STOCKHOLDER SUPPORT
AGREEMENT
STOCKHOLDER SUPPORT AGREEMENT, dated as of
May 4, 2009 (this “Agreement”), by and among
Bio-Imaging Technologies, Inc., a Delaware corporation
(“Parent”), and [ _____ ] (the
“Stockholder”). This Agreement shall be effective as of
May 4, 2009. Capitalized terms used but not defined herein
shall have the meanings given to such terms in the Merger
Agreement.
WHEREAS , Parent, BioClinica Acquisition, Inc., a
Delaware corporation and a wholly-owned Subsidiary of Parent
(“Purchaser”), and etrials Worldwide, Inc., a Delaware
corporation (the “Company”), are, concurrently with the
execution and delivery of this Agreement, entering into an
Agreement and Plan of Merger, dated as of the date hereof (the
“Merger Agreement”); and
WHEREAS, as of the date hereof, each Stockholder is the
beneficial owner (as defined under Rule 13d-3 of the Exchange
Act) of the outstanding shares of the Company’s Common Stock,
par value $0.0001 per share (the “Common Stock”), set
forth under such Stockholder’s name on the signature page to
this Agreement (the “Existing Shares” and, together
with any other shares of Common Stock, or other capital stock of
the Company acquired by the Stockholder after the date hereof,
collectively, the “Shares”); and
WHEREAS , as a condition to its willingness to enter
into the Merger Agreement, Parent has requested that the
Stockholder enter into this Agreement.
NOW, THEREFORE, in consideration of the foregoing and the mutual
representations, warranties, covenants and agreements contained
herein, and intending to be legally bound hereby, the parties
hereto hereby agree as follows:
1.1. Agreement to Tender . Unless
this Agreement shall have previously been terminated in accordance
with its terms, each Stockholder agrees to accept the Offer with
respect to all the Shares (excluding for purposes of this
Section 1.1 Shares that are subject to unexercised Stock
Options until such time as such Stock Options are exercised) and to
tender all the Shares pursuant to the Offer. Such tender shall be
made within ten Business Days of the commencement of the Offer, and
with respect to any Shares obtained after such date (by way of
exercise of Stock Options or otherwise, promptly after such Shares
are obtained). The Stockholder shall not withdraw any Shares
tendered pursuant to the Offer unless either (i) this
Agreement terminates pursuant to Section 4.1 or (ii) the
Offer shall have been terminated pursuant to the terms of the
Merger Agreement. Parent or Purchaser shall pay the Stockholder for
any Shares tendered in accordance with the Merger Agreement and not
withdrawn on the date of acceptance of shares for payment pursuant
to the Offer. If the Offer is terminated by Parent or Purchaser or
the Company, or this Agreement is terminated in accordance with its
terms, Parent and Purchaser shall cause the depository acting on
behalf of Parent and Purchaser
to return all
tendered Shares to the Stockholder promptly. The Stockholder agrees
to permit Parent and Purchaser to publish and disclose in the Offer
Documents and, if approval of the Company’s or Parent’s
stockholders is required under the Delaware General Corporate Law
(“DGCL”), any proxy statement (including all related
documents and schedules filed with the SEC), his or its identity
and ownership of Shares, the nature of his or its commitments,
arrangements and understandings under this Agreement and any other
information required by applicable Law.
1.2. Agreement to Vote . From and
after the date hereof and until this Agreement terminates pursuant
to Section 4.1, at every meeting of the stockholders of the
Company, however called, and at every adjournment or postponement
thereof, or in connection with any written consent of the
stockholders of the Company, relating to any proposed action by the
stockholders of the Company with respect to the matters set forth
in Section 1.2(b) below, the Stockholder irrevocably agrees
to, with respect to any Shares not purchased in the
Offer:
(a) appear at each such meeting or
otherwise cause the Shares owned beneficially or of record by the
Stockholder to be counted as present thereat for purposes of
calculating a quorum; and
(b) vote (or cause to be voted), in person
or by proxy, all the Shares owned beneficially or of record by the
Stockholder, and any other voting securities of the Company
(whenever acquired), that are owned beneficially or of record by
the Stockholder or as to which it has, directly or indirectly, the
right to vote or direct the voting, (i) in favor of approval
of the Merger Agreement and each of the other transactions
contemplated thereby, (ii) against any action or agreement
submitted for approval of the stockholders of the Company that
Parent has provided the Stockholder with advance notice is or would
reasonably be expected to result in any of the conditions to the
Company’s obligations under the Merger Agreement not being
fulfilled or would result in a breach of any covenant,
representation or warranty or any other obligation or agreement of
the Company contained in the Merger Agreement or of the Stockholder
contained in this Agreement, (iii) against any action,
agreement or transaction submitted for approval to the stockholders
of the Company that would reasonably be expected to materially
impede, interfere or be inconsistent with, delay, postpone,
discourage or materially and adversely affect the timely
consummation of the Offer or the Merger, and (iv) against any
other action, agreement or transaction submitted for approval to
the stockholders of the Company that would constitute a Superior
Proposal.
