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SECURITIES AND EXCHANGE COMMISSION
SECTION 14(C) OF THE SECURITIES EXCHANGE ACT OF 1934
þ | Preliminary Information Statement. | |
o | Confidential, for Use of the Commission Only (as permitted by Rule 14c-5(d)(2)). | |
o | Definitive Information Statement. |
o | No fee required. | |
þ | Fee computed on table below per Exchange Act Rules 14c-5(g) and 0-11. |
(1) | Title of each class of securities to which transaction applies: | ||
Common Stock, $0.0001 par value. | |||
(2) | Aggregate number of securities to which transaction applies: | ||
40,339,805 shares of Common Stock (which includes 37,224,215 shares of Common Stock outstanding and 3,075,590 shares of Common Stock underlying options and 40,000 shares of restricted stock). | |||
(3) | Per unit price or other underlying value of transaction computed pursuant to Exchange Act Rule 0-11 (set forth the amount on which the filing fee and state how it was determined): | ||
The filing fee was determined based upon the sum of (A) 37,224,215 shares of Common Stock multiplied by $6.10 per share, (B) the cash-out of 2,893,361 shares of Common Stock underlying options for total consideration of $11,622,631, which reflects per share consideration of $6.10 less the aggregate exercise price per share of such shares of Common Stock and (C) 40,000 shares of restricted stock multiplied by $6.10 per share. In accordance with Section 14(g) of the Securities Exchange Act of 1934, as amended, the filing fee was determined by multiplying 0.00011610 by the sum of the preceding sentence. | |||
(4) | Proposed maximum aggregate value of transaction: | ||
$238,934,342.60 | |||
(5) | Total fee paid: | ||
$27,740.28 | |||
o | Fee paid previously with preliminary materials. | |
o | Check box if any part of the fee is offset as provided by Exchange Act Rule 0-11(a)(2) and identify the filing for which the offsetting fee was paid previously. Identify the previous filing by registration statement number, or the Form or Schedule and the date of its filing. |
(1) | Amount Previously Paid: | ||
(2) | Form, Schedule or Registration Statement No.: | ||
(3) | Filing Party: | ||
(4) | Date Filed: | ||
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520 Virginia Drive
Fort Washington, PA 19034
AND INFORMATION STATEMENT
SEND US A PROXY
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is not required and is not being requested.
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By order of the Board of Directors, | ||
Steven Bell | ||
Corporate Secretary |
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• | each share of our Common Stock issued and outstanding immediately prior to the Effective Time of the Merger (except those shares held by any of our stockholders who are entitled to and who properly exercise, and do not withdraw or lose, appraisal rights under Section 262 of the DGCL and shares owned by the Company or by Parent or Merger Sub) will be cancelled and converted automatically into the right to receive the Merger Consideration; | ||
• | each outstanding Company stock option that is vested and exercisable immediately prior to the Effective Time of the Merger will be cancelled in exchange for an amount per share of Common Stock underlying the applicable stock option equal to the excess, if any, of the Merger Consideration, over the applicable exercise price payable in respect of each share of Common Stock underlying the stock option, less any required withholdings; | ||
• | each outstanding Company stock option that is unvested immediately prior to the Effective Time of the Merger and is not contractually entitled to accelerated vesting in connection with the Merger will be exchanged by the Parent or one of its affiliates into stock options having an aggregate intrinsic value equal to the value of such unvested option; and | ||
• | each share of restricted stock will become fully vested, all other restrictions will lapse, and each such share will be converted into the right to receive the Merger Consideration. |
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• | the adoption of the Merger Agreement and approval of the transactions contemplated thereby, including the Merger, by the affirmative vote or written consent of the holders of a majority of the then outstanding shares of Common Stock, which occurred when the Principal Stockholders executed and delivered written consents to the Company, Parent and Merger Sub on December 27, 2010 as described above; |
• | the expiration or termination of the waiting period under the HSR Act; and |
• | the absence of legal prohibitions on the completion of the Merger. |
• | the Company’s representations and warranties in the Merger Agreement being true and correct in the manner discussed under “The Merger Agreement—Conditions to the Merger” beginning on page 51; |
• | the Company’s performance in all material respects of its obligations required to be performed at or prior to the Effective Time of the Merger; |
• | the absence of a material adverse effect on the Company; |
• | the delivery to Parent by the Company of a certificate signed on behalf of the Company by the chief executive officer or the chief financial officer certifying that the three immediately preceding conditions have been satisfied; |
• | the distribution of this information statement to our stockholders and the passage of at least 20 calendar days following such distribution; |
• | the termination of a certain related party transaction of the Company; and |
• | the delivery to Parent of a certificate signed by the chief executive officer or chief financial officer certifying that an interest in the Company is not a U.S. real property interest. |
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• | Parent’s and Merger Sub’s representations and warranties in the Merger Agreement being true and correct in the manner discussed under “The Merger Agreement—Conditions to the Merger” beginning on page 51; |
• | Parent’s and Merger Sub’s performance in all material respects of their obligations required to be performed prior to the Effective Time of the Merger; and |
• | the delivery to the Company by Parent of a certificate signed on behalf of Parent by a duly authorized officer of Parent certifying that the two immediately preceding conditions have been satisfied. |
• | the cash-out of all outstanding vested and exercisable stock options held by our directors and executive officers; |
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• | the receipt by our directors and officers of stock options from the Parent or one of its affiliates, in exchange for the unvested outstanding options to acquire shares of Common Stock, of stock options having an aggregate intrinsic value equal to the value of such unvested options; |
• | the acceleration of vesting and cash-out of 40,000 shares of restricted stock and options to acquire 100,000 shares of Common Stock held by one of our executive officers pursuant to existing contractual obligations; |
• | continued indemnification and insurance coverage for our current and former directors and officers for six years following the Effective Time of the Merger; and |
• | severance payments that we may owe, under the terms of their current employment agreements with the Company, to certain of our executive officers in connection with the consummation of the Merger if such officer’s employment is terminated after the Merger and such officer does not enter into a new employment agreement with the Company effective as of the Merger that supersedes such officer’s existing employment agreement. |
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Q. | What is the proposed transaction? |
A. | The proposed transaction is the acquisition of RPS by Parent through Merger Sub pursuant to the Merger Agreement. Upon the terms and subject to the satisfaction or waiver of the conditions under the Merger Agreement, Merger Sub will merge with and into RPS, with RPS being the surviving corporation and becoming a wholly-owned subsidiary of Parent. |
Q. | If the Merger is completed, what will I receive for my shares of RPS Common Stock? |
