QUINTILES TRANSNATIONAL CORP.
$450,000,000 10% SENIOR SUBORDINATED NOTES DUE 2013
REGISTRATION RIGHTS AGREEMENT
New York, New York
September 25, 2003
Citigroup Global Markets Inc.
As Representatives of the Initial Purchasers
named in Schedule I hereto
c/o Citigroup Global Markets Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
Quintiles Transnational Corp., a corporation organized under
the laws of the State of North Carolina ("Quintiles"), proposes, among other
things, to issue and sell to the several initial purchasers named in Schedule I
hereto (the "Initial Purchasers"), for whom you are acting as representatives
(the "Representatives"), $450,000,000 aggregate principal amount of its 10%
Senior Subordinated Notes due 2013 (the "Notes") upon the terms set forth in a
purchase agreement dated September 12, 2003 (the "Purchase Agreement") relating
to the initial placement of the Notes (the "Initial Placement"). The Notes are
being issued in connection with the consummation of the merger of Pharma
Services Acquisition Corp., a North Carolina corporation ("Acquisition Corp"),
with and into Quintiles, as described in the Final Memorandum (as defined
herein). The Notes will be guaranteed (the "Guarantees") on an unsecured senior
subordinated basis by all of the subsidiaries of Quintiles that are organized in
the United States and, as required under the Indenture (as defined herein), any
future domestic subsidiaries and any subsidiary that guarantees Quintiles' or
any of its domestic subsidiaries' debt (collectively, the "Subsidiary
Guarantors"). References herein to the "Securities" refer to the Notes and the
Guarantees collectively. To induce the Initial Purchasers to enter into the
Purchase Agreement and to satisfy a condition of your obligations thereunder,
the Issuers (as defined herein) hereby agree with you for your benefit and the
benefit of the registered holders from time to time of Securities and Exchange
Securities (as defined herein) (including the Initial Purchasers) (each a
"Holder" and, together, the "Holders" for as long as such Person holds
Securities), as follows:
1. Definitions. Capitalized terms used herein without
definition shall have their respective meanings set forth in the Purchase
Agreement. As used in this Agreement, the following defined terms shall have the
following respective meanings:
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"Act" shall mean the Securities Act of 1933, as amended.
"Affiliate" of, or Person "affiliated" with, any specified
Person shall mean any Person that directly, or indirectly through one or more
intermediaries, controls, is controlled by, or is under common control with,
such specified Person. For purposes of this definition, "control" of a Person
shall mean the possession, direct or indirect, of the power to direct or cause
the direction of the management and policies of such Person, whether through the
ownership of voting securities, by contract or otherwise; and the terms
"controlling" and "controlled by" and "under common control with" shall have
meanings correlative to the foregoing.
"Agreement" shall have the meaning set forth in the preamble
hereto.
"Banc One" means Banc One Capital Markets, Inc., an Initial
Purchaser named in Schedule I hereto.
"Broker-Dealer" shall mean any broker or dealer registered as
such under the Exchange Act.
"Business Day" shall mean any day other than a Saturday, a
Sunday or a legal holiday or a day on which banking institutions or trust
companies are authorized or obligated by law to close in New York City.
"Commission" shall mean the Securities and Exchange
Commission.
"Conduct Rules" shall have the meaning set forth in Section
4(t) hereof.
"Exchange Act" shall mean the Securities Exchange Act of 1934,
as amended.
"Exchange Offer Registration Period" shall mean the up to
90-day period following the consummation of the Registered Exchange Offer,
exclusive of any period during which any stop order shall be in effect
suspending the effectiveness of the Exchange Offer Registration Statement.
"Exchange Offer Registration Statement" shall mean a
registration statement of the Issuers on an appropriate form under the Act with
respect to the Registered Exchange Offer, all amendments and supplements to such
registration statement, including post-effective amendments thereto, in each
case including the Prospectus contained therein, all exhibits thereto and all
material incorporated by reference therein.
"Exchange Securities" shall mean debt securities of the
Issuers identical in all material respects to the Securities (except that the
additional interest provisions, the transfer
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restrictions and the restrictive legends shall be modified or eliminated, as
appropriate) and to be issued under the Indenture.
"Exchanging Dealer" shall mean any Holder (which may include
any Initial Purchaser) that is a Broker-Dealer and elects to exchange any
Securities that it acquired for its own account as a result of market-making
activities or other trading activities (but not directly from any Issuer or any
Affiliate of any Issuer) for Exchange Securities.
"Final Memorandum" shall have the meaning set forth in the
Purchase Agreement.
"Guarantees" shall have the meaning set forth in the preamble
hereto.
"Holder(s)" shall have the meaning set forth in the preamble
hereto.
"Indenture" shall mean the Indenture relating to the
Securities, to be dated as of the original issuance of the Securities, among the
Issuers and ▇▇▇▇▇ Fargo Bank Minnesota, N.A., as trustee, as amended, amended
and restated or supplemented from time to time in accordance with the terms
thereof.
"Initial Placement" shall have the meaning set forth in the
preamble hereto.
"Initial Purchasers" shall have the meaning set forth in the
preamble hereto.
"Inspector" shall have the meaning set forth in Section
4(q)(ii).
"Issuers" shall mean Quintiles and the Subsidiary Guarantors.
"Losses" shall have the meaning set forth in Section 6(d)
hereof.
"Majority Holders" shall mean the Holders of a majority of the
aggregate principal amount of Securities and Exchange Securities, as the case
may be, registered under a Registration Statement.
"Managing Underwriters" shall mean the investment banker or
investment bankers and manager or managers that shall administer an underwritten
offering.
"Notes" shall have the meaning set forth in the preamble
hereto.
"Person" shall mean an individual, trustee, corporation,
partnership, limited liability company, joint stock company, trust,
unincorporated association, union, business association, firm or other legal
entity.
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"Prospectus" shall mean the prospectus included in any
Registration Statement (including, without limitation, a prospectus that
discloses information previously omitted from a prospectus filed as part of an
effective registration statement in reliance upon Rule 430A under the Act), as
amended or supplemented by any prospectus supplement, with respect to the terms
of the offering of any portion of the Securities or the Exchange Securities
covered by such Registration Statement, and all amendments and supplements
thereto and all material incorporated by reference therein.
"Purchase Agreement" shall have the meaning set forth in the
preamble hereto.
"Quintiles" shall have the meaning set forth in the preamble
hereto.
"Registered Exchange Offer" shall mean the proposed offer of
the Issuers to issue and deliver to the Holders of the Securities that are not
prohibited by any law or policy of the Commission from participating in such
offer a like aggregate principal amount of Exchange Securities in exchange for
the Securities.
"Registration Default" shall have the meaning set forth in
Section 3(c).
"Registration Default Period" shall have the meaning set forth
in Section 3(c).
"Registration Statement" shall mean any Exchange Offer
Registration Statement or Shelf Registration Statement that covers any of the
Securities or the Exchange Securities pursuant to the provisions of this
Agreement, any amendments and supplements to such registration statement,
including post-effective amendments (in each case including the Prospectus
contained therein), all exhibits thereto and all material incorporated by
reference therein.
"Representatives" shall have the meaning set forth in the
preamble hereto.
"Securities" shall mean the Notes and the Guarantees.
"Shelf Registration" shall mean a registration effected
pursuant to Section 3 hereof.
"Shelf Registration Period" shall have the meaning set forth
in Section 3(b)(ii) hereof.
"Shelf Registration Statement" shall mean a "shelf"
registration statement of the Issuers prepared and filed with the Commission
pursuant to the provisions of Section 3 hereof which covers some or all of the
Securities or Exchange Securities, as applicable, on an appropriate form under
Rule 415 under the Act, or any successor or similar rule that may be adopted by
the Commission, amendments and supplements to such registration statement,
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including post-effective amendments, in each case including the Prospectus
contained therein, all exhibits thereto and all material incorporated by
reference therein.
"Subsidiary Guarantors" shall have the meaning set forth in
the preamble hereto.
"Trustee" shall mean the trustee with respect to the
Securities under the Indenture.
"underwriter" shall mean any Person deemed an "underwriter,"
under the Act, of Securities or Exchange Securities in connection with an
offering thereof under a Shelf Registration Statement.
