant any option to purchase or otherwise transfer or dispose of (other
than to donees who agree to be similarly bound) any securities of the Company
held by it at any time during such period except Registrable Securities included
in such registration; provided, however, that such agreement shall not be
required unless all officers and directors of the Company and all other persons
with registration rights (whether or not pursuant to this Agreement) or
purchasing Common Stock of the Company enter into similar agreements. In order
to enforce the foregoing covenant, the Company may impose stop-transfer
instructions with respect to the Registrable Securities of each Holder (and the
shares or securities of every other person subject to the foregoing restriction)
until the end of such period.
SECTION 6. REGISTRATION PROCEDURES.
If and whenever the Company is required by the provisions of this
Agreement to effect or cause a registration as provided in this Agreement, the
Company:
(a) Will use its reasonable best efforts to cause such registration
statement to become and remain effective under the Securities Act until the
earlier of such time as all such Registrable Securities have been disposed of in
accordance with the method of disposition or the expiration of 150 days after
such registration becomes effective, as such period may be extended pursuant to
Section 6(h) or Section 8 hereto;
(b) Prepare and file with the SEC such amendments, post-effective
amendments and supplements to such registration statement and the prospectus
used in connection therewith as may be necessary to keep such registration
statement effective for such period of time as is necessary to complete the
offering and the distribution of the securities covered thereby (but in no event
longer than 150 days after such registration statement becomes effective) as
such period may be extended pursuant to Section 6(h) or Section 8 hereto;
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(c) Comply with the provisions of the Securities Act with respect to the
disposition of all securities covered by such registration statement during the
period during which any such registration statement is required to be in effect;
(d) Furnish to Holders and any underwriter of Registrable Securities, (i)
such number of copies (including manually executed and conformed copies) of such
registration statement and or each amendment thereof and supplement thereto
(including all annexes, appendices, schedules and exhibits), (ii) such number of
copies of the prospectus used in connection with such registration statement
(including each preliminary prospectus, any summary prospectus and the final
prospectus), and (iii) such number of copies of other documents, in each case as
Holders or such underwriter may reasonably request;
(e) Use reasonable efforts to register or qualify all Registrable
Securities covered by such registration statement under the securities or "blue
sky" laws of such jurisdictions as Holders or any underwriter shall reasonably
request, and do any and all other acts and things which may be reasonably
requested by Holders or such underwriter to consummate the offering and
disposition of Registrable Securities in such jurisdictions; provided, however,
that the Company shall not be required to qualify generally to do business as a
foreign corporation or as dealer in securities, subject itself to taxation, or
consent to general service of process in any jurisdiction wherein it is not then
so qualified or subject;
(f) Use, as soon as practicable after the effectiveness of the
registration statement, reasonable efforts to cause the Registrable Securities
covered by such registration statement to be registered with, or approved by,
such other public, governmental or regulatory authorities as may be necessary to
facilitate the disposition of such Registration Securities;
(g) Use reasonable best efforts to list the Registrable Securities covered
by such registration statement on any securities exchange on which any
securities of the Company are then listed, if the listing of such Registrable
Securities is then permitted under the rules of such exchange;
(h) Notify Holders promptly and, if requested by Holders, confirm such
notification in writing, (i) when a prospectus or any prospectus supplement has
been filed with the SEC, and, with respect to a registration statement or any
post-effective amendment thereto, when the same has been declared effective by
the SEC, (ii) of the issuance by the SEC of any stop order or the initiation of
any proceedings for such or a similar purpose, (iii) of the receipt by the
Company of any notification with respect to the suspension of the qualification
of any of the Registrable Securities for sale in any jurisdiction or the
initiation or threatening of any proceeding for such purpose, (iv) of the
occurrence of any event which requires the making of any changes to a
registration statement or related prospectus so that such documents will not
contain any untrue statement of a material fact or omit to the state any
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 (and the Company shall promptly prepare and furnish to Holders a
