Services and Support Agreement - Premier Research Worldwide Ltd. and eResearch Technology Inc.
SERVICES AND SUPPORT AGREEMENT
This Services and Support Agreement (the "Agreement") is made as of the
1st day of January, 2000 by and between Premier Research Worldwide, Ltd., a
Delaware corporation ("Premier") and eResearch Technology, Inc., a Delaware
corporation ("eRT").
WHEREAS, Premier owns 100% of the outstanding capital stock of eRT; and
WHEREAS, Premier has contributed to eRT all of Premier's technology and
operating business subject to the liabilities thereof; and
WHEREAS, the parties recognize that it is to their material advantage
to centralize certain administrative and financial services and that such
centralized services will be most efficiently administered by eRT.
NOW, THEREFORE, is consideration of the premises and the mutual
covenants contained herein, and intending to be legally bound, the parties
hereto agree as follows:
1. Services to Be Provided by eRT. Beginning on the date of this
Agreement, eRT through its corporate staff will provide or otherwise make
available to Premier certain general corporate services, including, but not
limited to the following:
1.1 Management Support. eRT will provide management support to
Premier, including reasonable access to key management personnel of eRT for
consultation and advice regarding strategic business planning, corporate
development, acquisitions and technology. eRT will also provide assistance to
develop and implement policies and procedures related to human resources and
employee training.
1.2 Risk Management. eRT will assist Premier in the
maintenance of an appropriate risk management program. eRT shall arrange for and
pay the premium cost of liability, property, casualty, and other normal business
insurance coverage (subject to allocation of such premium pursuant to Section
6.2 hereof), provide a centralized insurance purchasing service for such
insurance coverage and manage all insurance claims under Premier's insurance
policies.
1.3 Financial Services. eRT shall provide to Premier the
financial services listed in Exhibit I to this Agreement.
1.4 Securities. eRT will provide services and assistance to
enable Premier to comply with its reporting obligations under the Securities
Exchange Act of 1934 (the "1934 Act"), and the rules and regulations of the
Nasdaq Stock Market. Such assistance will include preparation of Forms 10-K,
10-Q and 8-K under the 1934 Act. eRT will provide necessary
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resources to enable Premier to make EDGAR filings with the SEC. eRT shall
provide internal audit support services for such filings and reports, including
accounting staff as required. Accounting and financial reporting policies and
procedures will be established by the Chief Financial Officer of eRT (the "eRT
CFO"). The parties acknowledge that Premier is a reporting company under the
1934 Act and that eRT may in the future become such a reporting company. Because
of eRT's status as a wholly-owned subsidiary of eRT, the parties also
acknowledge that each party has a material interest in the financial statements
and reports of the other to insure that accounting matters are treated
consistently between the parties. Therefore, before financial statements of
either party are released publicly or are included in a filing with the SEC or
the Nasdaq Stock Market, such financial statements will be furnished to the eRT
CFO and to Premier's Chief Financial Officer for review and comment. All public
releases of financial information will be authorized in advance by both parties'
Chief Financial Officer. eRT will administer a program to promote compliance by
the officers and directors of Premier with their reporting requirements under
Section 13 and 16 of the 1934 Act. eRT shall prepare documents necessary for
officer and director compliance under Section 16 of the 1934 Act, including
Forms 3, 4, 5, 13G and 13D. eRT shall maintain detailed records and SEC receipts
of all such filings and shall administer periodic reminders to Section 16
officers and directors. eRT shall periodically provide information to officers
and directors of Premier with respect to their responsibilities under Section 16
of the Act.
1.5 Corporate Record Keeping. eRT shall maintain detailed
records of Premier's historical and current financial data. In addition, eRT
shall assist in preparing the minutes of meetings of the boards of directors and
shareholders, and shall maintain records pertaining to stock offerings,
acquisition transactions, and annual meetings.
1.6 Annual Stockholders Meetings and Proxy Statement
Preparation. eRT shall provide assistance to conduct the annual meeting of
Premier stockholders. eRT shall assist in the preparation of the notice of the
annual meeting, proxies and proxy statements related thereto, the solicitation
of proxies, and the filing of any preliminary or definitive proxy statements
with the SEC. eRT shall assist Premier in design, preparation, drafting and
distribution of its annual reports to stockholders. Preparation and distribution
costs related to the proxy materials for the annual meeting shall be paid by
Premier.