2. Registered Exchange Offer. (a) To the extent not
prohibited by any applicable law or any applicable interpretation or any
applicable policy of the staff of the Commission, (i) the Issuers shall use
their reasonable best efforts to prepare and, not later than 180 days following
the Closing Date (or if such 180th day is not a Business Day, the next
succeeding Business Day), file with the Commission the Exchange Offer
Registration Statement with respect to the Registered Exchange Offer and (ii)
the Issuers shall use their respective reasonable best efforts to cause the
Exchange Offer Registration Statement to become effective under the Act not
later than 270 days following the Closing Date (or if such 270th day is not a
Business Day, the next succeeding Business Day).
(b) Upon the effectiveness of the Exchange Offer
Registration Statement, the Issuers shall promptly commence the Registered
Exchange Offer, it being the objective of such Registered Exchange Offer to
enable each Holder electing to exchange Securities for Exchange Securities
(assuming that such Holder is not an Affiliate of any Issuer, acquires the
Exchange Securities in the ordinary course of such Holder's business, is not
engaged in and does not intend to engage in and has no arrangements or
understandings with any Person to participate in the distribution of the
Exchange Securities, is not a broker-dealer tendering Securities directly
acquired from any Issuer for its own account and is not prohibited by any law,
interpretation or policy of the Commission from participating in the Registered
Exchange Offer) to trade such Exchange Securities from and after their receipt
without any limitations or restrictions under the Act and under state securities
or blue sky laws.
(c) In connection with the Registered Exchange Offer, the
Issuers shall:
(i) mail to each Holder a copy of the Prospectus forming
part of the Exchange Offer Registration Statement, together with an
appropriate letter of transmittal and related documents;
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(ii) keep the Registered Exchange Offer open for not less
than 30 days after the date notice thereof is mailed to the Holders (or
longer if required by applicable law);
(iii) if the Issuers receive notice from an Exchanging
Dealer that such Exchanging Dealer holds Securities acquired for the
account of such Exchanging Dealer as a result of market making or other
trading activities, use their respective reasonable best efforts to
keep the Exchange Offer Registration Statement continuously effective
under the Act, supplemented and amended as required under the Act to
ensure that it is available for sales of Exchange Securities by
Exchanging Dealers during the Exchange Offer Registration Period;
(iv) utilize the services of a depositary for the
Registered Exchange Offer with an address in the Borough of Manhattan
in New York City, which may be the Trustee or an Affiliate of the
Trustee;
(v) permit Holders to withdraw tendered Securities at any
time prior to the close of business, New York City time, on the last
Business Day on which the Registered Exchange Offer is open by sending
to the entity specified in the Prospectus, a facsimile or letter
setting forth the name of such Holder, the principal amount of the
Securities delivered for exchange and a statement that such Holder is
withdrawing such Holder's election to have such Securities exchanged;
(vi) prior to effectiveness of the Exchange Offer
Registration Statement, if requested by the Commission, provide a
supplemental letter to the Commission (A) stating that the Issuers are
conducting the Registered Exchange Offer in reliance on the position of
the Commission in Exxon Capital Holdings Corporation (pub. avail. May
13, 1988) and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and Co. Incorporated (pub. avail. June 5,
1991); and (B) including a representation that the Issuers have not
entered into any arrangement or understanding with any Person to
distribute the Exchange Securities to be received in the Registered
Exchange Offer and that, to the best of the Issuers' information and
belief, each Holder participating in the Registered Exchange Offer is
acquiring the Exchange Securities in the ordinary course of business
and has no arrangement or understanding with any Person to participate
in the distribution of the Exchange Securities; and
(vii) comply in all material respects with all applicable
laws relating to the Registered Exchange Offer.
(d) Promptly after the close of the Registered Exchange
Offer, the Issuers shall:
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(i) accept for exchange all Securities validly tendered
and not validly withdrawn pursuant to the Registered Exchange Offer in
accordance with the terms of the Exchange Offer Registration Statement
and letter of transmittal, which shall be an exhibit thereto;
(ii) deliver to the Trustee for cancellation in accordance
with Section 4(r) hereof all Securities so accepted for exchange; and
(iii) cause the Trustee promptly to authenticate and
deliver to each Holder of Securities a principal amount of Exchange
Securities equal to the principal amount of the Securities of such
Holder so accepted for exchange; provided that in the case of any
Securities held in global form by a depository, authentication and
delivery to such depository of one or more replacement Securities in
global form in an equivalent amount thereto for the account of such
Holders in accordance with the Indenture shall satisfy such
authentication and delivery requirement.
(e) Each Holder, by tendering Securities for exchange for
Exchange Securities, acknowledges and agrees that any Broker-Dealer and any such
Holder using the Registered Exchange Offer to participate in a distribution of
the Exchange Securities (x) could not under Commission policy as in effect on
the date of this Agreement rely on the position of the Commission in ▇▇▇▇▇▇
▇▇▇▇▇▇▇ and Co. Incorporated (pub. avail. June 5, 1991) and Exxon Capital
Holdings Corporation (pub. avail. May 13, 1988), as interpreted in Shearman &
Sterling (pub. avail. July 2, 1993) and similar no-action letters; and (y) must
comply with the registration and prospectus delivery requirements of the Act in
connection with any secondary resale transaction and must be covered by an
effective registration statement containing the selling security holder
information required by Items 507 and 508 of Regulation S-K, as applicable,
under the Act if the resales are of Exchange Securities obtained by such Holder
in exchange for Securities acquired by such Holder directly from any Issuer or
one of its Affiliates. Accordingly, each Holder participating in the Registered
Exchange Offer shall be required to represent to the Issuers in writing (which
may be contained in the letter of transmittal contemplated by the Registered
Exchange Offer) that, at the time of the consummation of the Registered Exchange
Offer:
(i) any Exchange Securities received by such Holder will
be acquired in the ordinary course of business;
(ii) such Holder will have no arrangement or understanding
with any Person to participate in the distribution of the Securities or
the Exchange Securities within the meaning of the Act; and
(iii) such Holder is not an Affiliate of any Issuer.
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(f) If any Initial Purchaser determines that it is not
eligible to participate in the Registered Exchange Offer with respect to the
exchange of Securities constituting any portion of an unsold allotment, at the
written request of such Initial Purchaser, the Issuers shall issue and deliver
to such Initial Purchaser or the Person purchasing Exchange Securities
registered under a Shelf Registration Statement as contemplated by Section 3
hereof from such Initial Purchaser, in exchange for such Securities, or Exchange
Securities, as the case may be, a like principal amount of the Securities (the
"Private Exchange Securities") of Quintiles that are identical in all material
respects to the Exchange Securities except for the placement of a restrictive
legal legend on such Private Exchange Securities. The Issuers shall use their
respective reasonable best efforts to cause the CUSIP Service Bureau to issue
the same CUSIP number for such Private Exchange Securities as for Exchange
Securities issued pursuant to the Registered Exchange Offer.