A. | If the Merger is completed, you will be entitled to receive $6.10 in cash, without interest and subject to reduction for any required withholdings, for each share of our Common Stock that you own, unless you properly exercise, and do not withdraw or lose, appraisal rights under Section 262 of the DGCL. We refer to this amount as the per share “Merger Consideration.” For example, if you own 1,000 shares of our Common Stock, you would be entitled to receive $6,100 in cash in exchange for your shares of Common Stock, subject to reduction for any required withholding tax. Except to the extent that you hold unvested options to acquire shares of Common Stock, in which case your options will be exchanged for options to acquire shares of Parent or one of its affiliates having an aggregate intrinsic value equal to the intrinsic value of your options to acquire shares of Common Stock, you will not be entitled to receive shares of the surviving corporation or Parent or any of its affiliates. |
Q. | Will the per share Merger Consideration I receive in the Merger increase if the Company’s results of operations improve or if the price of the Company’s Common Stock increases above the current per share Merger Consideration? |
A. | No. The per share Merger Consideration is fixed. |
Q. | When is the Merger expected to be completed? |
A. | Under applicable securities regulations, the Merger cannot be completed until 20 days after we mail this information statement to our stockholders. We expect the Merger to occur on or about February [ ], 2011, or as promptly as practicable thereafter. |
Q. | What happens if the Merger is not consummated? |
A. | If the Merger is not completed for any reason, stockholders will not receive any payment for their shares in connection with the Merger. Under specified circumstances in connection with the termination of the Merger Agreement, RPS may be required to pay Parent or its designees a termination fee of $10 million, and in other circumstances, Parent may be required to pay to the Company a reverse termination fee of $40 million as described under “The Merger Agreement — Termination Fees” beginning on page 54. |
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Q. | Why did I receive this information statement? |
A. | Applicable laws and regulations require us to provide you with notice of the written consent delivered by the Principal Stockholders, as well as other information, regarding the Merger, even though your vote or consent is neither required nor requested to adopt the Merger Agreement or complete the Merger. We are also providing this information statement to provide you with notice of your appraisal rights under Section 262 of the DGCL, described below. |
Q. | Why am I not being asked to vote on the Merger? |
A. | The Merger requires the adoption of the Merger Agreement by the holders of a majority of the outstanding shares of our Common Stock voting (or consenting in writing in lieu of voting) as a single class. The requisite stockholder approval was obtained following the execution of the Merger Agreement on December 27, 2010, when a written consent adopting the Merger Agreement and authorizing the transactions contemplated by the Merger Agreement, including the Merger, was delivered to the Company, Parent and Merger Sub by the Principal Stockholders, who collectively owned approximately 56.8% of our outstanding Common Stock on the Record Date. Therefore, your vote is not required and is not being sought. We are not asking you for a proxy and you are requested not to send us a proxy. |
Q. | What was the role of the Transaction Committee? |
A. | The Transaction Committee, composed solely of certain members of the Board of Directors who are not members of management of the Company (the “Transaction Committee”), was formed on November 24, 2010 to evaluate strategic alternatives, including the potential sale of the Company. Since its formation and throughout the process of evaluating strategic alternatives and negotiating the Merger Agreement, the Transaction Committee has been meeting separately from management of the Company and the rest of the Board of Directors on a regular basis to evaluate important decisions relating to this process, including the decision to commence negotiations with Parent and the decision to enter into the Merger Agreement with Parent and Merger Sub. The Board of Directors and management of the Company have kept the Transaction Committee informed as to the progress of this process to explore a sale of the Company, provided them with access to requested information, cooperated with their requests to monitor this process, and taken into account their input throughout this period. The Transaction Committee unanimously voted to recommend to the Board of Directors that the Board of Directors approve and declare advisable the Merger Agreement and the transactions contemplated thereby, including the Merger. |
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Q. | What is the recommendation of the Board of Directors regarding the Merger Agreement? |
A. | Our Board of Directors unanimously voted to approve and recommend the adoption of the Merger Agreement on December 24, 2010 and determined that the Merger and the Merger Agreement were advisable to and in the best interests of, the RPS stockholders. To review the determination of the Board of Directors, see “The Merger—Recommendation of Our Board of Directors” beginning on page 20 of this information statement. |
Q. | Am I entitled to appraisal rights? |
A. | Yes. You are entitled to appraisal rights if you properly exercise and perfect such appraisal rights in accordance with the procedures specified in Section 262 of the DGCL in connection with the Merger. See “Appraisal Rights” on page 55 of this information statement. Furthermore, this information statement constitutes notice to you of the availability of appraisal rights under Section 262 of the DGCL, a copy of which is attached to this information statement as Annex C. |
Q. | Should I send in my stock certificates now? |
A. | No. After the consummation of the Merger, Parent will arrange for a letter of transmittal to be sent to you. The per share Merger Consideration will be paid to you once you submit the letter of transmittal together with properly endorsed stock certificates, if applicable, and any other required documentation. If your shares are held in “street name” by your broker, bank or other nominee, you will receive instructions from your broker, bank or other nominee as to how to effect the surrender of your “street name” shares in exchange for the per share Merger Consideration. Please do not send your stock certificates to RPS. |
Q. | What if I lost my stock certificate? |
A. | If you are unable to submit your stock certificate because it is lost, mutilated or destroyed, you may deliver in lieu thereof an affidavit in form and substance reasonably satisfactory to the surviving corporation or the paying agent in accordance with the instructions set forth in the letter of transmittal provided to you. |
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Q. | Will I owe taxes as a result of the Merger? |
A. | The Merger will be a taxable transaction for all United States holders and Non-United States holders of our Common Stock. As a result, assuming you are a United States holder, the cash you receive in the Merger for your shares of our Common Stock will be subject to United States federal income tax and also may be taxed under applicable state, local, and other tax laws. In general, you will recognize gain or loss equal to the difference between (i) the amount of cash you receive and (ii) the adjusted tax basis of your shares surrendered. See “The Merger—Material United States Federal Income Tax Consequences of the Merger to Our Stockholders” on page 31 of this information statement for a more detailed explanation of the tax consequences of the Merger. We urge you to consult with your own tax advisor as to the particular tax consequences to you of the Merger. |
Q. | What happens if I sell my shares before completion of the Merger? |
