Full Press Release Details
American Depositary Shares
(par value 0.06 per share)
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Form of Underwriting Agreement
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William Blair & Company, L.L.C.,
Bear Stearns & Co. Inc.,
Jefferies & Company, Inc.,
c/o William Blair & Company, L.L.C.
222 West Adams Street,
Chicago, Illinois 60606.
Ladies and Gentlemen:
The selling shareholders listed on Schedule II hereto ( Selling Shareholders ) of ICON plc, a public company limited by shares incorporated under the laws of the Republic of
Ireland (the "Company"), propose, subject to the terms and conditions stated herein, to sell to the underwriters listed on Schedule I hereto (the "Underwriters") an aggregate of 1,000,000 American Depositary Shares ("ADSs") representing 1,000,000
Ordinary Shares, par value 0.06 per Ordinary Share ("Stock"), of the Company. The shares of Stock represented by the ADSs are hereinafter called the "Shares".
The ADSs are issued pursuant to a deposit agreement (the "Deposit Agreement"), dated as of May 20, 1998, among the Company, The Bank of New York, as depositary (the "Depositary"), and
holders from time to time of the American Depositary Receipts (the "ADRs") issued by the Depositary and evidencing the ADSs. Each ADS represents the right to receive one share of Stock deposited pursuant to the Deposit Agreement.
1. (a) The Company represents and warrants to, and agrees with, each of the
(i) A registration statement on Form F-3 (File No. 333-133371) (the "Initial Registration Statement") in respect of the Shares and the ADSs has been filed with the Securities and Exchange
Commission (the "Commission"); such Initial Registration Statement and any post-effective amendment thereto, each in the form heretofore delivered to the Underwriters, excluding exhibits thereto but including all documents incorporated by reference
in the prospectus contained therein, have been declared effective by the Commission in such form; other than a registration statement, if any, increasing the size of the offering (a "Rule 462(b) Registration Statement"), filed pursuant to Rule
462(b) under the U.S. Securities Act of 1933, as amended (the "Act"), which became effective upon filing, no other document with respect to the Initial Registration Statement or document incorporated by reference therein has heretofore been filed
with the Commission; and no stop order suspending the effectiveness of the Initial Registration Statement, any post-effective amendment thereto or any part thereof or the Rule 462(b) Registration Statement, if any, has been issued and no proceeding
for that purpose has been initiated or, to the knowledge of the Company, threatened by the Commission (the base prospectus filed as part of the Initial Registration Statement, in the form in which it has most recently been filed with the Commission
on or prior to the date of this Agreement relating to the Shares, is hereinafter called the Basic Prospectus ; any preliminary prospectus (including any preliminary prospectus supplement) relating to the Shares filed with the Commission
pursuant to Rule 424(b) under the Act is hereinafter called a Preliminary Prospectus ; the various parts of the Initial Registration Statement and the Rule 462(b) Registration Statement, if any, including all exhibits thereto and
including any prospectus supplement relating to the Shares filed with the Commission and deemed by virtue of Rule 430B under the Act to be part of the Initial Registration Statement, each as amended at the time such part of the Initial Registration
Statement became effective or such part of the Rule 462(b) Registration Statement, if any, became or hereafter becomes effective, are hereinafter collectively called the "Registration Statement"; the Basic Prospectus, as amended and supplemented
immediately prior to the Applicable Time (as defined in Section 1(a)(iii) hereof), is hereinafter called the Pricing Prospectus ; the form of the final prospectus relating to the Shares filed with Commission pursuant to Rule 424(b) under
the Act in accordance with Section 5(a) hereof is hereinafter called the Prospectus ; any reference herein to the Basic Prospectus, the Pricing Prospectus, any Preliminary Prospectus or the Prospectus shall be deemed to refer to and
include the documents incorporated by reference therein pursuant to Item 6 of Form F-3 under the Act, as of the date of such prospectus, as the case may be; any reference to any amendment or supplement to the Basic Prospectus, the Pricing
Prospectus, any Preliminary Prospectus or the Prospectus shall be deemed to refer to and include any post-effective amendment to the Registration Statement, any prospectus supplement relating to the Shares filed with the
Commission pursuant to Rule 424(b) under the Act and any documents filed under the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and incorporated therein, in each case after the date of the Basic
Prospectus, such Preliminary Prospectus, the Pricing Prospectus or the Prospectus, as the case may be; any reference to any amendment to the Registration Statement shall be deemed to refer to and include any annual report of the Company filed
pursuant to Section 13(a) or 15(d) of the Exchange Act after the effective date of the Initial Registration Statement that is incorporated by reference in the Registration Statement; and any issuer free writing prospectus as defined in
Rule 433 under the Act relating to the Shares is hereinafter called an Issuer Free Writing Prospectus );
(ii) No order preventing or suspending the use of any Preliminary Prospectus or any Issuer Free Writing Prospectus has been issued by the Commission, and each Preliminary Prospectus, at
the time of filing thereof, conformed in all material respects to the requirements of the Act and the rules and regulations of the Commission thereunder, and did not contain an untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that this representation and warranty shall not apply to any statements or