3. Shelf Registration. (a) If (i) Banc One notifies
Quintiles in writing that it reasonably believes it or any of its affiliates is
required by applicable law or the Commission's policy to deliver a Prospectus in
connection with market-making resales of the Securities; (ii) due to any change
in law, applicable interpretations thereof or changes in policy by the
Commission's staff, the Issuers determine upon advice of their outside counsel
that they are not permitted to effect the Registered Exchange Offer as
contemplated by Section 2 hereof; (iii) for any other reason the Exchange Offer
Registration Statement is not declared effective within 270 days, or the
Registered Exchange Offer is not consummated within 300 days, after the Issue
Date; or (iv) prior to the 20th day following consummation of the Registered
Exchange Offer the Company receives written notice that (A) any Initial
Purchaser so requests with respect to Securities (or Private Exchange
Securities) that are not eligible to be exchanged for Exchange Securities in the
Registered Exchange Offer and that are held by it following consummation of the
Registered Exchange Offer; (B) any Holder (other than an Initial Purchaser or
Exchanging Dealer) is not eligible to participate in the Registered Exchange
Offer; or (C) in the case of any Initial Purchaser that participates in the
Registered Exchange Offer or acquires Private Exchange Securities pursuant to
Section 2(f) hereof, such Initial Purchaser does not receive freely tradeable
Exchange Securities in exchange for Securities constituting any portion of an
unsold allotment (it being understood that (x) the requirement that an Initial
Purchaser deliver a Prospectus containing the information required by Items 507
and 508 of Regulation S-K, as applicable, under the Act in connection with sales
of Exchange Securities acquired in exchange for such Securities shall result in
such Exchange Securities being not "freely tradeable"; and (y) the requirement
that an Exchanging Dealer deliver a Prospectus in connection with sales of
Exchange Securities acquired in the Registered Exchange Offer in exchange for
Securities acquired as a result of market-making activities or other trading
activities shall not result in such Exchange Securities being not "freely
tradeable"), the Issuers shall effect a Shelf Registration Statement in
accordance with Section 3(b) hereof. For all purposes of this Agreement, the
obligation to have a Shelf Registration Statement declared effective under
Section 3(a)(iv) shall be deemed to arise as set forth in Section 3(b)(i). The
obligation to file a Shelf Registration Statement
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under Section 3(a)(iv) shall be deemed to arise on the later of the 180th day
after the Issue Date or the day the Company receives notice relating to a
Section 3(a)(iv) Shelf Registration Statement.
(b) (i) The Issuers shall as promptly as reasonably
practicable (but in no event more than 30 days after so required or requested
pursuant to Section 3(a)(i), (ii) or (iii) and no later than the later of the
60th day after so required pursuant to Section 3(a)(iv) or the 180th day after
the Issue Date), file with the Commission, and thereafter shall use their
respective reasonable best efforts to cause to be declared effective under the
Act (within 180 days after so required or requested pursuant to Section 3(a)(i),
(ii) or (iii) or within 60 days of the filing date of a Shelf Registration
Statement required or requested pursuant to Section 3(a)(iv)), a Shelf
Registration Statement relating to the offer and sale of the Securities or the
Exchange Securities, as applicable, by the Holders thereof from time to time in
accordance with the methods of distribution elected by a majority of such
Holders and set forth in such Shelf Registration Statement; provided, however,
that nothing in this Section 3(b) shall require the filing of a Shelf
Registration Statement prior to the deadline for filing the Exchange Offer
Registration Statement set forth in Section 2(a); provided, further, that a
Shelf Registration Statement requested pursuant to Section 3(a)(i) shall be
declared effective no later than the first business day following the
consummation of the Registered Exchange Offer; provided, further, that no
Holder (other than an Initial Purchaser) shall be entitled to have the
Securities held by it covered by such Shelf Registration Statement unless such
Holder agrees in writing to be bound by all of the provisions of this Agreement
applicable to such Holder; and provided, further, that with respect to Exchange
Securities or Private Exchange Securities received by an Initial Purchaser in
exchange for Securities constituting any portion of an unsold allotment, the
Issuers may, if permitted by current interpretations by the Commission's staff,
file a post-effective amendment to the Exchange Offer Registration Statement
containing the information required by Items 507 and 508 of Regulation S-K, as
applicable, in satisfaction of their obligations under this subsection with
respect thereto, and any such Exchange Offer Registration Statement, as so
amended, shall be referred to herein as, and governed by the provisions herein
applicable to, a Shelf Registration Statement.
(ii) The Issuers shall use their respective reasonable
best efforts to keep the Shelf Registration Statement continuously effective,
supplemented and amended as required by the Act, in order to permit the
Prospectus forming part thereof to be usable by Holders for a period of two
years from the original issuance date of the Securities or such shorter period
that will terminate when all the Securities or Exchange Securities, as
applicable, covered by the Shelf Registration Statement have been sold pursuant
to the Shelf Registration Statement or cease to be outstanding (in any such
case, such period being called the "Shelf Registration Period"); provided,
however, upon notice from Banc One pursuant to Section 3(a)(i) hereof, on or
prior to the date specified for such filings in this Agreement such Shelf
Registration Period shall be extended for the purpose of covering resales of the
Securities, Private Exchange Securities or Exchange Securities by Banc One until
such time as Banc One shall
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have notified Quintiles that neither it nor any of its Affiliates is required by
applicable law or the Commission's policy to deliver a Prospectus in connection
with any resale of Securities, Exchange Securities or Private Exchange
Securities. The Company shall be deemed not to have used its reasonable best
efforts to keep a Shelf Registration Statement effective during the Shelf
Registration Period if it voluntarily takes any action that would result in
Holders of Securities covered thereby not being able to use such Shelf
Registration Statement to offer and sell such Securities covered by such Shelf
Registration Statement at any time during the Shelf Registration Period, unless
such action is (x) required by the Commission, applicable law or otherwise
undertaken by the Company in good faith and for valid business reasons (not
including avoidance of the Company's obligations hereunder), including the
acquisition or divestiture of assets, and (y) permitted pursuant to Section
4(k)(ii) hereof.
(c) In the event that:
(i) within 180 days after the Issue Date, neither the
Exchange Offer Registration Statement nor, if required to be filed
pursuant to Section 3(a)(i), (ii) or (iii) above, any Shelf
Registration Statement has been filed with the Commission;
(ii) within 30 days after a Shelf Registration Statement
is required to be filed pursuant to Section 3(a)(i), (ii) or (iii), so
long as such 30th day is a day after the 180th day following the Issue
Date, the Shelf Registration Statement has not been filed with
Commission;
(iii) within 270 days after the Issue Date, the Exchange
Offer Registration Statement has not been declared effective as
required by Section 2(a);
(iv) within 300 days after the Issue Date, neither the
Exchange Offer has been consummated nor, if required to be filed
pursuant to Section 3(a)(i), (ii) or (iii) above, the Shelf
Registration Statement has been declared effective;
(v) within 60 days of the day on which the obligation to
file a Shelf Registration Statement arises pursuant solely to Section
3(a)(iv) above, the Issuers fail to file such Shelf Registration
Statement with the Commission;
(vi) within 60 days of the day on which the obligation to
have a Shelf Registration Statement declared effective arises pursuant
solely to Section 3(a)(iv) above, such Shelf Registration Statement has
not been declared effective; or
(vii) after either the Exchange Offer Registration
Statement or the Shelf Registration Statement has been declared
effective, such Registration Statement thereafter ceases to be
effective or fails to be usable in connection with resales of
Securities or Exchange Securities in accordance with and during the
periods specified in this Agreement, other than as permitted pursuant
to Section 3(b)(ii) and Section 4(k)(ii).
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(each such event a "Registration Default" and each period during which a
Registration Default has occurred and is continuing, a "Registration Default
Period"), then, as liquidated damages for such Registration Default, additional
interest will accrue on the aggregate principal amount solely those Securities
and Exchange Securities subject to such Registration Default (in addition to the
stated interest on the Securities and Exchange Securities) from and including
the date on which any such Registration Default shall occur to, but excluding
the date that is the earlier of (1) the date on which all Registration Defaults
applicable to the subject Securities and Exchange Securities have been cured or
(2) the date on which all the Securities and Exchange Securities otherwise
become freely transferable by Holders other than Affiliates of the Issuers
without further registration under the Act. Additional interest will accrue at
an initial rate of 0.25% per annum, which rate shall increase by 0.25% per annum
for each subsequent 90-day period during which such Registration Default
continues up to a maximum of 1.00% per annum. If, after the cure of all
Registration Defaults then in effect, there is a subsequent Registration
Default, the rate of additional interest for such subsequent Registration
Default shall initially be 0.25% regardless of the rate in effect with respect
to any prior Registration Default at the time of cure of such Registration
Default. Notwithstanding the foregoing, the amount of additional interest
payable shall not increase because more than one Registration Default has
occurred and is pending.