A. | If you transfer your shares of Common Stock, you will have transferred the right to receive the Merger Consideration to be received by our stockholders in the Merger. To receive the Merger Consideration, you must hold your shares through completion of the Merger. |
Q. | Where can I find more information about RPS? |
A. | We voluntarily file periodic reports and other information with the SEC. Such reports and other information are available for inspection at the SEC’s Public Reference Room at 100 F Street, N.E., Washington, D.C. 20549. Please call the SEC at 1-800-SEC-0330 for information about these facilities. Copies of such information may be obtained by mail, upon payment of the SEC’s customary charges, by writing to the SEC at 100 F Street, N.E., Washington, D.C. 20549. The SEC also maintains a Website on the Internet at www.sec.gov that contains reports, proxy statements and other information about RPS that we file electronically with the SEC. For a more detailed description of the information available, please refer to the section entitled “Where You Can Find More Information” on page 62 of this information statement. |
Q. | Who can help answer my questions? |
A. | If you have questions about the Merger after reading this information statement, please contact RPS in writing at our principal executive offices at 520 Virginia Drive, Fort Washington, PA 19034, Attention: Corporate Secretary, or by telephone at (215) 540-0700. |
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• | a failure to consummate, or a delay in the consummation of, the Merger for various reasons; |
• | adverse economic conditions in general and in the biopharmaceutical industry in particular; |
• | future demand for our integrated solutions from the biopharmaceutical industry; |
• | trends in research and development spending; |
• | intense competition in the biopharmaceutical and CRO industries, including merger and acquisitions activity; |
• | our ability to raise sufficient additional capital to operate our business; |
• | lower than expected service revenue; |
• | unexpected costs or other liabilities; |
• | changes in laws, rules and regulations affecting our business and that of our clients; |
• | our ability to predict our revenues, gross margin and operating income accurately; |
• | expansion of our international operations; |
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• | our ability to manage our growth; |
• | adverse results of any legal proceedings; and |
• | our ability to attract or retain qualified personnel, including management, sales and marketing and scientific personnel. |
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• | determined that the Merger Agreement and the transactions contemplated by the Merger Agreement are fair to and in the best interest of the Company’s stockholders; |
• | approved and declared advisable the Merger Agreement and the consummation of the transactions contemplated by the Merger Agreement, including the Merger; |
• | directed that the Merger Agreement be submitted for adoption by the Company’s stockholders; and |
• | recommended to the Company’s stockholders that they adopt the Merger Agreement. |
• | the belief of the Transaction Committee and the full Board of Directors that, as a result of negotiations between the parties, we have obtained the highest price per share that Parent is willing to pay; |
• | the fact that the consideration to be paid to the Company’s stockholders under the Merger Agreement is in the form of cash, which will provide liquidity and certainty of value to the Company’s stockholders; |
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• | the financial analysis presented by representatives of Jefferies, as well as the opinion of Jefferies to the Board of Directors that, as of December 27, 2010 and based upon and subject to the various assumptions made, procedures followed, matters considered and limitations on the scope of the review undertaken by Jefferies set forth in its opinion, the Merger Consideration of $6.10 per share in cash to be received by the holders of Common Stock pursuant to the Merger Agreement was fair, from a financial point of view, to such holders, as more fully described in the section entitled “Opinion of the Financial Advisor” beginning on page 23; |
• | the support of the Principal Stockholders, who will receive the same per share Merger Consideration as will each of the Company’s other stockholders; |
• | the participation of both strategic and financial bidders in the sale process, and the belief of the Board of Directors, based upon its active participation, with Jeffries’ assistance, in the sale process, that all bidders were treated fairly and that the Board of Directors and the Company’s management worked to maximize value for all of the Company’s stockholders; |
• | the likelihood that the Merger would be consummated, in light of (among other things) the lack of a financing condition, the reputation of WPX, and Parent’s agreement in the Merger Agreement to use its reasonable best efforts to consummate the Merger (subject to the terms and conditions of the Merger Agreement); |
• | the anticipated receipt upon signing of the Merger Agreement of an executed financing commitment from Parent’s source of equity financing in amounts that Parent and Merger Sub represented would be sufficient to satisfy all of Parent’s obligations under the Merger Agreement; |
• | the fact that the terms of the Merger Agreement were determined through negotiations between Parent, with the advice of its advisors, on the one hand, and the Transaction Committee and the Board of Directors, with the advice of their respective advisors, on the other hand; |
• | the anticipated delivery upon signing of the Merger Agreement by WPX of the Guarantee in favor of the Company, pursuant to which WPX would guarantee payment of Parent’s payment obligation either under the Merger Agreement or as a result of the termination of the Merger Agreement; and |
• | that RPS stockholders who meet certain conditions will be entitled to appraisal rights under the DGCL in connection with the Merger. |
• | the risk that the pendency of the Merger could materially adversely effect the Company’s relationships with its customers, suppliers and any other persons with whom the Company has business relationships, or pose difficulties in attracting and retaining key employees; |
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• | the possibility that the consummation of the Merger may be delayed or not occur at all, and the adverse impact such event would have on the Company and its business; |
• | the fact that Parent and Merger Sub are newly-formed corporations with no assets other than the Merger Agreement and the equity financing commitment; |
• | that the Company’s executive officers and directors may have interests, directly or indirectly, in the Merger that are different from, or in addition to, those of the Company’s other stockholders, including those related to Parent’s agreement to indemnify the Company’s directors and officers against certain claims and liabilities; and |
• | that an all cash transaction generally would be a taxable transaction to the Company’s stockholders for United States federal income tax purposes; |
• | that under the terms of our employment agreements with them, we may owe severance to one or more of our executive officers in connection with the consummation of the Merger if such officer’s employment is terminated after the Merger and such officer does not enter into a new employment agreement with the Company effective as of the Merger that supersedes the officer’s existing employment agreement as described more fully below under “The Merger—Interests of Directors and Officers in the Merger.” |
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• | reviewed a draft dated December 23, 2010 of the Merger Agreement; |
• | reviewed certain publicly available financial and other information about the Company; |
• | reviewed certain information furnished to Jefferies by the Company’s management, including financial forecasts and analyses, relating to the business, operations and prospects of the Company; |