omissions made in reliance upon and in conformity with information furnished in writing to the Company (x) by an Underwriter through William Blair & Company, L.L.C. expressly for use therein or (y) by a Selling Shareholder expressly for use in
the information provided under the caption "Selling Shareholders" in the Registration Statement, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus;
(iii) For the purposes of this Agreement, the Applicable Time is : __m (Eastern time) on the date of this Agreement; the Pricing Prospectus as supplemented by those
Issuer Free Writing Prospectuses and other documents listed in Schedule III hereto, taken together (collectively, the Pricing Disclosure Package ) as of the Applicable Time, did not include any untrue statement of a material fact or omit
to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; and each Issuer Free Writing Prospectus listed on Schedule III(a) hereto does not conflict
with the information contained in the Registration Statement, the Pricing Prospectus or the Prospectus and each such Issuer Free Writing Prospectus, as supplemented by and taken together with the Pricing Disclosure Package as of the Applicable Time,
did not include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that this
representation and warranty shall not apply to statements or omissions made in an Issuer Free Writing Prospectus in reliance upon and in conformity with information furnished in writing to the Company (x) by an Underwriter through William Blair
& Company, L.L.C. expressly for use therein or (y) by a Selling Shareholder expressly for use in the information provided under the caption "Selling Shareholders" therein;
(iv) The documents incorporated by reference in the Pricing Prospectus and the Prospectus, when they became effective or were filed with the Commission, as the case may be, conformed in
all material respects to the requirements of the Act or the
Exchange Act, as applicable, and the rules and regulations of the Commission thereunder, and none of such documents contained an untrue statement of a material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein not misleading; and any further documents so filed and incorporated by reference in the Prospectus or any further amendment or supplement thereto, when such documents become effective or are
filed with the Commission, as the case may be, will conform in all material respects to the requirements of the Act or the Exchange Act, as applicable, and the rules and regulations of the Commission thereunder and will not contain an untrue
statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading;
(v) The Registration Statement conforms, and the Pricing Prospectus and the Prospectus and any further amendments or supplements to the Registration Statement, the Pricing Prospectus
and/or the Prospectus will conform, in all material respects, to the requirements of the Act and the rules and regulations of the Commission thereunder and do not and will not, as of the applicable effective date as to each part of the Registration
Statement and as of the applicable filing date as to the Prospectus and any amendment or supplement thereto, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the
statements therein not misleading; provided, however, that this representation and
warranty shall not apply to any statements or omissions made in reliance upon and in conformity with information furnished in writing to the Company (x) by an Underwriter through William Blair & Company, L.L.C. expressly for use therein or (y)
by a Selling Shareholder expressly for use in the information provided under the caption Selling Shareholders in the Registration Statement, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus;
(vi) A registration statement on Form F-6 (File No. 333-13442) in respect of the ADSs has been filed with the Commission; such registration statement in the form heretofore delivered to
the Underwriters has been declared effective by the Commission in such form; no other document with respect to such registration statement has heretofore been filed with the Commission; no stop order suspending the effectiveness of such registration
statement has been issued and no proceeding for that purpose has been initiated or, to the knowledge of the Company, threatened by the Commission (the various parts of such registration statement, including all exhibits thereto, each as amended at
the time such part of the registration statement became effective, being hereinafter called the "ADS Registration Statement") and the ADS Registration Statement when it became effective conformed, and any further amendments thereto will conform, in
all material respects, to the requirements of the Act and the rules and regulations of the Commission thereunder, and did not, as of the applicable effective date, contain an untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein not misleading;
(vii) Any Preliminary Prospectus at the date thereof did not, and the Prospectus at the date thereof, does or did not, and any further amendment or supplement thereto, as of the date of
any such amendment or supplement, will not, contain an untrue
statement of a material fact or omit to state a material fact necessary in order to make the statements therein not misleading; provided, however, that this representation and warranty shall not apply to any statements
or omissions made in reliance upon and in conformity with information furnished in writing to the Company (x) by an Underwriter through William Blair & Company, L.L.C. expressly for use therein or (y) by a Selling Shareholder expressly for use
in the information provided under the caption Selling Shareholders in the Preliminary Prospectus or the Prospectus;