4. Additional Registration Procedures. In connection
with any Shelf Registration Statement and, to the extent applicable, any
Exchange Offer Registration Statement, the following provisions shall apply:
(a) the Issuers shall:
(i) furnish to each of you or your counsel, not
less than three Business Days prior to the filing thereof with
the Commission, a copy of the Exchange Offer Registration
Statement or the Shelf Registration Statement, as the case may
be, and each amendment thereto and each amendment or
supplement, if any, to the Prospectus included therein (and
upon written request, all documents incorporated by reference
therein after the initial filing) and shall use their
reasonable best efforts to reflect in each such document, when
so filed with the Commission, such comments as you reasonably
propose within a reasonable time prior to such filing;
(ii) in the case of an Exchange Offer
Registration Statement, to the extent permitted by the Act,
include the information in substantially the form set forth in
Annex A hereto on the facing page of the Exchange Offer
Registration Statement, in substantially the form set forth in
Annex B hereto in the forepart of the Exchange Offer
Registration Statement in a section setting forth details of
the Exchange Offer, in substantially the form set forth in
Annex C hereto in the underwriting or plan of distribution
section of the Prospectus
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contained in the Exchange Offer Registration Statement, and in
substantially the form set forth in Annex D hereto in the
letter of transmittal delivered pursuant to the Registered
Exchange Offer; and
(iii) in the case of a Shelf Registration
Statement, subject to clause (n) below, include the names of
the Holders that propose to sell Securities or Exchange
Securities pursuant to the Shelf Registration Statement as
selling security holders and the applicable information
required by Items 507 and 508 of Regulation S-K as provided by
the Holders.
(b) The Company shall ensure that:
(i) any Registration Statement and any amendment
thereto and any Prospectus forming part thereof and any
amendment or supplement thereto complies in all material
respects with the Act; and
(ii) any Registration Statement and any amendment
thereto does not, when it becomes effective, contain an 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 not misleading.
(c) The Issuers shall advise you, the Holders of
Securities or Exchange Securities covered by any Shelf Registration
Statement and any Exchanging Dealer under any Exchange Offer
Registration Statement that has provided in writing to any Issuer a
telephone or facsimile number and address for notices, and, if
requested by you or any such Holder or Exchanging Dealer, shall confirm
such advice in writing (which notice pursuant to clauses (ii)-(v)
hereof shall be accompanied by an instruction to suspend the use of the
Prospectus until the Issuers shall have remedied the basis for such
suspension):
(i) when a Registration Statement or any
amendment thereto has been filed with the Commission and when
the Registration Statement or any post-effective amendment
thereto has become effective;
(ii) of any request by the Commission for any
amendment or supplement to the Registration Statement or the
Prospectus or for additional information;
(iii) of the issuance by the Commission of any
stop order suspending the effectiveness of the Registration
Statement or the initiation of any proceedings for that
purpose;
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(iv) of the receipt by any Issuer of any
notification with respect to the suspension of the
qualification of the Securities included therein for sale in
any jurisdiction or the initiation of any proceeding for such
purpose; and
(v) of the happening of any event that requires
any change in the Registration Statement or the Prospectus so
that, as of such date, the statements therein are not
misleading and do not omit to state a material fact required
to be stated therein or necessary to make the statements
therein (in the case of the Prospectus, in the light of the
circumstances under which they were made) not misleading;
provided that such notice need not identify the reasons for
such event that requires such change in the Registration
Statement.
(d) The Issuers shall use their respective reasonable
best efforts to obtain the withdrawal of any order suspending the
effectiveness of any Registration Statement or the qualification of the
Securities therein for sale in any jurisdiction at the earliest
possible time.
(e) The Issuers shall furnish to each Holder of
Securities or Exchange Securities covered by any Shelf Registration
Statement, without charge, at least one copy of such Shelf Registration
Statement and any post-effective amendment thereto, including, upon
written request, all material incorporated therein by reference and
exhibits thereto (including exhibits incorporated by reference
therein).
(f) The Issuers shall, during the Shelf Registration
Period, deliver to each Holder of Securities or Exchange Securities
covered by any Shelf Registration Statement, without charge, as many
copies of the Prospectus (including each preliminary Prospectus)
included in such Shelf Registration Statement and any amendment or
supplement thereto as such Holder may reasonably request. The Issuers
consent to the use (in all cases in accordance with applicable law and
subject to compliance with the terms of this Agreement) of the
Prospectus or any amendment or supplement thereto by each of the
selling Holders of Securities in connection with the offering and sale
of the Securities covered by the Prospectus, or any amendment or
supplement thereto, included in the Shelf Registration Statement.
(g) The Issuers shall furnish to each Exchanging Dealer
which so requests, without charge, at least one copy of the Exchange
Offer Registration Statement and any post-effective amendment thereto,
including, upon written request, all material incorporated by reference
therein, and all exhibits thereto (including exhibits incorporated by
reference therein).
(h) The Issuers shall promptly deliver to each Initial
Purchaser, each Exchanging Dealer and each other Person required to
deliver a Prospectus during the Exchange Offer Registration Period,
without charge, as many copies of the Prospectus
-14-
included in such Exchange Offer Registration Statement and any
amendment or supplement thereto as any such Person may reasonably
request. The Issuers consent to the use (in all cases in accordance
with applicable law and subject to compliance with the terms of this
Agreement) of the Prospectus or any amendment or supplement thereto by
any Initial Purchaser, any Exchanging Dealer and any such other Person
that may be required to deliver a Prospectus following the Registered
Exchange Offer in connection with the offering and sale of the Exchange
Securities covered by the Prospectus, or any amendment or supplement
thereto, included in the Exchange Offer Registration Statement.
(i) Prior to the Registered Exchange Offer or any other
offering of Securities or Exchange Securities pursuant to any
Registration Statement, the Issuers shall arrange, if necessary, for
the qualification of the Securities or the Exchange Securities for sale
under the laws of such jurisdictions as any Holder shall reasonably
request and will maintain such qualification in effect so long as
required; provided that in no event shall any Issuer be obligated (i)
to qualify to do business in any jurisdiction where it is not then so
qualified or (ii) to take any action that would subject it to taxation
or service of process in suits, other than those arising out of the
Initial Placement, the Registered Exchange Offer or any offering
pursuant to a Shelf Registration Statement, in any such jurisdiction
where it is not then so subject.
(j) The Issuers shall cooperate with the Holders to
facilitate the timely preparation and delivery of certificates
representing Exchange Securities or Securities to be issued or sold
pursuant to any Registration Statement free of any restrictive legends
and in such denominations and registered in such names as Holders may
request.
(k)
(i) Upon the occurrence of any event
contemplated by subsections (c)(ii) through (v) above, the
Issuers shall promptly prepare a post-effective amendment to
the applicable Registration Statement or an amendment or
supplement to the related Prospectus or file any other
required document so that, as thereafter delivered to Initial
Purchasers, the Prospectus will not include an untrue
statement of a material fact or omit to state any material
fact necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading.
In such circumstances, the period of effectiveness of the
Exchange Offer Registration Statement provided for in Section
2 hereof and the Shelf Registration Statement provided for in
Section 3(b) hereof shall each be extended by the number of
days from and including the date of the giving of a notice of
suspension pursuant to Section 4(c) hereof to and including
the date when the Initial Purchasers, the Holders and any
known Exchanging Dealer shall have
-15-
received such amended or supplemented Prospectus pursuant to
this Section 4; or
(ii) Upon the occurrence or existence of any
pending corporate development or any other material event
that, in the reasonable judgment of Quintiles, makes it
appropriate to suspend the availability of a Shelf
Registration Statement and the related Prospectus, Quintiles
shall give notice (without notice of the nature or details of
such events) to the Holders that the availability of the Shelf
Registration is suspended and, upon actual receipt of any such
notice, each Holder agrees not to sell any registrable
Securities pursuant to the Shelf Registration until such
Holder's receipt of copies of the supplemented or amended
Prospectus provided for in Section 4(h) hereof, or until it is
advised in writing by Quintiles that the Prospectus may be
used, and has received copies of any additional or
supplemental filings that are incorporated or deemed
incorporated by reference in such Prospectus. The period
during which the availability of the Shelf Registration and
any Prospectus is suspended shall not exceed 45 days in any
three-month period or 90 days in any twelve-month period.