REPRESENTATIONS AND
WARRANTIES
2.1. Representations and Warranties of the
Stockholder . The Stockholder hereby represents and
warrants to Parent as follows:
(a) Authorization; Validity of
Agreement; Necessary Action . Such Stockholder has all
requisite power and authority to execute and deliver this Agreement
and to consummate the transactions contemplated hereby. To the
extent applicable, the execution and delivery of this Agreement and
the consummation by the Stockholder of the transactions
contemplated
hereby have been duly authorized by all necessary action (corporate
or otherwise) on the part of such Stockholder. This Agreement has
been duly executed and delivered by such Stockholder and
constitutes a valid and binding obligation of such Stockholder,
enforceable in accordance with its terms (except as enforceability
may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or other laws affecting creditors’
rights generally and to general equity principles). If such
Stockholder is married and the Shares set forth on the signature
page hereto constitute community property under applicable laws,
this Agreement has been duly authorized, executed and delivered by,
and constitutes the valid and binding agreement of, such
Stockholder’s spouse.
(b) Ownership . As of the date
hereof, the number of shares of Common Stock beneficially owned (as
defined under Rule 13d-3 of the Exchange Act) by such
Stockholder is set forth under such Stockholder’s name on the
signature page to this Agreement. The Existing Shares are, and
(except as otherwise expressly permitted by this Agreement) any
additional shares of Common Stock and any options and warrants to
purchase shares of Common Stock, or any other securities of the
Company convertible, exercisable or exchangeable into shares of
Common Stock that are acquired by the Stockholder after the date
hereof and prior to the Effective Time will be, owned beneficially
by the Stockholder. As of the date hereof, the Existing Shares
constitute all of the securities of the Company (other than options
to purchase shares of Common Stock outstanding as of the date
hereof and set forth under such Stockholder’s name on the
signature page to this Agreement) held of record, beneficially
owned by or for which voting power or disposition power is held or
shared by the Stockholder. Such Stockholder has and (except as
otherwise expressly permitted by this Agreement) will have at all
times through the Effective Time sole voting power, sole power of
disposition, sole power to issue instructions with respect to the
matters set forth in Article I or Section 3.1 hereof, and
sole right, power and authority to agree to all of the matters set
forth in this Agreement, in each case with respect to all of the
Existing Shares and with respect to all of the Shares at all times
through the Effective Time, with no limitations, qualifications or
restrictions on such rights, subject to applicable federal
securities laws and the terms of this Agreement. Such Stockholder
has good, valid and marketable title to the Existing Shares, free
and clear of any Liens and such Stockholder will have good, valid
and marketable title to all Shares at all times through the
Effective Time, free and clear of any Liens. Such Stockholder
further represents that any proxies heretofore given in respect of
the Shares owned beneficially and of record by such Stockholder, if
any, are revocable, and hereby revokes such proxies.
(c) No Violation . The execution
and delivery of this Agreement by such Stockholder does not, and
the performance by such Stockholder of its obligations under this
Agreement will not, (i) assuming the filing of such reports as
may be required under Sections 13(d) and 16 of the Exchange Act,
which such Stockholder will file, conflict with or violate any Law
applicable to such Stockholder or by which any of his or its assets
or properties is bound or (ii) conflict with, result in any
breach of or constitute a default (or an event that with notice or
lapse of time or both would become a default) under, or give to
others any rights of termination, amendment, acceleration or
cancellation of, or require payment under, or result in the
creation of any Lien on the properties or assets of such
Stockholder pursuant to, any note, bond, mortgage, indenture,
contract, agreement, lease, license, permit, franchise or other
instrument or obligation to which such Stockholder is a party or by
which such Stockholder or any of his or its assets or properties is
bound, except for any of the foregoing as could not reasonably be
expected, either
individually or
in the aggregate, to materially impair the ability of such
Stockholder to perform his or its obligations hereunder or to
consummate the transactions contemplated hereby on a timely basis.
The execution and delivery of this Agreement by such Stockholder
does not, and the performance of this Agreement by such Stockholder
will not, require any consent, approval, authorization or permit
of, or filing with or notification to any (i) Governmental
Entity, except for filings that may be required under the Exchange
Act or (ii) third party (including with respect to
individuals, any spouse, and with respect to trusts, any co-trustee
or beneficiary).
(d) Information . None of the
information relating to such Stockholder provided by or on behalf
of such Stockholder in writing for inclusion in the Offer
Documents, the Schedule 14D-9 or any proxy statement will, at
the respective times such documents are filed with the SEC or are
first published, sent or given to stockholders of the Company,
contain any untrue statement of material fact or omit to state any
material fact required to be stated therein or necessary in order
to make the statements therein, in light of the circumstances under
which they were made, not misleading.
(e) Reliance . Such Stockholder
understands and acknowledges that Parent is entering into the
Merger Agreement in reliance upon such Stockholder’s
execution and delivery of this Agreement.
(f) Absence of Litigation . As of
the date hereof, there is no suit, action, investigation or
proceeding pending or, to the knowledge of such Stockholder,
threatened against such Stockholder before or by any Governmental
Entity that would impair the ability of such Stockholder to perform
its obligations hereunder or to consummate the transactions
contemplated hereby on a timely basis.
(g) Stockholder has Adequate
Information . Such Stockholder is a sophisticated seller with
respect
|