• | held discussions with members of senior management of the Company concerning the matters described in the second and third bullet points above, including the risks and uncertainties of achieving the financial forecasts described in the third bullet point above; |
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• | compared the financial and operating performance of the Company with publicly available information concerning certain other publicly traded companies Jefferies deemed relevant and reviewed the current and historical market prices and valuation multiples of the equity securities of such other companies; |
• | compared the proposed financial terms of the Merger with the financial terms of certain other transactions that Jefferies deemed relevant; and |
• | conducted such other financial studies, analyses and investigations as Jefferies deemed appropriate. |
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• | ICON Clinical Research, Inc., |
• | Kendle International Inc., |
• | PAREXEL International Corporation and |
• | Pharmaceutical Product Development, Inc. |
• | the enterprise value divided by estimated earnings before interest, taxes, depreciation and amortization (“EBITDA”), adjusted to account for stock-based compensation, audit fees, consulting fees related to compliance with the Sarbanes-Oxley Act of 2002, director & officer insurance, and legal expenses (“Adjusted EBITDA”), for calendar year 2010 (“Enterprise Value/2010E Adjusted EBITDA”); |
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• | the enterprise value divided by estimated Adjusted EBITDA for calendar year 2011 (“Enterprise Value/2011E Adjusted EBITDA”); |
• | the price per share divided by estimated earnings per share (“EPS”), adjusted on an after-tax basis to account for stock-based compensation, audit fees, consulting fees related to compliance with the Sarbanes-Oxley Act of 2002, director & officer insurance, and legal expenses (“Adjusted EPS”) for calendar year 2010 (“Price/2010E Adjusted EPS”); and |
• | the price per share divided by estimated Adjusted EPS for calendar year 2011 (“Price/2011P EPS”). |
Late-Stage Clinical Research Companies
Benchmark | High | Low | Mean | Median | ||||||||||||
Enterprise Value/2010E Adjusted EBITDA | 11.2 | x | 8.5 | x | 9.4 | x | 8.9 | x | ||||||||
Enterprise Value/2011E Adjusted EBITDA | 8.5 | x | 7.4 | x | 7.8 | x | 7.7 | x | ||||||||
Price/2010E Adjusted EPS | 26.6 | x | 15.4 | x | 21.3 | x | 21.6 | x | ||||||||
Price/2011P Adjusted EPS | 18.7 | x | 14.5 | x | 16.5 | x | 16.5 | x |
Reference Ranges and Implied Value Ranges
Reference | Implied Value | |||
Benchmark | Range | Range | ||
Enterprise Value/2010E Adjusted EBITDA | 8.0x – 9.0x | $3.85 – $4.38 | ||
Enterprise Value/2011E Adjusted EBITDA | 7.0x – 8.0x | $5.72 – $6.59 | ||
Price/2010E Adjusted EPS | 18.0x – 20.0x | $2.41 – $2.68 | ||
Price/2011P Adjusted EPS | 14.0x – 16.0x | $5.92 – $6.76 |
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Date Announced | Acquiror | Target | ||
August 2010 | Medco Health Solutions, Inc. | United Biosource Corporation | ||
July 2009 | Lion Holdings, Inc. | Life Science Research, Inc. | ||
February 2009 | JLL Partners | PharmaNet Development Group, Inc. | ||
June 2008 | PAREXEL International Corporation | ClinPhone plc | ||
January 2008 | WuXi PharmaTech (Cayman) Inc. | AppTec Laboratory Services, Inc. | ||
July 2007 | Genstar Capital, LLC | PRA International | ||
July 2007 | American Capital | WIL Research Holding Company, Inc. | ||
June 2007 | PAREXEL International Corporation | APEX International Clinical Research Co., LTD | ||
May 2006 | Kendle International, Inc. | Charles River Laboratories International, Inc. (Phase II-IV Clinical Services operations) |
Benchmark | High | Low | Mean | Median | ||||||||||||
Enterprise Value/LTM Adjusted EBITDA | 17.4 | x | 4.3 | x | 12.3 | x | 12.6 | x |
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MERGER TO OUR STOCKHOLDERS
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• | the gain is effectively connected with a trade or business of the Non-United States Holder in the United States (and, if required by an applicable income tax treaty, is attributable to a United States permanent establishment of the Non-United States Holder); |
• | the Non-United States Holder is an individual who is present in the United States for 183 days or more in the taxable year of that disposition, and certain other conditions are met; or |
• | the Non-United States Holder owned (actually or constructively) more than 5% of our Common Stock at any time during the five years preceding the Merger, and we are or have been a “United States real property holding corporation” for United States federal income tax purposes, which we do not believe to be the case. |
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Options that Will Vest as a | ||||||||||||||||
Vested Options | result of the Merger | |||||||||||||||
Names | Shares | Value($) | Shares | Value($) | ||||||||||||
Executive Officers: | ||||||||||||||||
Daniel M. Perlman | 450,000 | $ | 472,500 | — | $ | 0 | ||||||||||
Harris Koffer | 1,019,279 | $ | 4,865,200 | — | $ | 0 | ||||||||||
Steven Bell | 253,104 | $ | 574,258 | 100,000 | $ | 398,000 | ||||||||||
Janet L. Brennan | 83,445 | $ | 444,762 | — | $ | 0 | ||||||||||
Samir Shah | 130,610 | $ | 689,984 | — | $ | 0 | ||||||||||
Directors: | ||||||||||||||||
Thomas R. Armstrong | — | $ | 0 | — | $ | 0 | ||||||||||
Jack H. Dean | 3,750 | $ | 9,000 | — | $ | 0 | ||||||||||
James R. Macdonald | — | $ | 0 | — | $ | 0 | ||||||||||
Warren W. Myers | 3,750 | $ | 9,000 | — | $ | 0 | ||||||||||
Daniel Raynor | — | $ | 0 | — | $ | 0 | ||||||||||
Stephen E. Stonefield | 2,500 | $ | 10,875 | — | $ | 0 | ||||||||||
Peter M. Yu | — | $ | 0 | — | $ | 0 |
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Restricted Shares | ||||||||
(“in the money”) | ||||||||
Names | Shares | Value($) | ||||||
Executive Officer: | ||||||||
Steven Bell | 40,000 | $ | 244,000 |
• | “cause” generally means: |
• | conviction of a felony; |
• | indictment for a felony involving dishonesty or fraud or the commission of any other act or omission involving dishonesty or fraud; or | ||
• | ogross negligence or willful misconduct; and |
• | “good reason” generally means: |
• | a material breach of our obligations to Mr. Perlman under the employment agreement that is not remedied within a specified amount of time; |
• | his relocation outside the metropolitan Philadelphia area; |
• | a material change in his job description, office title, or responsibilities, excluding promotions or increased responsibility; |
• | his removal from our Board of Directors without cause; or |
• | our failure to nominate him as a candidate for election to our Board of Directors. |
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• | Option one permits Mr. Perlman to choose to be bound by the employment agreement’s non-competition and non-solicitation covenants for a period of 18 months following his termination or resignation and entitles him to receive any amounts earned but not yet paid under the employment agreement, plus a lump sum payment equal to 2.99 times the sum of his then current annual base salary plus his bonus for the previous year. Mr. Perlman will also be entitled to receive, for a period of three years following the later of the change of control, termination or resignation, medical benefits for him, his spouse and any dependents to the same extent he was so entitled prior to such termination or resignation, at our expense if and to the extent we were paying for such benefits at the time of such termination or resignation. If the Company’s medical benefits plans do not allow for such payment, we will pay Mr. Perlman a lump sum equal to the amount we would have paid for such coverage over the three-year period had such coverage been permitted. Mr. Perlman, his spouse, and any dependents would also be entitled to such rights as he or they may have to continue coverage at his sole expense under COBRA for the COBRA coverage period following the expiration of the period during which he, his spouse and any dependents continue to receive such medical benefits coverage. |