Notwithstanding this Section 4(k), in no event shall the Issuers be
required to maintain the effectiveness of any Exchange Offer
Registration Statement or Shelf Registration Statement beyond the
second anniversary of the original Issue Date of the Securities, except
as set forth in Section 3(b)(ii). As soon as practicable following
receipt of notice from the Issuers in accordance with Sections 4(c) or
(k) hereof, as the case maybe, each Holder and Exchanging Dealer agrees
to suspend use of the Prospectus until such Holder and Exchanging
Dealer receives copies of the amended or supplemented Prospectus or
until it receives written notice from the Issuers that the use of the
applicable Prospectus may be resumed.
(l) Not later than the effective date of any Registration
Statement, the Issuers shall provide a CUSIP number for the Securities
or the Exchange Securities, as the case may be, registered under such
Registration Statement and provide the Trustee with printed
certificates for such Securities or Exchange Securities, in a form
eligible for deposit with The Depository Trust Company.
(m) The Issuers shall comply with all applicable rules
and regulations of the Commission and make generally available to their
security holders as soon as practicable after the effective date of the
applicable Registration Statement an earnings statement satisfying the
provisions of Section 11(a) of the Act.
(n) The Issuers shall cause the Indenture to be qualified
under the Trust Indenture Act of 1939, as amended, in a timely manner.
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(o) The Issuers may require each Holder of Securities to
be sold pursuant to any Shelf Registration Statement to furnish to the
Issuers such information regarding the Holder and the distribution of
such Securities as the Issuers may from time to time reasonably require
for inclusion in such Registration Statement. The Issuers may exclude
from such Shelf Registration Statement the Securities or Exchange
Securities of any Holder that unreasonably fails to furnish such
information within a reasonable time after receiving such request and
the failure to include such Securities or Exchange Securities of any
such Holder shall not be deemed to be a default hereunder. Each Holder
agrees to promptly furnish additional information required to be
disclosed in order to make the information previously furnished to the
Issuers by such Holder, regarding such Holder, not materially
misleading.
(p) In the case of any Shelf Registration Statement, the
Issuers shall enter into such and take all other appropriate actions
(including, if requested by Holders representing 10% of the aggregate
principal amount of Securities covered by such Shelf Registration
Statement, an underwriting agreement in customary form) in order to
expedite or facilitate the registration or the disposition of the
Securities or Exchange Securities, and in connection therewith, if an
underwriting agreement is entered into, cause the same to contain
indemnification provisions and procedures no less favorable than those
set forth in Section 6 (or such other provisions and procedures
acceptable to the Majority Holders and the Managing Underwriters, if
any, with respect to all parties to be indemnified pursuant to Section
6).
(q) In the case of any Shelf Registration Statement, the
Issuers shall:
(i) upon written request and reasonable advance
notice, make reasonably available for inspection by the
Holders of Securities or Exchange Securities to be registered
thereunder, any underwriter participating in any disposition
pursuant to such Shelf Registration Statement, and any
attorney retained by the Holders or any such underwriter all
relevant financial and other records, pertinent corporate
documents and properties of each Issuer during normal business
hours at the offices where such information is typically kept;
(ii) upon written request and reasonable advance
notice, cause the officers, directors and employees of each
Issuer to supply all relevant information reasonably requested
by the Holders or any such underwriter or attorney in
connection with any such Shelf Registration Statement (each an
"Inspector") as is customary for similar due diligence
examinations during normal business hours at the offices where
such information is typically kept; provided, however, that
each Inspector shall agree in writing that any confidential
information referred to in Section 4(q)(i) above or this
Section 4(q)(ii) shall be kept confidential by such Inspector,
unless such disclosure is
-17-
made in connection with a court proceeding or required by law,
or such information becomes available to the public generally
or through a third party (other than an Affiliate of such
Inspector) without an accompanying obligation of
confidentiality; provided, further, that prior written notice
shall be provided as soon as practicable to the applicable
Issuer of the potential disclosure of any information in
connection with a court proceeding or required by law to
permit such Issuer to obtain a protective order or take such
other action to prevent disclosure of such information;
(iii) make such representations and warranties to
the Holders of Securities or Exchange Securities registered
thereunder and the underwriters, if any, in form, substance
and scope as are customarily made by issuers to underwriters
in primary underwritten offerings and covering matters
including, but not limited to, those set forth in the Purchase
Agreement as may be reasonably requested;
(iv) obtain opinions of counsel to the Issuers
(which may be the Issuers' internal counsel) and updates
thereof (which counsel and opinions (in form, scope and
substance) shall be reasonably satisfactory to the Managing
Underwriters, if any) addressed to each selling Holder (if
then customary in underwritten offerings) and the
underwriters, if any, covering such matters as are customarily
covered in opinions requested in underwritten offerings and
such other matters as may be reasonably requested by such
Holders and underwriters;
(v) obtain "cold comfort" letters and updates
thereof from the independent certified public accountants of
Quintiles (and, if necessary, any other independent certified
public accountants of any Issuer or any subsidiary of any
Issuer or of any business acquired by any Issuer for which
financial statements and financial data are, or are required
to be, included in the Shelf Registration Statement),
addressed to the underwriters, if any, in customary form and
covering matters of the type customarily covered in "cold
comfort" letters in connection with primary underwritten
offerings; and
(vi) deliver such documents and certificates as
may be reasonably requested by the Majority Holders and the
Managing Underwriters, if any, including those to evidence
compliance with Section 4(l) and with any customary conditions
contained in the underwriting agreement or other customary
agreement entered into by the Issuers.
The actions set forth in clauses (iii), (iv), (v) and (vi) of this
Section 4(q) shall be performed at each closing under any underwriting
or similar agreement as and to the extent required thereunder.
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(r) If a Registered Exchange Offer is to be consummated,
upon delivery of the Securities by Holders to Quintiles (or to such
other Person as directed by Quintiles) in exchange for the Exchange
Securities, Quintiles shall ▇▇▇▇, or caused to be marked, on the
Securities so exchanged that such Securities are being canceled in
exchange for the Exchange Securities. In no event shall the Securities
be marked as paid or otherwise satisfied.
(s) The Issuers will use their respective reasonable best
efforts if the Securities have been rated prior to the initial sale of
such Securities pursuant to the Purchase Agreement, to confirm such
ratings will apply to the Securities or the Exchange Securities, as the
case may be, covered by an Exchange Offer Registration Statement.
(t) In the event that any Broker-Dealer shall underwrite
any Securities or Exchange Securities or participate as a member of an
underwriting syndicate or selling group or "assist in the distribution"
(within the meaning of the Conduct Rules of the National Association of
Securities Dealers, Inc. (the "Conduct Rules")) thereof, whether as a
Holder or as an underwriter, a placement or sales agent or a broker or
dealer in respect thereof, or otherwise, the Issuers shall assist such
Broker-Dealer in complying with the requirements of such Conduct Rules,
including, without limitation, by:
(i) if such Conduct Rules shall so require,
engaging a "qualified independent underwriter" (as defined in
such Rules) to participate in the preparation of the
Registration Statement, to exercise usual standards of due
diligence with respect thereto and, if any portion of the
offering contemplated by such Registration Statement is an
underwritten offering or is made through a placement or sales
agent, to recommend the yield of such Securities or Exchange
Securities;
(ii) indemnifying any such qualified independent
underwriter to the extent of the indemnification of
underwriters provided in Section 6 hereof; and
(iii) providing such information to such
Broker-Dealer as may be required in order for such
Broker-Dealer to comply with the requirements of such Conduct
Rules.
(u) The Issuers shall cooperate with the Holders
participating in the disposition of the Securities and one counsel
acting on behalf of all such Holders in connection with the filings, if
any, required to be made with the NASD.
(v) The Issuers shall use their respective reasonable
best efforts to take all other steps necessary to effect the
registration of the Securities or the Exchange Securities, as the case
may be, covered by a Registration Statement.
-19-
5. Registration Expenses. The Issuers shall bear all
expenses incurred in connection with the performance of their obligations under
Sections 2, 3 and 4 hereof, and, in the event of any Shelf Registration
Statement, will reimburse the Holders for the reasonable fees and disbursements
of one firm or counsel designated by the Majority Holders to act as counsel for
the Holders in connection therewith and, in the case of any Exchange Offer
Registration Statement, will reimburse the Initial Purchasers for the reasonable
fees and disbursements of such one firm or counsel acting in connection
therewith. Each Holder shall pay all commissions and transfer taxes, if any,
relating to the sale or disposition of such Holder's Securities.