1.7 Stock Plan Administration Services. Subject to the
direction of the administrative committees of Premier compensation stock plans,
shall administer Premier's stock option plans. eRT shall maintain records of
grant dates, shares covered by option grants, vesting schedules, expiration
dates and other information necessary for proper administration of the Premier
compensatory stock plans. eRT shall also prepare stock option grant agreements
and stock option exercise notices.
1.8 Investor and Media Relations. eRT shall prepare quarterly
stock reports, track outstanding shares, communicate appropriate information to
transfer agents, provide for missing stock certificates and perform general
services pertaining to the investor relations. eRT shall upon request provide
stock status reports including stockholder statistics, earnings
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estimates, shares held by institutions and any other reports that can be
reasonably created using Premier data maintained by eRT. eRT shall assist
Premier to manage investor and media relations and to prepare press releases.
eRT shall assist Premier in its relationship with investment analysts and
institutional holders of Premier stock. eRT will also assist eRT regarding
presentations at financial conferences.
1.9 Tax Matters. eRT will assist Premier to prepare and file
state and federal income tax returns and will consult with Premier regarding tax
planning matters.
1.10 Other Services. Other routine services in addition to
those enumerated in subsections 1.1 through 1.9 shall be provided by eRT as
reasonably requested by Premier. Such other services shall include human
resources support, publications support, corporate training programs, video
teleconferencing, data and voice communications and trade show support.
2. Cooperation. Premier shall corporate with eRT in providing
information and data reasonably requested by eRT to perform its services
hereunder. The parties shall exert best efforts to coordinate with each other in
such a manner to enable eRT to furnish the services required hereunder.
3. Credit Support Services. Premier agrees to provide credit support
for eRT as eRT may reasonably require for its business and operations, subject
to a maximum financial commitment by Premier to eRT at any time of $10 million.
eRT shall reconcile on a quarterly basis cash provided by Premier and used by
eRT and shall calculate an average daily balance for such advances during each
such quarter. eRT shall be obligated to repay all such advances together with
interest on the average daily balance for each quarterly period at the prime
rate of interest as published from time to time in The Wall Street Journal.
4. Transition Support Services. Premier agrees to allow eRT to use
Premier's bank accounts and financial management and other administrative
services and systems for a reasonable period following the effective date of
this Agreement for eRT's own cash management and financial services
requirements. eRT shall use reasonable commercial efforts to establish such
accounts and systems for itself as promptly a practicable after the date hereof.
5. Insurance Programs. The parties acknowledge that Premier has in
force insurance programs that provide eRT coverage under general liability,
property and casualty, errors and omissions, umbrella liability, workers'
compensation, directors and officers liability and medical and other employee
benefit insurance programs. eRT shall evaluate the merits of having such
insurance policies transferred to eRT, continuing eRT's cover under the current
Premier programs or obtaining separate coverage for eRT. Pending such
determination, Premier agrees that eRT shall continue maintaining such coverage
in accordance with the provisions of Section 1.2 hereof for the benefit of both
Premier and eRT, subject to allocation of premiums therefor in accordance with
Section 6.2 hereof.
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6. Compensation for Services.
6.1 In consideration for the services to be provided by eRT to
Premier hereunder, Premier shall provide the credit support and transition
support services specified in Section 3-4 hereof and shall pay eRT the following
amounts:
(a) 6.25% of the salary of eRT's President and
Chief Executive Officer;
(b) 25% of the salary of eRT's Chief Financial
Officer; and
(c) a fee of $10,000 per month.
eRT shall invoice Premier monthly for such charges.
6.2 For any period during the term hereof that eRT is included
in any Premier insurance programs or policies, eRT's Chief Financial Officer
shall recommend an allocation of the premium between eRT and Premier, which
allocation shall be subject to review and approval by the Boards of Directors of
each party or any authorized committee thereof. Promptly after agreement on such
allocation, eRT shall prepare an invoice from Premier to eRT for eRT's allocated
portion of such premiums.