reasonable number of copies of a supplemented or amended prospectus such that,
as thereafter delivered to the purchasers of such Registrable Securities, such
prospectus shall not include an
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untrue statement of a material fact or omit 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 are made, not misleading), and (v) of the
Company's determination that the filing of a post-effective amendment to the
Registration Statement shall be necessary or appropriate. Upon the receipt of
any notice from the Company of the occurrence of any event of the kind described
in clause (iv) of this Section 6(h), Holders shall forthwith discontinue any
offer and disposition of Registrable Securities pursuant to the registration
statement covering such Registrable Securities until Holders shall have received
copies of a supplemented or amended prospectus which is no longer defective as
contemplated by clause (v) of this Section 6(h) and, if so directed by the
Company, shall deliver to the Company, at the Company's expense, all copies
(other than permanent file copies) of the defective prospectus covering such
Registrable Securities which are then in Holder's possession. If the Company
shall provide any notice of the type referred to in the preceding sentence, the
period during which the registration statements are required to be effective
shall be extended by the number of days from and including the date such notice
is provided, to and including the date when Holders shall have received copies
of the corrected prospectus contemplated by clause (v) of this Section 6(h);
(i) Enter into such agreements and take such other appropriate actions as
are customary and reasonably necessary to expedite or facilitate the disposition
of such Registrable Securities, and in that regard, deliver to Holders such
documents and certificates as may be reasonably requested by the Holders of a
majority in aggregate principal amount of the Registrable Securities being sold
or, as applicable, the managing underwriters, to evidence the Company's
compliance with this Agreement;
(j) Cooperate with the selling holders of Registrable Securities and the
managing underwriters, if any, to facilitate the timely preparation and delivery
of certificates representing Registrable Securities to be sold and not bearing
any restrictive legends; and enable such Registrable Securities to be in such
denominations and registered in such names as the managing underwriters may
request at least 3 days prior to any sale of Registrable Securities to the
underwriters; and
(k) Provide a transfer agent and registrar for all Registrable Securities
registered pursuant hereunder and a CUSIP number for all such Registrable
Securities, in each case not later than the effective date of such registration.
SECTION 7. UNDERWRITING.
(a) If requested by the underwriters for any underwritten offering of
Registrable Securities pursuant to a registration hereunder, the Company will
enter into and perform its obligations under an underwriting agreement with the
underwriters for such offering, such agreement to contain such representations
and warranties by the Company and such other terms and provisions as are
customarily contained in underwriting agreements with respect to secondary
distributions, including, without limitation, customary provisions relating to
indemnities and contribution and the provision of opinions of counsel and
accountants' letters. If
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Registrable Securities are to be distributed by such underwriters on behalf of
Holders, Holders shall, subject to Section 7(b), be a party to any such
underwriting agreement and the representations and warranties by, and the other
agreements on the part of, the Company to and for the benefit of such
underwriters shall also be made to and for the benefit of Holders.
Notwithstanding the foregoing, Holders may elect, prior to the effective date of
the registration statement filed in connection with such registration, not to
register such Registrable Securities in connection with any registration.
(b) If any registration pursuant to Section 4 hereof shall involve, in
whole or in part, an underwritten offering, the Company may require Registrable
Securities requested to be registered pursuant to Section 4 to be included in
such underwriting on the same terms and conditions as shall be applicable to the
securities being sold through underwriters under such registration. In such
case, Holders shall be a party to any such underwriting agreement. Such
agreement shall contain such representations and warranties by the Holders and
such other terms and provisions as are customarily contained in underwriting
agreements with respect to secondary distributions, including, without
limitation, provisions relating to indemnities and contribution. The
representations and warranties in such underwriting agreement by, and the other
agreements on the part of, the Company to and for the benefit of such
underwriters shall also be made to and for the benefit of Holders.