• | Option two permits Mr. Perlman to choose not to be bound by the employment agreement’s non-competition and non-solicitation covenants and entitles him to receive any amounts earned but not yet paid under the employment agreement plus a lump sum payment equal to the sum of his then current annual base salary plus his bonus for the previous year. Mr. Perlman would also receive the same continuation of medical benefits, or lump sum payment if continued coverage is not permitted, described above, except that such medical benefits would extend only for a period of one year. |
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• | “cause” generally means: |
• | conviction of a felony or the commission of any other act or omission involving dishonesty or fraud; |
• | failure of the executive to perform his or her duties as directed by our Board of Directors, provided those duties are reasonable and consistent with the duties generally performed by an executive with the same title; |
• | gross negligence or willful misconduct; or |
• | material breach of the employment agreement; and |
• | “good reason” generally means: |
• | a material alteration or reduction in the executive’s duties; |
• | a reduction in the executive’s compensation package; or |
• | a requirement that the executive be based at a location in excess of 40 miles from the employee’s current residence. |
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Change of Control | ||||
Name | Severance Payment | |||
Daniel M. Perlman (1) | $ | 1,892,452 | ||
Steven Bell | $ | 1,074,382 |
(1) | Assumes Mr. Perlman agrees to be bound by the non-competition and non-solicitation provisions of his employment agreement for a period of 18 months. If he did not agree to be bound by the non-competition and non-solicitation provisions of his employment agreement, the severance amount would be reduced to $632,825. Mr. Perlman may also elect coverage under COBRA for 18 months, which we would pay if so elected. |
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• | the certificate is properly endorsed or shall otherwise be in proper form for transfer; and |
• | the person requesting such payment (a) pays any transfer or other taxes resulting from the payment to a person other than the registered holder of the certificate or (b) establishes that the tax has been paid or is not applicable. |
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• | organization, good standing and authorization of RPS and its subsidiaries; |
• | the Company’s and its subsidiaries’ qualifications to do business; |
• | the Company’s capitalization, including the particular number of outstanding shares of the Company’s Common Stock, stock options and restricted stock; |
• | the accuracy of the Company’s organizational documents; |
• | the Company’s subsidiaries and that such subsidiaries are wholly-owned free and clear of any liens; |
• | no consents required in connection with the Merger, other than specifically identified consents; |
• | the absence of any violation or conflict with the Company’s and its subsidiaries’ organizational documents, applicable law or certain of the Company’s and its subsidiaries’ contracts as a result of the Merger; |
• | the timely filing and furnishing, as applicable, of SEC reports; |
• | the Company’s and its subsidiaries’ consolidated financial statements and internal controls over financial reporting; |
• | the absence of undisclosed liabilities and off-balance sheet arrangements; |
• | the absence of any changes in the conduct of the business of RPS and its subsidiaries; |
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• | the absence of investigations and legal proceedings involving RPS and its subsidiaries; |
• | material contracts of RPS and its subsidiaries; |
• | compliance with applicable law, including the United States Foreign Corrupt Practices Act of 1977 and anti-corruption laws; |
• | absence of related party transactions; |
• | tax matters; |
• | employee benefit plans and employment matters; |
• | intellectual property matters; |
• | insurance matters; |
• | real property and personal property matters; |
• | the Company’s customers; |
• | environmental matters; |
• | permit and compliance with laws matters; |
• | opinion of financial advisor; |
• | this information statement; |
• | the absence of broker fees; and |
• | state takeover statutes. |
• | changes generally affecting the economy, financial, securities or credit markets (including changes in interest rates or the availability of credit financing) in the United States; |
• | any natural disaster, acts of terror, or acts of war; |
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• | changes that are a result of factors generally affecting the pharmaceutical or clinical research organization industries in which the Company and its subsidiaries or their customers primarily operate; |
• | changes in laws; |
• | the public announcement of the transactions contemplated by the Merger Agreement; and |
• | any action taken by the Company as expressly required by the Merger Agreement or any action taken by the Company at the express written request of Parent. |
• | organization, good standing and authorization of Parent and Merger Sub; |
• | required consents in connection with the Merger; |
• | the absence of any violation or conflict with Parent’s and Merger Sub’s organizational documents, applicable law or certain of Parent’s or Merger Sub’s contracts as a result of the Merger; |
• | the availability of funds to consummate the Merger and the other transactions contemplated by the Merger Agreement; |
• | ownership of Common Stock; |
• | the absence of investigations and legal proceedings involving Parent and Merger Sub; and |
• | information supplied by Parent and Merger Sub in this information statement. |
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• | solicit, initiate, knowingly take any action to facilitate or encourage the submission of a takeover proposal; |
• | conduct or engage in any discussions or participate in any negotiations regarding a takeover proposal or make non-public information available to any third parties; or |
• | enter into any agreement in principle, letter of intent, term sheet or similar agreement contract with respect to a takeover proposal. |
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• | furnish access and information with respect to the Company and its subsidiaries to the third party that made the takeover proposal, provided that such information had previously been made available to Parent or is promptly made available to Parent at the time it was made available to the third party, and also provided that the third party receiving access and information was subject to confidentiality obligations similar to those of the confidentiality agreement between the Company and Parent; and |
• | participate in discussions and negotiations regarding the takeover proposal. |
• | the superior proposal is not a result of a breach by RPS of the restrictions on solicitation described above; |
• | the Board of Directors concludes in good faith, following consultation with its outside legal counsel and financial advisors, that its failure to terminate the Merger Agreement would be inconsistent with its fiduciary duties under applicable law; |
• | RPS provides written notice to Parent at least four business days in advance that it intends to terminate the Merger Agreement, which notice is required to specify the basis therefor and attach the most current version of any contract relating to the transaction that constituted such superior proposal, the identity of the third party making such superior proposal and any other material terms and conditions of such superior proposal; |
• | Parent does not make, within four days after receipt of such notice described above, a binding, written and complete proposal that our Board of Directors determined in good faith would make the superior proposal not a superior proposal; and |
• | before or concurrently with any termination in connection with a superior proposal, RPS pays Parent or its designees the termination fee, described below under “The Merger Agreement—Termination Fees.” |