(viii) Neither the Company nor any of its subsidiaries has sustained since the date of the latest audited financial statements included or incorporated by reference in the Pricing
Prospectus any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise (in each case) than as
set forth or contemplated in the Pricing Prospectus or that would not result in any material adverse effect on the business, financial condition, shareholders equity or results of operations of the Company and its subsidiaries, taken as a
whole; and, since the respective dates as of which information is given in the Registration Statement and the Pricing Prospectus, there has not been any change in the share capital or long-term debt of the Company or any of its subsidiaries or any
material adverse change, or any development involving a prospective material adverse change in or affecting the general affairs, management, financial position, shareholders' equity or results of operations of the Company and its subsidiaries, taken
as a whole, otherwise than as set forth or contemplated in the Pricing Prospectus;
(ix) The Company and its subsidiaries have good and valid title to all real property and good and valid title to all personal property owned by them, in each case free of restrictions on
transfer and free and clear of all liens, encumbrances and defects except such as are described in the Pricing Prospectus or such as do not materially affect the value of such property and do not interfere with the use made and proposed to be made
of such property by the Company and its subsidiaries; and any real property and buildings held under lease by the Company and its subsidiaries are held by them under valid, subsisting and enforceable leases with such exceptions as are not material
and do not interfere with the use made and proposed to be made of such property and buildings by the Company and its subsidiaries;
(x) The Company has been duly incorporated and is validly existing as a public company limited by shares under the laws of the Republic of Ireland, with power and authority (corporate and
other) to own its properties and conduct its business as described in the Pricing Prospectus, and has been duly qualified as a foreign corporation for the transaction of business and is in good standing under the laws of each other jurisdiction in
which it owns or leases properties or conducts any business so as to require such qualification, or is subject to no material liability or disability by reason of the failure to be so qualified in any such jurisdiction; and each subsidiary of the
Company has been duly incorporated and is validly existing as a public limited company or similar entity in good standing under the laws of its jurisdiction of incorporation where the concept of good standing applies and has corporate power and
authority to own or lease its properties and to conduct its business as described in the Prospectus, except to the extent that failure to be so qualified would not have a material adverse effect on
the business, financial condition, shareholders equity or results of operations of the Company and its subsidiaries, taken as a whole;
(xi) The Company has an authorized share capital as set forth in the Pricing Prospectus, and all of the issued shares of Stock of the Company have been duly and validly authorized and
issued, are fully paid and non-assessable and conform to the description of the Stock contained in the Pricing Prospectus and the Prospectus; and all of the issued share capital of each subsidiary of the Company has been duly and validly authorized
and issued, is fully paid and non-assessable and (except for directors' qualifying shares and except as otherwise set forth in the Pricing Prospectus) is owned directly or indirectly by the Company, free and clear of all liens, encumbrances,
equities or claims; the holders of the issued share capital of the Company are not entitled to preemptive or other rights to acquire shares of Stock or ADSs; there are no outstanding securities convertible into or exchangeable for, or warrants,
rights or options to purchase from the Company, or obligations of the Company to issue, shares of Stock or any other class of share capital of the Company (except as set forth in the Company s transition report on Form 20-F for the seven-month
period ended December 31, 2005, and incorporated by reference into the Pricing Prospectus, under the caption Directors, Senior Management and Employees Employee Share Option Schemes and except for options granted subsequent to
December 31, 2005 pursuant to the share option plans described therein); the Company s outstanding employee stock option plans (including the Share Option Plan 2003) conform in all material respects to the description contained in the
Company s transition report on Form 20-F for the seven-month period ended December 31, 2005, and incorporated by reference into the Pricing Prospectus, under the caption Directors, Senior Management and Employees Employee Share
Option Schemes ; the ADSs are freely transferable by the Selling Shareholders to or for the account of the several Underwriters and (to the extent described in the Prospectus) the initial purchasers thereof; and there are no restrictions on
subsequent transfers of the Shares and ADSs under the laws of the Republic of Ireland and of the United States except as described in the Company s report on Form 6-K/A filed on March 7, 2003, and incorporated by reference into the Pricing
Prospectus, under the captions "Description of Share Capital" and "Description of American Depositary Shares";
(xii) The Shares have been duly and validly authorized and issued, are fully paid and non-assessable and will conform to the description of the shares of Stock incorporated by reference in
the Pricing Prospectus and the Prospectus; and no option or other agreements which require or may require or confer any right to require the issue of shares of Stock or other securities of the Company or any of its subsidiaries now or at any time