(c) In any offering of Registrable Securities pursuant to a registration
hereunder, Holders shall also enter into such agreements as may be customary in
such transactions, including, among other provisions, such representations and
warranties as Company or the underwriters of such offering may reasonably
request (including, without limitation, such concerning Holders, the Registrable
Securities, Holder's intended plan of distributions and any other information
supplied by the Holders to Company for use in such registration statement), and
customary provisions relating to indemnities and contribution.
(d) It shall be a condition precedent of the Company's obligations under
Section 3 and 4 of this Agreement to any Holder that such Holder furnish to the
Company such information regarding the Holder, the Registrable Securities held
by it and the distribution proposed by the Holder as the Company may reasonably
request to effect any such registration and as are customarily provided by
selling stockholders.
(e) The Company shall have no obligation with respect to any registration
requested pursuant to Section 3(a) or 3(b) hereof if, due to the failure of any
Holder or Holders to provide the information requested pursuant to this Section
7, the number of shares or the anticipated aggregate offering price of the
Registrable Securities to be included in the registration does not equal or
exceed the number of shares or the anticipated aggregate offering price required
to originally trigger the Company's obligation to initiate such registration as
specified in Section 3(a) or 3(b), as applicable.
SECTION 8. INFORMATION BLACKOUT.
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(a) At any time when a registration statement effected pursuant to Section
3(b) relating to Registrable Securities is effective, upon written notice from
the Company to Holders that the Company has determined in good faith that sale
of Registrable Securities pursuant to the registration statement would require
disclosure of non-public material information having an adverse effect on the
Company (an "Information Blackout"), Holders shall suspend sales of Registrable
Securities pursuant to such registration statement until the earlier of:
(i) 60 days after the Company make such good faith determination,
and
(ii) such time as the Company notifies the Holders that such
material information has been disclosed to the public or has ceased to be
material or that sales pursuant to such registration statement may otherwise be
resumed (the number of days from such suspension of sales by the Holders until
the day when such sale may be resumed hereunder is hereinafter called a "Sales
Blackout Period").
(b) Any delivery by the Company of notice of an Information Blackout
during the forty-five (45) days immediately following effectiveness of any
registration statement effected pursuant to Section 3(b) hereof shall give the
holders of a majority of the Registrable Securities being sold the right, by
written notice to the Company within twenty (20) Business Days after the end of
such Information Blackout Period, to cancel such registration, in which event
Holders shall have one additional registration right under Section 3(b) in such
fiscal year.
(c) If there is an Information Blackout and the cancellation right, if
any, pursuant to (b) above, is not available or exercised, the time period set
forth in Section 6(a) shall be extended for a number of days equal to the number
of days in the Sales Blackout Period.
SECTION 9. RULE 144.
The Company shall take all actions reasonably necessary to comply with the
filing requirements described in Rule 144(c)(1) so as to enable Holders to sell
Registrable Securities without registration under the Securities Act.
SECTION 10. PREPARATION; REASONABLE INVESTIGATION, INFORMATION.
In connection with the preparation and filing of each registration
statement registering Registrable Securities under the Securities Act, (a) the
Company will give Holders and the underwriters, if any, and their respective
counsel and accountants, drafts of such registration statements for their review
and comment prior to filing and such reasonable and customary access to its
books and records and such opportunities to discuss the business of the Company
with its officers and the independent public accountants who have certified its
financial statements as shall be necessary, in the opinion of Holders and such
underwriters or their respective counsel, to conduct a reasonable investigation
within the meaning of the Securities Act and (b) as a condition precedent to
including any Registrable Securities of Holders in any such registration, the
Company may require the Holders to furnish the Company such
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information regarding the Holders and the distribution of such securities as the
Company from time to time reasonably request in writing or as shall be required
by law or the SEC in connection with any registration.
SECTION 11. INDEMNIFICATION AND CONTRIBUTION.