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• | direct or indirect acquisition or purchase (whether by merger, consolidation, business combination, recapitalization, sale, liquidation, dissolution, winding-up, spin-off, split-off, share exchange or similar transaction, or by lease, license, long-term supply arrangements or other transaction having the same economic effect as an acquisition) of (i) assets (including for the purpose of this definition the outstanding equity securities of any subsidiary of RPS) or businesses representing 15% of the fair market value of the Company’s consolidated assets or to which 15% or more of the Company’s consolidated net revenues or net income are attributable, or (ii) 15% or more of the equity interests of RPS; |
• | any tender offer or exchange offer that if consummated would result in any person or group beneficially owning 15% or more of the voting equity interests of RPS; or |
• | any combination thereof. |
• | is reasonably likely to be consummated in accordance with its terms, after taking into account all legal, financial, regulatory and other aspects of such takeover proposal (including the expected timing and likelihood of consummation) and the Merger Agreement (after taking into account any revisions to the Merger Agreement made or proposed in writing by the Parent prior to the time of the determination), including financing and the identity of the person or group making the takeover proposal; and |
• | would result in a transaction more favorable to the stockholders of the Company from a financial point of view than the transactions provided for in the Merger Agreement (after taking into account any revisions to the Merger Agreement made or proposed in writing by the Parent prior to the time of the determination). |
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• | the adoption of the Merger Agreement and approval of the transactions contemplated thereby, including the Merger, by the affirmative vote or written consent of the holders of the majority of the then outstanding shares of Common Stock, which occurred when the Principal Stockholders executed and delivered written consent to the Company, Parent and Merger Sub on December 27, 2010 as described above; |
• | the expiration or termination of the waiting period under the HSR Act; and |
• | the absence of legal prohibitions on the completion of the Merger. |
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• | certain of the Company’s representations and warranties relating to capitalization and ownership of its subsidiaries must be true in all respects as of the date of the Merger Agreement and immediately prior to the Effective Time; |
• | the Company’s representations and warranties (disregarding all qualifications to “materiality” or “material adverse effect”), other than those set forth in the immediately preceding condition, must be true and correct in all respects as of the date of the Merger Agreement and immediately prior to the Effective Time; |
• | other than certain representations and warranties referred to in the two immediately preceding conditions, the Company’s representations and warranties relating to (among other things) organization, standing, capitalization, ownership of its subsidiaries, authority and approval, absence of certain changes and events, and related party transactions must be true and correct in all material respects as of the date of the Merger Agreement and immediately prior to the Effective Time; |
• | the Company’s performance in all material respects of its obligations required to be performed at or prior to the Effective Time of the Merger; |
• | the absence of a material adverse effect on the Company; |
• | the delivery to Parent by the Company of a certificate signed on behalf of the Company by the chief executive officer or the chief financial officer certifying that the five immediately preceding conditions have been satisfied; |
• | the distribution of this information statement to our stockholders and the passage of at least 20 calendar days following such distribution; |
• | the termination of a certain related party transaction of the Company; and |
• | the delivery to Parent of a certificate signed by the chief executive officer or chief financial officer certifying that an interest in the Company is not a U.S. real property interest. |
• | Parent’s and Merger Sub’s representations and warranties in the Merger Agreement must be true and correct in all respects as of the date of the Merger Agreement and immediately prior to the Effective Time, except where the failure of such representations and warranties to be so true and correct would not reasonably be expected to have, individually or in the aggregate, a material adverse effect on Parent’s and Merger Sub’s ability to consummate the transactions contemplated by the Merger Agreement; |
• | Parent’s and Merger Sub’s performance in all material respects of their obligations required to be performed prior to the Effective Time of the Merger; and |
• | the delivery to the Company by Parent of a certificate signed on behalf of Parent by a duly authorized officer of Parent certifying that the two immediately preceding conditions have been satisfied. |
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• | by mutual written consent of each of Parent and RPS; |
• | by either Parent or RPS: |
• | if the Merger has not been consummated on or before April 26, 2011 (the “End Date”), except that the right to terminate the Merger Agreement under this clause will not be available to any party whose failure to fulfill any obligation under the Merger Agreement has been a principal cause of or resulted in the failure to consummate the Merger; or |
• | if any court or governmental authority has taken any action enjoining or prohibiting the consummation of the Merger and that action has become final and non-appealable, except that the right to terminate the Merger Agreement under this clause will not be available to any party whose failure to fulfill any obligation under the Merger Agreement has been a principal cause of or resulted in the action enjoining or prohibiting the consummation of the Merger; |
• | by Parent, if: |
• | the Company enters into or publicly announces its intention to enter into an acquisition agreement with another party; |
• | RPS breaches or fails to perform any of its representations, warranties, covenants or agreements under the Merger Agreement that would cause certain conditions to closing not to be satisfied and such breach or failure to perform is not cured within 30 days following receipt of written notice of such breach or failure from Parent; or |
• | stockholders holding a majority of the outstanding shares of Common Stock entitled to vote on the Merger Agreement do not execute and deliver written consents in favor of adoption of the Merger Agreement by 5:00 p.m. New York City time on the business day following the execution of the Merger Agreement, which occurred when the Principal Stockholders executed and delivered written consents on December 27, 2010 adopting the Merger Agreement; |
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• | by RPS, if: |
• | the Board of Directors authorizes the Company, in compliance with the limitations described under “The Merger Agreement—Restrictions on Solicitation,” to enter into an acquisition agreement in respect of a superior proposal; or |
• | if Parent or Merger Sub breaches or fails to perform any of its representations, warranties, covenants or agreements under the Merger Agreement that would cause certain conditions to closing not to be satisfied and such breach or failure to perform is not cured within 30 days following receipt of written notice of such breach or failure from RPS. |
• | If Parent terminates the Merger Agreement because stockholders holding a majority of the outstanding shares of Common Stock entitled to vote on the Merger Agreement do not execute and deliver written consents in favor of adoption of the Merger Agreement by 5:00 p.m. New York City time on the business day following the execution of the Merger Agreement, which occurred when the Principal Stockholders executed and delivered written consents on December 27, 2010 adopting the Merger Agreement; |