6.3 All invoices delivered hereunder shall be due and payable
within 30 days of the invoice date.
6.4 In the event eRT is required to commit personnel on other
resources in the performance of its obligations hereunder that are
disproportionate to the projected fees set forth in Section 6.1 hereof, the
parties agree to negotiate in good faith to adjust the monthly fee payable
pursuant to Section 6.1(c) hereof or to consider in good faith payment by
Premier to eRT of a supplemental fee in addition to the scheduled monthly fee.
6.5 eRT will require third parties with which it contracts on
behalf of Premier hereunder, including without limitation accounting, legal and
other professional service firms, insurance companies and other vendors, to
invoice Premier for their respective charges. Premier acknowledges and agrees
that eRT will cause such invoices to be paid on Premier's behalf in accordance
with the invoice terms.
7. Office Space. eRT agrees to make available appropriate office space
to Premier's Chairman and Chief Executive Officer.
8. Premier's Directors and Officers. Nothing contained herein will be
construed to relieve the directors and officers of Premier from the performance
of their respective duties or to limit the exercise of their powers in
accordance with the charter or by-laws of Premier or in accordance with any
applicable statute or regulation.
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9. Liabilities. In furnishing Premier with management advice and other
services as herein provided, neither eRT nor any of its officers, directors or
agents shall be liable to Premier or its creditors or shareholders for errors of
judgment or for anything except willful malfeasance, bad faith or gross
negligence in the performance of their duties or reckless disregard of their
obligations and duties under the terms of this Agreement. The provisions of this
Agreement are for the sole benefit of Premier and eRT and will not, except to
the extent otherwise expressly stated herein, inure to the benefit of any third
party.
10. Status. eRT shall be deemed to be an independent contractor, and
except as expressly provided or authorized in this Agreement, shall have no
authority to act for or represent Premier.
11. Notices. All notices, billings, requests, demands, approvals,
consents, and other communications which are required or may be given under this
Agreement shall be in writing and will be deemed to have been duly given if
delivered personally or sent by registered or certified mail, return receipt
requested, postage prepaid to the parties at their respective addresses set
forth below:
If to Premier:
Premier Research Worldwide, Ltd.
30 South 17th Street
Philadelphia, PA 19103
Attention: Chairman
If to eRT:
eResearch Technology, Inc.
30 South 17th Street
Philadelphia, PA 19103
Attention: President and Chief Executive Officer
12. No Assignment. This Agreement shall not be assignable except with
the prior written consent of the other party to this Agreement.
13. Applicable Law. This Agreement shall be governed by and construed
under the laws of the Commonwealth of Pennsylvania applicable to contracts made
and to be performed therein.
14. Paragraph Titles. The paragraph titles used in this Agreement are
for convenience of reference only and will not be considered in the
interpretation or construction of any of the provisions thereof.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed as a sealed instrument by their duly authorized officers as of the date
first above written.
PREMIER RESEARCH WORLDWIDE, LTD.
By:/s/ Joel Morganroth
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Joel Morganroth, M.D.
Chairman and Chief Executive Officer
eRESEARCH TECHNOLOGY, INC.
By: /s/ Joseph A. Esposito
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Joseph A. Esposito
President and Chief Executive Officer
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EXHIBIT I
FINANCIAL SERVICES PROVIDED TO PREMIER
Banking Services Administration
Select banks and establish accounts
Administer cash balances
Administer outstanding indebtedness
Administer any debt covenant compliance issues
Maintain a cash collections and disbursement system
Arrange letters of credit and cash transfers
Manage any foreign currency exchange needs
Financial Management and Information
Cash management
Pension fund management
Leasing management services
Customer financing
Information on financial markets and products
Information on foreign currency, risk assessment and hedge strategies
Arrange Credit Support
Insurance performance and bid bonds
Letters of credit
Corporate guarantees
Investment Banking Services
Advice and support for equity and debt financing
Manage relationships with debt rating agencies
Analysis, negotiations, advice and support for mergers and acquisitions