(a) In the case of each offering of Registrable Securities made pursuant
to this Agreement, the Company shall indemnify and hold harmless each Holder,
its officers and directors, each underwriter of Registrable Securities so
offered and each person, if any, who controls any of the foregoing persons
within the meaning of the Securities Act ("Holder Indemnitees"), from and
against any and all claims, liabilities, losses, damages, expenses and
judgments, joint or several, to which they or any of them may become subject,
under the Securities Act or otherwise, including any amount paid in settlement
of any litigation commenced or threatened, and shall promptly reimburse them, as
and when incurred, for any legal or other expenses incurred by them in
connection with investigating any claims and defending any actions, insofar as
such losses, claims, damages, liabilities or actions shall arise out of, or
shall be based upon, any untrue statement or alleged untrue statement of a
material fact contained in the registration statement (or in any preliminary or
final prospectus included therein) relating to the offering and sale of such
Registrable Securities, or any amendment thereof or supplement thereto, or in
any document incorporated by reference therein, or any omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, or shall arise out of
or shall be based upon any violation or alleged violation by the Company of the
Securities Act, any blue sky laws, securities laws or other applicable laws of
any state or country in which the Registrable Securities are offered and
relating to action or inaction required of the Company in connection with such
offering; provided, that the Company shall not be liable to any Holder
Indemnitee in any such case to the extent that any such loss, claim, damage,
liability or action arises out of, or is based upon, any untrue statement or
alleged untrue statement, or any omission, if such statement or omission shall
have been made in reliance upon and in conformity with information furnished to
the Company in writing by or on behalf of such Holder for use in the preparation
of the registration statement (or in any preliminary or final prospectus
included therein), or any amendment thereof or supplement thereto. Such
indemnity shall remain in full force and effect regardless of any investigation
made by or on behalf of Holders and shall survive the transfer of such
securities. The foregoing indemnity agreement is in addition to any liability
which the Company may otherwise have to any Holder Indemnitee.
(b) In the case of each offering of Registrable Securities made pursuant
to this Agreement, each Holder shall indemnify and hold harmless the Company,
its officers and directors and each person, if any who controls any of the
foregoing within the meaning of the Securities Act and (if requested by the
underwriters) each underwriter who participates in the offering and each person,
if any, who controls any such underwriter within the meaning of the Securities
Act (the "Company Indemnitees"), from and against any and all claims,
liabilities, losses, damages, expenses and judgments, joint or several, to which
they or any of them may become subject, under the Securities Act or otherwise,
including any amount paid in settlement of any litigation commenced or
threatened, and shall promptly reimburse them, as and when
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incurred, for any legal or other expenses incurred by them in connection with
investigating any claims and defending any actions, insofar as any such losses,
claims, damages, liabilities or actions shall arise out of, or shall be based
upon, any untrue statement or alleged untrue statement of a material fact
contained in the registration statement (or in any preliminary or final
prospectus included therein) or any amendment thereof or supplement thereto, or
any omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, but
in each case only to the extent that such untrue statement is contained in, or
such fact is omitted from, information furnished in writing to the Company by or
on behalf of such Holder for use in the preparation of such registration
statement (or in any preliminary or final prospectus included therein). The
foregoing indemnity is in addition to any liability which Holders may otherwise
have to any Company Indemnitee.