• | If Parent terminates the Merger Agreement because the Company enters into or publicly announces its intention to enter into an acquisition agreement with another party; |
• | If the Company terminates the Merger Agreement to enter into an acquisition agreement with respect to a superior proposal; and |
• | If Parent terminates the Merger Agreement because the Company breaches or fails to perform any of its representations, warranties, covenants or agreements under the Merger Agreement or if either the Company or Parent terminates the Merger Agreement because a court or governmental authority has taken any action enjoining or prohibiting the consummation of the Merger, and, in each case, (a person other than Parent or WPX) has made a takeover proposal prior to the termination of the Merger Agreement and within 12 months of that termination, the Company enters into a definitive agreement to consummate or has consummated any takeover proposal, provided that, solely for these purposes, references to “15%” in the term “takeover proposal” would be deemed references to “50%.” |
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EXECUTIVE OFFICERS
Shares Beneficially Owned | ||||||||
Name and Address of Beneficial Holder | Shares | Percentage | ||||||
Named Executive Officers and Directors | ||||||||
Daniel M. Perlman (1) | 3,001,613 | 8.1 | % | |||||
Harris Koffer (2) | 1,019,279 | 2.7 | % | |||||
Steven Bell (3) | 468,265 | 1.2 | % | |||||
Janet L. Brennan (4) | 569,730 | 1.5 | % | |||||
Samir Shah (5) | 280,042 | * | ||||||
Thomas R. Armstrong (6) | 9,237,673 | 24.8 | % | |||||
Jack H. Dean (2) | 3,750 | * | ||||||
James R. Macdonald (7) | 3,454,127 | 9.3 | % | |||||
Warren M. Myers (2) | 3,750 | * | ||||||
Daniel Raynor (8) | 5,766,604 | 15.5 | % | |||||
Stephen E. Stonefield (9) | 5,450 | * | ||||||
Peter M. Yu (6) | 9,237,673 | 24.8 | % | |||||
All directors and executive officers as a group (consists of 12 persons) (10) | 23,808,618 | 63.8 | % | |||||
5% Stockholders | ||||||||
Pangaea One Acquisition Holdings (6) | 9,237,673 | 24.8 | % | |||||
The Argentum Group (8) | 5,719,441 | 15.3 | % | |||||
The Productivity Fund IV (7) | 3,454,127 | 9.3 | % | |||||
Lehman Brothers International (Europe) (11) | 2,142,736 | 5.7 | % |
* | Represents beneficial ownership of less than one percent. | |
(1) | Includes 450,000 shares issuable upon the exercise of options that are exercisable within 60 days of December 31, 2010. | |
(2) | Consists solely of shares issuable upon the exercise of options that are exercisable within 60 days of December 31, 2010. | |
(3) | Includes 252,560 shares issuable upon the exercise of options that are exercisable within 60 days of December 31, 2010, and an additional 40,000 shares of restricted stock that are subject to repurchase by us. Mr. Bell has voting power with respect to the restricted shares but does not have investment power with respect to such shares until our repurchase option lapses. | |
(4) | Includes 83,445 shares issuable upon the exercise of options that are exercisable within 60 days of December 31, 2010. | |
(5) | Includes 130,610 shares issuable upon the exercise of options that are exercisable within 60 days of December 31, 2010. |
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(6) | Consists of 7,862,010 shares of common stock held by Pangaea One Acquisition Holdings I, LLC, or Pangaea, and 1,452,324 shares of common stock held by Pangaea One Acquisition Holdings II, LLC, or Pangaea II, which is a wholly-owned subsidiary of Pangaea. Pangaea One GP2 (Cayman), Co. is the general partner of Pangaea One GP2 (Cayman), L.P., which is the general partner of Pangaea One Parallel Fund, L.P., referred to collectively as Pangaea One GP2. Pangaea One GP (Cayman), Co. is the general partner of Pangaea One GP (Cayman), L.P., which is the general partner of Pangaea One (Cayman), L.P., referred to collectively as Pangaea One GP. Pangaea One GP, LLC is the general partner of both Pangaea One, L.P., referred to as Pangaea One DE GP, and Pangaea One Parallel Fund (B), L.P., referred to as Pangaea One Parallel GP. Pangaea One GP2, Pangaea One GP, Pangaea One DE GP, and Pangaea One Parallel GP each own a minority percentage of the membership interests of Pangaea and together own all of the outstanding membership interests of Pangaea. Mr. Armstrong and Mr. Yu, through the investment committee of Pangaea One GP2, Pangaea One GP, Pangaea One DE GP, and Pangaea One Parallel GP, have shared voting and investment power over the shares held by Pangaea and Pangaea II. Mr. Armstrong and Mr. Yu have disclaimed such beneficial ownership. Pursuant to a previous agreement we entered with Pangaea, Pangaea had the right to nominate and have elected up to two directors to our Board of Directors as long as it owns at least 20% of our outstanding common stock, and one director as long as it owns at least 10% of our outstanding common stock. Pangaea nominated, our Board of Directors appointed, and our stockholders elected Mr. Armstrong and Mr. Yu as directors at our 2008 and 2010 annual meetings of stockholders, respectively. The address for Messrs. Armstrong and Yu is c/o Cartesian Capital Group, LLC, 505 Fifth Avenue, 15th Floor New York, NY 10017. | |
(7) | Consists of shares of common stock owned of record by The Productivity Fund IV, L.P., which beneficially owns 3,326,213 shares, and The Productivity Fund IV Advisors Fund, L.P., which beneficially owns 127,914 shares, which are referred to collectively as the Productivity Funds. Mr. Macdonald is a managing director of First Analysis Corporation, which is the manager of First Analysis Venture Operations and Research, L.L.C., which is the managing member of First Analysis Management Company IV, L.L.C., which is the general partner of the Productivity Funds. Mr. Macdonald may be deemed to have beneficial ownership over the shares held by the Productivity Funds. Mr. Macdonald disclaims such beneficial ownership. The address for Mr. Macdonald is c/o First Analysis Corporation, One South Wacker Drive, Suite 3900 (39th floor), Chicago, Illinois 60606. | |
(8) | Consists of shares of common stock owned of record by Argentum Capital Partners, L.P, or ACP, which beneficially owns 905,632 shares, Argentum Capital Partners II, L.P., or ACP II, which beneficially owns 4,813,809 shares, and 47,163 shares owned of record by CGM IRA Custodian for the benefit of Daniel Raynor. Mr. Raynor is the managing member of Argentum Investments, LLC, which is the managing member of Argentum Partners II, L.P., which is the general partner of ACP II. Mr. Raynor is also the chairman of B.R. Associates, Inc., which is the general partner of ACP. Mr. Raynor may be deemed to have beneficial ownership over the shares held by these entities. Mr. Raynor disclaims such beneficial ownership. The address for Mr. Raynor is c/o The Argentum Group, 60 Madison Avenue, Suite 701, New York, NY 10010. | |
(9) | Includes 2,500 shares issuable upon the exercise of options that are exercisable within 60 days of December 31, 2010. | |
(10) | Includes 1,944,229 shares issuable upon the exercise of options that are exercisable within 60 days of December 31, 2010 and the shares identified in footnotes (6), (7) and (8). Also includes 40,000 shares of restricted stock that are subject to repurchase by us. | |
(11) | The address for Lehman Brothers International (Europe) is c/o PricewaterhouseCoopers LLP, 1 Embankment Place, London WC2N 6RH25, United Kingdom. |
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INFORMATION
100 F Street N.E.
Washington, D.C. 20549
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Attention: Corporate Secretary
520 Virginia Drive
Fort Washington, PA 19034
• | our Annual Report on Form 10-K for the year ended December 31, 2009; |
• | our Quarterly Reports on Form 10-Q for the quarters ended March 31, 2010, June 30, 2010 and September 30, 2010; and |