6. Indemnification and Contribution. (a) The Issuers
jointly and severally agree to indemnify and hold harmless each Holder of
Securities or Exchange Securities, as the case may be, covered by any
Registration Statement (including each Initial Purchaser and, with respect to
any Prospectus delivery as contemplated in Section 4(h) hereof, each Exchanging
Dealer), the directors, officers, employees and agents of each such Holder and
each Person who controls any such Holder within the meaning of either Section 15
of the Act or Section 20 of the Exchange Act against any and all losses, claims,
damages or liabilities, joint or several, to which they or any of them may
become subject under the Act, the Exchange Act or other Federal, state or
foreign statutory law or regulation, at common law or otherwise, 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 a
material fact contained in any such Registration Statement as originally filed
or in any amendment thereof, or in any preliminary prospectus or the Prospectus,
or in any amendment thereof or supplement thereto, or arise out of or are based
upon the omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not misleading,
and jointly and severally agree to reimburse each such indemnified party, as
incurred, for any legal or other expenses reasonably incurred by it in
connection with investigating or defending any such loss, claim, damage,
liability or action; provided, however, that the Issuers will not be liable in
any case to the extent that any such loss, claim, damage or liability arises out
of or is based upon any such untrue statement or alleged untrue statement or
omission or alleged omission made therein in reliance upon and in conformity
with written information furnished to any Issuer by or on behalf of any such
Holder relating to such Holder specifically for inclusion therein.
Each Issuer also jointly and severally agrees to indemnify or
contribute as provided in Section 6(d) (below) to Losses of each underwriter of
Securities or Exchange Securities, as the case may be, registered under a Shelf
Registration Statement, its directors, officers, employees or agents and each
Person who controls such underwriter on substantially the same basis as that of
the indemnification of the Initial Purchasers and the selling Holders provided
in this Section 6(a) and shall, if requested by any Holder, enter into an
underwriting agreement reflecting such agreement, as provided in Section 4(p)
hereof.
-20-
(b) Each Holder of Securities covered by a Registration
Statement (including each Initial Purchaser and, with respect to any Prospectus
delivery as contemplated in Section 4(h) hereof, each Exchanging Dealer)
severally agrees to indemnify and hold harmless each of the Issuers, each of
their respective directors, officers or agents and each Person who controls any
Issuer within the meaning of either the Act or the Exchange Act, to the same
extent as the foregoing indemnity from the Issuers to each such Holder, but only
in reliance upon and conformity with written information relating to such Holder
furnished to the Issuers by or on behalf of such Holder specifically for
inclusion in the documents referred to in the foregoing indemnity. This
indemnity agreement will be in addition to any liability which any such Holder
may otherwise have.
(c) Promptly after receipt by an indemnified party under
this Section 6 of notice of the commencement of any action, such indemnified
party will, if a claim in respect thereof is to be made against the indemnifying
party under this Section 6, notify the indemnifying party in writing of the
commencement thereof; but the failure so to notify the indemnifying party (i)
will not relieve it from liability under paragraph (a) or (b) above unless and
to the extent it did not otherwise learn of such action and such failure results
in the forfeiture by the indemnifying party of substantial rights and defenses;
and (ii) will not, in any event, relieve the indemnifying party from any
obligations to any indemnified party other than the indemnification obligation
provided in paragraph (a) or (b) above. The indemnifying party shall be entitled
to appoint counsel of the indemnifying party's choice at the indemnifying
party's expense to represent the indemnified party in any action for which
indemnification is sought (in which case the indemnifying party shall not
thereafter be responsible for the fees and expenses of any separate counsel
retained by the indemnified party or parties except as set forth below);
provided, however, that such counsel shall be reasonably satisfactory to the
indemnified party. Notwithstanding the indemnifying party's election to appoint
counsel to represent the indemnified party in an action, the indemnified party
shall have the right to employ one firm of separate counsel (in addition to one
local counsel firm), and the indemnifying party shall bear the reasonable fees,
costs and expenses of such separate counsel if (i) the use of counsel chosen by
the indemnifying party to represent the indemnified party would present such
counsel with an actual conflict of interest; (ii) the actual or potential
defendants in, or targets of, any such action include both the indemnified party
and the indemnifying party and the indemnified party shall have reasonably
concluded, based upon the advice of counsel, that there may be legal defenses
available to it and/or other indemnified parties which are different from or
additional to those available to the indemnifying party; (iii) the indemnifying
party shall not have employed counsel reasonably satisfactory to the indemnified
party to represent the indemnified party within a reasonable time after notice
of the institution of such action; or (iv) the indemnifying party shall
authorize the indemnified party to employ separate counsel at the expense of the
indemnifying party. It is understood, however, that the indemnifying party
shall, in connection with any one such action or separate but substantially
similar or related actions in the same jurisdiction arising out of the same
general circumstances, be liable for the fees and
-21-
expenses of only one firm of attorneys (in addition to one local counsel) at any
time for all such indemnified parties. An indemnifying party will not, without
the prior written consent of the indemnified parties, settle or compromise or
consent to the entry of any judgment with respect to any pending or threatened
claim, action, suit or proceeding in respect of which indemnification or
contribution may be sought hereunder (whether or not the indemnified parties are
actual or potential parties to such claim or action) unless such settlement,
compromise or consent (i) includes an unconditional release of each indemnified
party from all liability arising out of such claim, action, suit or proceeding
and (ii) does not include a statement as to, or an admission of, fault or
culpability or failure to act by or on behalf of any indemnified party.
(d) In the event that the indemnity provided in paragraph
(a) or (b) of this Section is unavailable to or insufficient to hold harmless an
indemnified party for any reason, then each applicable indemnifying party shall
have a joint and several obligation to contribute to the aggregate losses,
claims, damages and liabilities (including legal or other expenses reasonably
incurred in connection with investigating or defending same) (collectively
"Losses") to which such indemnified party may be subject in such proportion as
is appropriate to reflect the relative benefits received by such indemnifying
party, on the one hand, and such indemnified party, on the other hand, from the
Initial Placement and the Registration Statement which resulted in such Losses;
provided, however, that in no case shall any Initial Purchaser or any subsequent
Holder of any Security or Exchange Security be responsible, in the aggregate,
for any amount in excess of the purchase discount or commission applicable to
such Security or, in the case of an Exchange Security, applicable to the
Security that was exchangeable into such Exchange Security, as set forth on the
cover page of the Final Memorandum, nor shall any underwriter be responsible for
any amount in excess of the underwriting discount or commission applicable to
the Securities purchased by such underwriter under the Registration Statement
which resulted in such Losses. If the allocation provided by the immediately
preceding sentence is unavailable for any reason, the indemnifying party and the
indemnified party shall contribute in such proportion as is appropriate to
reflect not only such relative benefits but also the relative fault of such
indemnifying party, on the one hand, and such indemnified party, on the other
hand, in connection with the statements or omissions which resulted in such
Losses as well as any other relevant equitable considerations. The relative
benefits received by the Issuers shall be deemed to be equal to the total net
proceeds from the Initial Placement (before deducting expenses) as set forth on
the cover page of the Final Memorandum. The relative benefits received by the
Initial Purchasers shall be deemed to be equal to the total purchase discounts
and commissions as set forth on the cover page of the Final Memorandum and
benefits received by any other Holders shall be deemed to be equal to the value
of receiving Securities or Exchange Securities, as applicable, registered under
the Act. Benefits received by any underwriter shall be deemed to be equal to the
total underwriting discounts and commissions, as set forth on the cover page of
the Prospectus forming a part of the Registration Statement which resulted in
such Losses. Relative fault shall be determined by reference to, among
-22-
other things, whether any alleged untrue statement of a material fact or
omission to state a material fact relates to information provided by the
indemnifying party, on the one hand, or by the indemnified party, on the other
hand, the intent of the parties and their relative knowledge, access to
information and opportunity to correct or prevent such untrue statement or
omission. The parties agree that it would not be just and equitable if
contribution were determined by pro rata allocation (even if the Holders were
treated as one entity for such purpose) or any other method of allocation which
does not take account of the equitable considerations referred to above.