(c) Each party indemnified under this Agreement shall, promptly after
receipt of notice of any claim or other commencement of any action against such
indemnified party in respect of which indemnity may be sought, notify the
indemnifying party in writing of the claim or the commencement thereof;
provided, that the failure to notify the indemnifying party shall not relieve
the indemnifying party from any liability which it may have to an indemnified
party on account of the indemnity agreement contained in this Agreement, unless
the indemnifying party was prejudiced by such failure, and in no event shall it
relieve the indemnifying party from any other liability which it may have to
such indemnified party. If any such claim or action shall be brought against an
indemnified party, and it shall notify the indemnifying party thereof, the
indemnifying party shall be entitled to participate therein, and, to the extent
that it wishes, jointly with any other similarly notified indemnifying party, to
assume the defense of such a claim or action, and the indemnifying party shall
not be liable to the indemnified party under this Section 11 for any legal or
other expenses subsequently incurred by the indemnified party in connection with
the defense thereof other than reasonable costs of investigation; provided, that
the Holder Indemnitees shall have the right to employ one separate counsel to
represent them if, in the reasonable judgment of Holder or such other person, it
is advisable (by reason of actual or potential legal conflicts of interest) for
them to be represented by separate counsel, and in that event the fees and
expenses of such separate counsel shall be paid by the Company. If the Holder
Indemnitees employ such separate counsel they will not enter into any settlement
agreement which is not approved by the Company, such approval will not be
unreasonably withheld. If the indemnifying party so assumes the defense thereof,
it may not agree to any settlement of any such claim or action as the result of
which any remedy or relief, other than monetary damages for which the
indemnifying party shall be responsible hereunder, shall be applied to or
against the indemnified party, without the prior written consent of the
indemnified party. If the indemnifying party does not assume the defense
thereof, it shall be bound by any settlement to which the indemnified party
agrees, irrespective of whether the indemnifying party consents thereto. In any
action hereunder as to which the indemnifying party has assumed the defense
thereof with counsel satisfactory to the indemnified party, the indemnified
party shall continue to be entitled to participate in the defense thereof, with
counsel of its own choice, but, except as set forth above, the indemnifying
party shall not be obligated hereunder to reimburse the indemnified party for
the costs thereof.
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(d) If the indemnification agreements contained in Sections 11(a) and (b)
are unavailable to an indemnified party in respect of any losses, claims,
damages or liabilities referred to therein, each indemnifying party under such
paragraphs, in lieu of indemnifying such indemnified party thereunder, shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages or liabilities (i) in such proportion as is
appropriate to reflect not only the relative benefits received by the Company,
Holders and each underwriter from the offering of Registrable Securities, but
also the relative fault of the Company, Holders and each underwriter in
connection with the statements or omissions which resulted in such losses,
claims, damages or liabilities, as well as any other relevant equitable
considerations or (ii) if the allocation provided by clause (i) above is not
permitted by applicable law, in such proportion as is appropriate to reflect the
relative benefits received by the Company, Holders and each underwriter from the
offering of Registrable Securities. The relative benefits received by the
Company, Holders and each underwriter shall be deemed to be in the same
respective proportions as the net proceeds from the offering (before deducting
expenses) received by the Company and Holders and the total underwriting
discounts and commissions received by each underwriter. The relative fault of
the Company, Holders and each underwriter 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, Holders or an underwriter and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission. The amount paid or payable by an indemnified
party as a result of the loss, claim, damage or liability, or action in respect
thereof, referred to above in this paragraph shall be deemed to include, for
purposes of this paragraph, any legal or other expenses reasonably incurred by
such indemnified party in connection with investigating or defending any such
action or claim. No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation.
(e) The Company and Holders agree that it would not be just and equitable
if contribution were determined by pro rata allocation or by any other method of
allocation which does not take account of the equitable considerations referred
to in Section 11(d).
SECTION 12. EXPENSES.
In connection with any registration under Section 3 or Section 4, the
Company shall pay all Registration Expenses; provided that Holders shall pay his
or its pro rata share of the Selling Expenses.
SECTION 13. NOTICES.
Except as otherwise provided below, whenever it is provided in this
Agreement that any notice, demand, request, consent, approval, declaration or
other communication shall or maybe given to or served upon either of the parties
hereto, or whenever either of the parties hereto, desires to provide to or serve
upon the other party any other communication with respect to this Agreement,
each such notice, demand, request, consent, approval, declaration or other
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communication shall be in writing and either shall be delivered in person or
sent by telecopy, addressed as follows:
(a) If to the Company, to:
▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇. Inc.