• | our Current Reports on Form 8-K filed with the SEC on March 24, 2010, May 14, 2010, June 2, 2010, August 6, 2010, August 13, 2010, November 2, 2010, November 15, 2010 and December 28, 2010 (in each case, only to the extent filed and not furnished). |
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ARTICLE I THE MERGER | 2 | |||
Section 1.01 The Merger | 2 | |||
Section 1.02 Closing | 2 | |||
Section 1.03 Effective Time | 2 | |||
Section 1.04 Effects of the Merger | 2 | |||
Section 1.05 Certificate of Incorporation; By-laws | 3 | |||
Section 1.06 Directors | 3 | |||
Section 1.07 Officers | 3 | |||
ARTICLE II EFFECT OF THE MERGER ON CAPITAL STOCK | 3 | |||
Section 2.01 Effect of the Merger on Capital Stock | 3 | |||
Section 2.02 Surrender and Payment | 4 | |||
Section 2.03 Dissenting Shares | 6 | |||
Section 2.04 Adjustments | 6 | |||
Section 2.05 Withholding Rights | 6 | |||
Section 2.06 Lost Certificates | 7 | |||
Section 2.07 Treatment of Stock Options and Other Stock-based Compensation | 7 | |||
ARTICLE III REPRESENTATIONS AND WARRANTIES OF THE COMPANY | 8 | |||
Section 3.01 Organization; Standing and Power; Charter Documents; Minutes; Subsidiaries | 8 | |||
Section 3.02 Capital Structure | 9 | |||
Section 3.03 Authority; Non-contravention; Governmental Consents; Etc. | 11 | |||
Section 3.04 SEC Filings; Financial Statements | 14 | |||
Section 3.05 Absence of Certain Changes or Event | 16 | |||
Section 3.06 Taxes | 16 | |||
Section 3.07 Intellectual Property | 19 | |||
Section 3.08 Compliance; Permits | 21 | |||
Section 3.09 Litigation | 21 | |||
Section 3.10 Brokers’ and Finders’ Fees | 21 | |||
Section 3.11 Related Party Transactions | 22 | |||
Section 3.12 Employee Matters | 22 | |||
Section 3.13 Real Property and Personal Property Matters | 24 | |||
Section 3.14 Environmental Matters | 25 | |||
Section 3.15 Health Care Matters | 26 | |||
Section 3.16 Material Contracts | 27 | |||
Section 3.17 Insurance | 29 | |||
Section 3.18 Customers | 29 | |||
Section 3.19 FCPA | 30 |
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ARTICLE IV REPRESENTATIONS AND WARRANTIES OF PARENT AND MERGER SUB | 30 | |||
Section 4.01 Organization | 30 | |||
Section 4.02 Authority; Non-contravention; Governmental Consents | 30 | |||
Section 4.03 Information Statement | 31 | |||
Section 4.04 Financial Capability | 31 | |||
Section 4.05 Legal Proceedings | 32 | |||
Section 4.06 Ownership of Company Common Stock | 32 | |||
Section 4.07 Guarantee | 32 | |||
ARTICLE V COVENANTS | 32 | |||
Section 5.01 Conduct of Business of the Company | 32 | |||
Section 5.02 No Control of Other Party’s Business | 36 | |||
Section 5.03 Other Actions | 36 | |||
Section 5.04 Access to Information; Confidentiality | 36 | |||
Section 5.05 No Solicitation | 37 | |||
Section 5.06 Information Statement; Merger Consent | 39 | |||
Section 5.07 Notices of Certain Events | 40 | |||
Section 5.08 Transaction Litigation | 40 | |||
Section 5.09 Employees; Benefit Plans | 41 | |||
Section 5.10 Directors’ and Officers’ Indemnification and Insurance | 42 | |||
Section 5.11 Reasonable Best Efforts | 43 | |||
Section 5.12 Public Announcements | 45 | |||
Section 5.13 Takeover Statutes | 45 | |||
Section 5.14 Financing; Updated Financial Information | 46 | |||
Section 5.15 Section 16 Matters | 47 | |||
Section 5.16 Further Assurances | 47 | |||
Section 5.17 Termination of Certain Affiliate Contracts | 47 | |||
Section 5.18 Resignation of Directors | 47 | |||
ARTICLE VI CONDITIONS | 47 | |||
Section 6.01 Conditions to Each Party’s Obligation to Effect the Merger | 47 | |||
Section 6.02 Conditions to Obligations of Parent and Merger Sub | 48 | |||
Section 6.03 Conditions to Obligation of the Company | 49 | |||
ARTICLE VII TERMINATION, AMENDMENT AND WAIVER | 49 | |||
Section 7.01 Termination By Mutual Consent | 49 | |||
Section 7.02 Termination By Either Parent or the Company | 49 | |||
Section 7.03 Termination By Parent | 50 | |||
Section 7.04 Termination By the Company | 50 | |||
Section 7.05 Notice of Termination; Effect of Termination | 51 | |||
Section 7.06 Fees and Expenses | 51 | |||
Section 7.07 Amendment | 53 | |||
Section 7.08 Extension; Waiver | 53 |
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ARTICLE VIII MISCELLANEOUS | 53 | |||
Section 8.01 Definitions | 53 | |||
Section 8.02 Interpretation; Construction | 63 | |||
Section 8.03 Survival | 63 | |||
Section 8.04 Governing Law | 63 | |||
Section 8.05 Submission to Jurisdiction | 64 | |||
Section 8.06 Waiver of Jury Trial | 64 | |||
Section 8.07 Notices | 65 | |||
Section 8.08 Entire Agreement | 66 | |||
Section 8.09 No Third Party Beneficiaries | 66 | |||
Section 8.10 Severability | 66 | |||
Section 8.11 Assignment | 67 | |||
Section 8.12 Remedies | 67 | |||
Section 8.13 Specific Performance | 67 | |||
Section 8.14 Counterparts; Effectiveness | 68 |
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Exhibit A | - | Guarantee |
Exhibit B | - | Merger Consent |
Exhibit C | - | Initial Press Release |
Schedule 5.01 | Conduct of Business of the Company | |
Schedule 5.10 | Indemnification Documents | |
Schedule 6.02(e) | Terminated Related Party Transactions | |
Schedule 8.01 | Knowledge |
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CONDITIONS
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TERMINATION, AMENDMENT AND WAIVER
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MISCELLANEOUS
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If to Parent or Merger Sub, to: | c/o Warburg Pincus LLC 450 Lexington Avenue New York, New York 10017 Attention: Jonathan Leff Facsimile: (212) 878-9361 | ||
with a copy (which will not constitute notice to Parent or Merger Sub) to: | Kirkland & Ellis LLP 601 Lexington Avenue New York, New York 10022 Facsimile: (212) 446-6460 Attention: Eunu Chun; Christopher Torrente | ||
If to the Company, to: | ReSearch Pharmaceutical Services, Inc. 520 Virginia Drive Fort Washington, Pennsylvania 19034 Attention: Daniel Perlman Facsimile: (484) 540-0770 | ||
with a copy (which will not constitute notice to the Company) to: | Drinker Biddle & Reath LLP One Logan Square, Suite 2000 Philadelphia, PA 19103-6996 Facsimile: (215) 988-2757 Attention: Stephen T. Burdumy, Esq. |
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RESEARCH PHARMACEUTICAL SERVICES, INC. | ||||
By: | /s/ Daniel M. Perlman | |||
Name: | Daniel M. Perlman | |||
Title: | Chief Executive Officer and Chairman of the Board of Directors | |||
ROY RPS HOLDINGS CORP. | ||||
By: | /s/ Jonathan Leff | |||
Name: | Jonathan Leff | |||
Title: | President | |||
RPS MERGER SUB, INC. | ||||
By: | /s/ Jonathan Leff | |||
Name: | Jonathan Leff | |||
Title: | President |
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Jefferies & Company, Inc. | ||
520 Madison Avenue, 10th Floor | ||
New York, New York 10022 | ||
tel (212) 284-2300 | ||
fax (212) 284-2111 | ||
www.jefferies.com |
ReSearch Pharmaceutical Services, Inc.
520 Virginia Drive
Fort Washington, Pennsylvania 19034
(i) | reviewed a draft dated December 23, 2010 of the Merger Agreement; | ||
(ii) | reviewed certain publicly available financial and other information about the Company; | ||
(iii) | reviewed certain information furnished to us by the Company’s management, including financial forecasts and analyses, relating to the business, operations and prospects of the Company; | ||
(iv) | held discussions with members of senior management of the Company concerning the matters described in clauses (ii) and (iii) above, including the risks and uncertainties of achieving the financial forecasts described in clause (iii) above; |
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(v) | compared the financial and operating performance of the Company with publicly available information concerning certain other publicly traded companies we deemed relevant and reviewed the current and historical market prices and valuation multiples of the equity securities of such other companies; | ||
(vi) | compared the proposed financial terms of the Merger with the financial terms of certain other transactions that we deemed relevant; and | ||
(vii) | conducted such other financial studies, analyses and investigations as we deemed appropriate. |
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