Notwithstanding the provisions of this paragraph (d), 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. For purposes of this Section 6, each Person who
controls a Holder within the meaning of either the Act or the Exchange Act and
each director, officer, employee and agent of such Holder shall have the same
rights to contribution as such Holder, and each Person who controls any Issuer
within the meaning of either the Act or the Exchange Act, each officer of any
Issuer who shall have signed the Registration Statement and each director of any
Issuer shall have the same rights to contribution as the Issuers, subject in
each case to the applicable terms and conditions of this paragraph (d).
(e) The provisions of this Section 6 will remain in full
force and effect, regardless of any investigation made by or on behalf of any
Holder or the Issuers or any of the officers, directors or controlling Persons
referred to in this Section 6, and will survive the sale by a Holder of
Securities covered by a Registration Statement.
7. Underwritten Registrations. (a) If any of the
Securities or Exchange Securities, as the case may be, covered by any Shelf
Registration Statement are to be sold in an underwritten offering, the Managing
Underwriter(s) shall be selected by the Majority Holders and shall be reasonably
satisfactory to Quintiles.
(b) No Person may participate in any underwritten
offering pursuant to any Shelf Registration Statement, unless such Person (i)
agrees to sell such Person's Securities or Exchange Securities, as the case may
be, on the basis reasonably provided in any underwriting arrangements approved
by the Persons entitled hereunder to approve such arrangements; and (ii)
completes and executes all questionnaires, powers of attorney, indemnities,
underwriting agreements and other documents reasonably required under the terms
of such underwriting arrangements.
8. No Inconsistent Agreements. No Issuer has, as of the
date hereof, entered into, nor shall it, on or after the date hereof, enter
into, any agreement with respect to its securities that is inconsistent with the
rights granted to the Holders herein or otherwise conflicts with the provisions
hereof.
9. Amendments and Waivers. The provisions of this
Agreement, including the provisions of this sentence, may not be amended,
qualified, modified or
-23-
supplemented, and waivers or consents to departures from the provisions hereof
may not be given, otherwise than with the prior written consent of (i) the
Issuers and (ii) the Majority Holders; provided that, with respect to any matter
that directly or indirectly affects any rights of any Initial Purchaser
hereunder, the Issuers shall obtain the written consent of each of the Initial
Purchasers against which such amendment, qualification, supplement, waiver or
consent is to be effective. Notwithstanding the foregoing (except the foregoing
proviso), a waiver or consent to departure from the provisions hereof with
respect to a matter that relates exclusively to the rights of Holders whose
Securities or Exchange Securities, as the case may be, are being sold pursuant
to a Registration Statement and that does not directly or indirectly affect the
rights of other Holders may be given by the Majority Holders, determined on the
basis of Securities or Exchange Securities, as the case may be, being sold
rather than registered under such Registration Statement.
10. Notices. All notices and other communications
provided for or permitted hereunder shall be made in writing by hand delivery,
first-class mail, telex, telecopier or air courier guaranteeing overnight
delivery:
(a) if to a Holder, at the most current address given by
such Holder to the Issuers in accordance with the provisions of this
Section 10, which address initially is, with respect to each Holder,
the address of such Holder maintained by the Registrar under the
Indenture, with a copy in like manner to Citigroup Global Markets Inc.;
(b) if to you, initially at the respective addresses set
forth in the Purchase Agreement; and
(c) if to the Issuers, initially at their address set
forth in the Purchase Agreement.
All such notices and communications shall be deemed to have
been duly given at the time delivered personally, if personally delivered; two
business days after being deposited in the mail, postage prepaid, if mailed;
when answered back, if telexed; when receipt is acknowledged, if telecopied; and
on the next business day, if timely delivered to a nationally recognized air
courier guaranteeing overnight delivery.
The Initial Purchasers or the Issuers by notice to the other
parties may designate additional or different addresses for subsequent notices
or communications.
11. Successors. This Agreement shall inure to the benefit
of and be binding upon the successors and assigns of each of the parties hereto,
including, without the need for an express assignment or any consent, by the
Issuers and subsequent Holders of Securities and Exchange Securities. The
Issuers hereby agree to extend the benefits of this Agreement to any Holder of
Securities or Exchange Securities, and any such Holder may specifically enforce
the provisions of this Agreement as if an original party hereto; provided,
-24-
however, that nothing herein shall be deemed to permit any assignment, transfer
or other disposition of Securities or Exchange Securities in violation of the
terms of the Indenture or Purchase Agreement.
12. Counterparts. This Agreement may be in signed
counterparts, each of which shall be an original and all of which together shall
constitute one and the same agreement.
13. Headings. The headings used herein are for
convenience only and shall not affect the construction hereof.
14. Applicable Law. 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 in the State of New York.
15. Entire Agreement. This Agreement is intended by the
parties as a final expression of their agreement and intended to be a complete
and exclusive statement of the agreement and understanding of the parties hereto
in respect of the subject matter contained herein. There are no restrictions,
promises, warranties or undertakings, other than those set forth or referred to
herein, with respect to the registration rights granted with respect to the
Securities and Exchange Securities. This Agreement supersedes all prior
agreements and understandings between the parties with respect to such subject
matter.
16. Severability. In the event that any one or more of
the provisions contained herein, or the application thereof in any
circumstances, is held invalid, illegal or unenforceable in any respect for any
reason, the validity, legality and enforceability of any such provision in every
other respect and of the remaining provisions hereof shall not be in any way
impaired or affected thereby, it being intended that all of the rights and
privileges of the parties shall be enforceable to the fullest extent permitted
by law.
17. Securities Held by the Issuers, etc. Whenever the
consent or approval of Holders of a specified percentage of principal amount of
Securities or Exchange Securities is required hereunder, Securities or Exchange
Securities, as applicable, held by any Issuer or its Affiliates (other than
subsequent Holders of Securities or Exchange Securities if such subsequent
Holders are deemed to be Affiliates solely by reason of their holdings of such
Securities or Exchange Securities) shall not be counted in determining whether
such consent or approval was given by the Holders of such required percentage.
18. Submission to Jurisdiction. By the execution and
delivery of this Agreement, each Issuer submits to the non-exclusive
jurisdiction of any federal or state court in the State of New York in any suit
or proceeding arising out of or relating to this Agreement or brought under
federal or state securities laws. By receiving the rights and benefits under
this Agreement, each Holder also submits to the non-exclusive jurisdiction of
any federal or
-25-
state court in the State of New York in any suit or proceeding arising out of or
relating to this Agreement or brought under federal or state securities laws.
[Signature Page Follows]
-26-
If the foregoing is in accordance with your understanding of
our agreement, please sign and return to us the enclosed duplicate hereof,
whereupon this letter and your acceptance shall represent a binding agreement
among each Issuer and the several Initial Purchasers.
Very truly yours,
QUINTILES TRANSNATIONAL CORP.
By: _________________________
▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Executive Vice President
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BENEFIT HOLDING, INC.
BENEFIT TRANSNATIONAL HOLDING CORP.
BIOGLAN PHARMACEUTICALS COMPANY
INNOVEX (NORTH AMERICA) INC.
INNOVEX AMERICA HOLDING COMPANY
INNOVEX MERGER CORP.
MEDCOM, INC.
PHARMABIO DEVELOPMENT, INC.
PHARMA INFORMATICS, INC.
PMSI DATABASE SERVICES, INC.
PMSI FINANCE LIMITED
PMSI HOLDINGS LIMITED
PMSI ▇▇▇▇▇-▇▇▇▇▇, INC.
Q.E.D COMMUNICATIONS, INC.
QFINANCE, INC.
QUINTILES ASIA, INC.
QUINTILES CLINICAL SUPPLIES AMERICAS, INC.
QUINTILES FEDERATED SERVICES, INC.
QUINTILES, INC.
QUINTILES INFORMATICS, INC.
QUINTILES LABORATORIES LIMITED
QUINTILES LATIN AMERICA, INC.
QUINTILES PACIFIC, INC.
QUINTILES PHASE ONE SERVICES, INC.
QUINTILES ▇▇▇▇▇-▇▇▇▇▇, INC.
QUINTILES TECHNOLOGIES, INC.