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Esq.
Phone:
Fax:
And:
Rifkin, Livingston, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Esq.
Phone:
Fax:
(b) If to Holders, to:
Medical Advisory Systems, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
And:
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Premier Research Worldwide, Ltd.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
And:
▇▇▇▇▇▇-▇▇▇▇▇▇▇▇▇ Capital Focus II, L.P.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
And:
TD Origen Capital Fund, L.P.
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇, ▇▇ ▇▇▇▇▇
Attn: J. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
And:
TD Javelin Capital Fund, L.P.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
And:
GE Equity Investments, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: General Counsel
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to:
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Law Offices of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
And:
Fried, Frank, Harris, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇ ▇▇▇▇, Esq.
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
or at such other address as may be substituted by notice delivered as provided
herein. The furnishing of any notice required hereunder may be waived in writing
by the party entitled to receive such notice. Every notice, demand, request,
consent, approval, declaration or other communication hereunder shall be deemed
to have been duly furnished or served on the party to which it is addressed, in
the case of delivery in person or by telecopy, on the date when sent (with
receipt personally acknowledged in the case of telecopied notice). Failure or
delay in delivering copies of any notice, demand, request, consent, approval,
declaration or other communication to the persons designated above to receive
copies shall in no way adversely affect the effectiveness of such notice,
demand, request, consent, approval, declaration or other communication.
SECTION 14. ENTIRE AGREEMENT.
This Agreement represents the entire agreement and understanding among the
parties hereto with respect to the subject matter hereof and supersedes any and
all prior oral and written agreements, arrangements and understandings among the
parties hereto with respect to such subject matter, including, without
limitation, the Old Registration Rights Agreement; and this Agreement can be
amended, supplemented or changed, and any provision hereof can be waived, only
by a written instrument making specific reference to this Agreement signed by
Company and the holders of 66 2/3% of the Registrable Securities.
SECTION 15. PARAGRAPH HEADINGS.
The purpose of paragraph headings contained in this Agreement are for
general reference purposes only and shall not affect in any manner the meaning,
interpretation or construction of the terms or other provisions of this
Agreement.
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SECTION 16. APPLICABLE LAW.
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK WITHOUT GIVING EFFECT TO THE PRINCIPLES OF
CONFLICTS OF LAW. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY AND
UNCONDITIONALLY CONSENTS TO SUBMIT TO THE EXCLUSIVE JURISDICTION OF THE COURTS
OF THE STATE OF NEW YORK AND OF THE UNITED STATES OF AMERICA, IN EACH CASE
LOCATED IN THE COUNTY OF NEW YORK, FOR ANY ACTION, PROCEEDING OR INVESTIGATION
IN ANY COURT OR BEFORE ANY GOVERNMENTAL AUTHORITY ("LITIGATION") ARISING OUT OF
OR RELATING TO THIS AGREEMENT AND THE TRANSACTIONS CONTEMPLATED HEREBY (AND
AGREES NOT TO COMMENCE ANY LITIGATION RELATING THERETO EXCEPT IN SUCH COURTS),
AND FURTHER AGREES THAT SERVICE OF ANY PROCESS, SUMMONS, NOTICE OR DOCUMENT BY
U.S. REGISTERED MAIL TO ITS RESPECTIVE ADDRESS SET FORTH IN THIS AGREEMENT SHALL
BE EFFECTIVE SERVICE OF PROCESS FOR ANY LITIGATION BROUGHT AGAINST IT IN ANY
SUCH COURT. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY AND UNCONDITIONALLY
WAIVES ANY OBJECTION TO THE LAYING OF VENUE OF ANY LITIGATION ARISING OUT OF
THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY IN THE COURTS OF THE
STATE OF NEW YORK OR THE UNITED STATES OF AMERICA, IN EACH CASE LOCATED IN THE
COUNTY OF NEW YORK, AND HEREBY FURTHER IRREVOCABLY AND UNCONDITIONALLY WAIVES
AND AGREES NOT TO PLEAD OR CLAIM IN ANY SUCH COURT THAT ANY SUCH LITIGATION
BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM. EACH OF THE
PARTIES IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED
BY APPLICABLE LAW, ANY AND ALL RIGHTS TO TRIAL BY JURY IN CONNECTION WITH ANY
LITIGATION ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY.
SECTION 17. SEVERABILITY.
If at any time subsequent to the date hereof, any provision of this
Agreement shall be held by any court of competent jurisdiction to be illegal,
void or unenforceable, such provision shall be of no force and effect, but the
illegality or unenforceability of such provision shall have no effect upon and
shall not impair the enforceability of any other provision of this Agreement.
SECTION 18. EQUITABLE REMEDIES.
The parties hereto agree that irreparable harm would occur in the event
that any of the agreements and provisions of this Agreement were not performed
fully by the parties hereto in accordance with their specific terms or
conditions or were otherwise breached, and that money damages are an inadequate
remedy for breach of this Agreement because of the difficulty of ascertaining
and quantifying the amount of damage that will be suffered by the parties hereto
in the event that this Agreement is not performed in accordance with the terms
and conditions or its
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otherwise breached. It is accordingly hereby agreed that the parties hereto
shall be entitled to an injunction or injunctions to restrain enjoin and prevent
breaches of this Agreement by the other parties and to enforce specifically the
terms and provisions hereof in any court of the United States or any state
having jurisdiction, such remedy being in addition to and not in lieu of, any
other rights and remedies to which the other parties are entitled to at law or
in equity.
SECTION 19. NO WAIVER.
The failure of any party at any time to require performance of any
provision hereof shall not affect the right at a later time to enforce the same.
No waiver by any party of any condition, and no breach of any provision, term,
covenant, representation or warranty contained in this Agreement, whether by
conduct or otherwise, in any one or more instances, shall be deemed to be
construed as a further or continuing waiver of any such condition or of the
breach of any other provision, term, covenant, representation or warranty of
this Agreement.
SECTION 20. COUNTERPARTS.
This Agreement may be executed in two or more counterparts, each of which
shall be deemed an original, but all of which together shall constitute but one
and the same original instrument.
SECTION 21. NO INCONSISTENT AGREEMENTS.
Without the prior consent of the holders of 66 2/3% of the Registrable
Securities, Company will not enter into any agreement which conflicts with or is
inconsistent with the terms and provisions hereof, unless under the terms of
such agreement, such prospective holder may include such securities in any such
registration only to the extent that the inclusion of such securities will not
reduce the amount of the Registrable Securities of the Holders which are
included.
SECTION 22. SUCCESSORS AND ASSIGNS.
This Agreement shall inure to the benefit of and be binding upon the
successors and assigns of each of the parties, including without limitation and
without need for an express assignment, any subsequent holder of Registrable
Securities.
(CONTINUED NEXT PAGE)
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IN WITNESS WHEREOF, this Agreement has been executed and delivered as of
the date first above written.
▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇. INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, M.D.
------------------------------------
Its: CEO
MEDICAL ADVISORY SYSTEMS, INC.
By: /s/ ▇▇▇ ▇▇▇▇▇▇▇
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Its: President
PREMIER RESEARCH WORLDWIDE, LTD.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
------------------------------------
Its: CEO
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TD ORIGEN CAPITAL FUND, L.P.
By: TD II Regional Partners, Inc.,
its general partner
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇,
Vice President
TD JAVELIN CAPITAL FUND, L.P.
By: JVP, L.P., its general partner
By: JVP, Inc., its general partner
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇,
Vice President
GE CAPITAL EQUITY INVESTMENTS, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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THE WYNDHURST CAPITAL GROUP, LLC
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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