SOURCE INFORMATICS EUROPEAN FINANCE, INC.
SOURCE INFORMATICS EUROPEAN HOLDINGS, INC.
THE ▇▇▇▇▇ GROUP, INC.
By:_________________________________________
▇▇▇▇ ▇. ▇▇▇▇▇▇▇
President
-28-
INNOVEX, L.P.
INNOVEX AMERICAN HOLDING COMPANY,
as General Partner
By: _______________________________
▇▇▇▇ ▇. ▇▇▇▇▇▇▇
President
MSM GROUP LIMITED PARTNERSHIP,
as Limited Partner
QUINTILES PACIFIC, INC.,
as General Partner
By: _______________________
▇▇▇▇ ▇. ▇▇▇▇▇▇▇
President
INNOVEX (NORTH AMERICA) INC.,
as Limited Partner
By: _______________________________
▇▇▇▇ ▇. ▇▇▇▇▇▇▇
President
-29-
INNOVEX NEVADA LIMITED PARTNERSHIP
QUINTILES PACIFIC, INC.,
as General Partner
By: _______________________________
▇▇▇▇ ▇. ▇▇▇▇▇▇▇
President
INNOVEX (NORTH AMERICA) INC.,
as Limited Partner
By: _______________________________
▇▇▇▇ ▇. ▇▇▇▇▇▇▇
President
-30-
INNOVEX SUPPORT SERVICES LIMITED
PARTNERSHIP
INNOVEX AMERICA HOLDING COMPANY,
as General Partner
By: _______________________________
▇▇▇▇ ▇. ▇▇▇▇▇▇▇
President
INNOVEX NEVADA LIMITED PARTNERSHIP,
as Limited Partner
QUINTILES PACIFIC, INC.
as General Partner
By: _______________________________
▇▇▇▇ ▇. ▇▇▇▇▇▇▇
President
INNOVEX (NORTH AMERICA) INC.,
as Limited Partner
By: _______________________________
▇▇▇▇ ▇. ▇▇▇▇▇▇▇
President
-31-
MSM GROUP LIMITED PARTNERSHIP
QUINTILES PACIFIC, INC.,
as General Partner
By: _______________________________
▇▇▇▇ ▇. ▇▇▇▇▇▇▇
President
INNOVEX (NORTH AMERICA) INC.,
as Limited Partner
By: _______________________________
▇▇▇▇ ▇. ▇▇▇▇▇▇▇
President
-32-
QUINTILES TRANSFER, L.L.C.
QUINTILES PACIFIC, INC.,
as sole Member
By: _______________________________
▇▇▇▇ ▇. ▇▇▇▇▇▇▇
President
-33-
SOURCE INFORMATICS EUROPEAN
HOLDINGS, LLC
SOURCE INFORMATICS EUROPEAN
HOLDINGS, INC.,
as sole Member
By: _______________________________
▇▇▇▇ ▇. ▇▇▇▇▇▇▇
President
-34-
QUINTILES AUSTRIAN HOLDINGS, LLC
Quintiles Transnational Corp.
as sole Member
By: _______________________________
▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Executive Vice President
-35-
The foregoing Agreement is
hereby confirmed and accepted
as of the date first above written.
Citigroup Global Markets Inc.
By: ________________________________
Name:
Title:
For itself and the other several Initial
Purchasers named in Schedule I to
the foregoing Agreement.
SCHEDULE I
Initial Purchasers:
Citigroup Global Markets Inc.
ABN AMRO Incorporated
Banc One Capital Markets, Inc.
Sch. I-1
ANNEX A
Each Broker-Dealer that receives Exchange Securities for its
own account pursuant to the Exchange Offer must acknowledge that it will deliver
a prospectus in connection with any resale of such Exchange Securities. The
letter of transmittal states that by so acknowledging and by delivering a
prospectus, a Broker-Dealer will not be deemed to admit that it is an
"underwriter" within the meaning of the Act. This Prospectus, as it may be
amended or supplemented from time to time, may be used by a Broker-Dealer in
connection with resales of Exchange Securities received in exchange for
Securities where such Securities were acquired by such Broker-Dealer as a result
of market-making activities or other trading activities. The Issuers have agreed
that, starting on the expiration date and ending on the close of business 90
days after the expiration date, they will make this Prospectus available to any
Broker-Dealer for use in connection with any such resale. See "Plan of
Distribution."
A-1
ANNEX B
Each Broker-Dealer that receives Exchange Securities for its
own account in exchange for Securities, where such Securities were acquired by
such Broker-Dealer as a result of market-making activities or other trading
activities, must acknowledge that it will deliver a prospectus in connection
with any resale of such Exchange Securities. See "Plan of Distribution."
B-1
ANNEX C
Plan of Distribution
Each Broker-Dealer that receives Exchange Securities for its
own account pursuant to the Exchange Offer must acknowledge that it will deliver
a prospectus in connection with any resale of such Exchange Securities. This
Prospectus, as it may be amended or supplemented from time to time, may be used
by a Broker-Dealer in connection with resales of Exchange Securities received in
exchange for Securities where such Securities were acquired as a result of
market-making activities or other trading activities. The Issuers have agreed
that, starting on the expiration date and ending on the close of business 180
days after the expiration date, they will make this Prospectus, as amended or
supplemented, available to any Broker-Dealer for use in connection with any such
resale. In addition, until ___________, 200__, all dealers effecting
transactions in the Exchange Securities may be required to deliver a prospectus.
The Issuers will not receive any proceeds from any sale of
Exchange Securities by Broker-Dealers. Exchange Securities received by
Broker-Dealers for their own account pursuant to the Exchange Offer may be sold
from time to time in one or more transactions in the over-the-counter market, in
negotiated transactions, through the writing of options on the Exchange
Securities or a combination of such methods of resale, at market prices
prevailing at the time of resale, at prices related to such prevailing market
prices or negotiated prices. Any such resale may be made directly to purchasers
or to or through brokers or dealers who may receive compensation in the form of
commissions or concessions from any such Broker-Dealer and/or the purchasers of
any such Exchange Securities. Any Broker-Dealer that resells Exchange Securities
that were received by it for its own account pursuant to the Exchange Offer and
any broker or dealer that participates in a distribution of such Exchange
Securities may be deemed to be an "underwriter" within the meaning of the Act
and any profit of any such resale of Exchange Securities and any commissions or
concessions received by any such Persons may be deemed to be underwriting
compensation under the Act. The letter of transmittal states that by
acknowledging that it will deliver and by delivering a prospectus, a
Broker-Dealer will not be deemed to admit that it is an "underwriter" within the
meaning of the Act.
For a period of 90 days after the Expiration Date, the Issuers
will promptly send additional copies of this Prospectus and any amendment or
supplement to this Prospectus to any Broker-Dealer that requests such documents
in the letter of transmittal. The Issuers have agreed to pay all expenses
incident to the Exchange Offer (including the expenses of one counsel for the
holder of the Securities) other than commissions or concessions of any brokers
or dealers and will indemnify the holders of the Securities (including any
Broker-Dealers) against certain liabilities, including liabilities under the
Act.
C-1
ANNEX D
[ ] CHECK HERE IF YOU ARE A BROKER-DEALER AND WISH TO RECEIVE 10
ADDITIONAL COPIES OF THE PROSPECTUS AND 10 COPIES OF ANY AMENDMENTS OR
SUPPLEMENTS THERETO.
Name: _________________________________________
Address: _________________________________________
_________________________________________
If the undersigned is not a Broker-Dealer, the undersigned represents that it
acquired the Exchange Securities in the ordinary course of its business, it is
not engaged in, and does not intend to engage in, a distribution of Exchange
Securities and it has no arrangements or understandings with any Person to
participate in a distribution of the Exchange Securities. If the undersigned is
a Broker-Dealer that will receive Exchange Securities for its own account in
exchange for Securities, it represents that the Securities to be exchanged for
Exchange Securities were acquired by it as a result of market-making activities
or other trading activities and acknowledges that it will deliver a prospectus
in connection with any resale of such Exchange Securities; however, by so
acknowledging and by delivering a prospectus, the undersigned will not be deemed
to admit that it is an "underwriter" within the meaning of the Act.
D-1