As filed with the Securities and Exchange Commission on July 23, 2003
Registration No. 333-_________
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT UNDER THE
SECURITIES ACT OF 1933
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ERESEARCHTECHNOLOGY, INC.
(Exact Name of Registrant as Specified in its Charter)
Delaware 22-3264604
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(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
30 S. 17th Street
Philadelphia, Pennsylvania 19103
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(Address of Principal Executive Offices) (Zip Code)
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ERESEARCHTECHNOLOGY, INC.
2003 STOCK OPTION PLAN
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(Full title of plan)
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Anna Marie Pagliaccetti
Vice President, General Counsel and Secretary
eResearchTechnology, Inc.
30 S. 17th Street
Philadelphia, Pennsylvania 19103
(215) 972-0420
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(Name, address and telephone number of agent for service)
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Copy to:
Thomas G. Spencer, Esquire
Duane Morris LLP
One Liberty Place
Philadelphia, Pennsylvania 19103-7396
CALCULATION OF REGISTRATION FEE
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Proposed Proposed
Title of securities Amount to be maximum offering maximum aggregate Amount of
to be registered Registered(1) price per share(2) offering price(2) registration fee
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Common Stock,
par value $.01 1,700,000 shares $14.14-$24.36 $32,454,090 $2,625.54
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(1) This registration statement includes 850,000 shares issuable under the
2003 Stock Option Plan as a result of a two-for-one stock split in the
form of a 100% stock dividend paid on May 29, 2003 and also registers
such additional shares as may be required to be issued under the
eResearchTechnology, Inc. 2003 Stock Option Plan in the event of any
future stock dividend, reverse stock split, split-up, reclassification
and/or other similar event.
(2) Pursuant to paragraph (h) of Rule 457, the proposed maximum offering
price per share and the proposed maximum aggregate offering price have
been computed as follows: (a) with respect to the 641,000 shares for
which options have been granted as of the date hereof, computed upon
the basis of the exercise prices ranging from $14.14 to $24.36 per
share for such options and (b) with respect to the 1,059,000 shares for
which options have not yet been granted, computed on the basis of
$22.01 per share, the average of the high and low sales prices of the
Common Stock of the Company on the Nasdaq National Market System on
July 17, 2003, which is a day on which the Common Stock traded that is
within five business days prior to the date of filing.
PART II
INFORMATION REQUIRED IN REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following material is incorporated herein by reference:
(a) The Annual Report on Form 10-K of eResearchTechnology, Inc.
(the "Company") for the fiscal year ended December 31, 2002 as filed with the
Securities and Exchange Commission (the "Commission") on March 14, 2003.
(b) The Company's Current Report on Form 8-K as filed with the
Commission on April 23, 2003.
(c) The Company's Quarterly Report on Form 10-Q for the quarter
ended March 31, 2003 as filed with the Commission on May 9, 2003.
(d) The description of the Company's Common Stock set forth in the
Company's Registration Statement on Form S-1 filed with the Commission, File No.
333-17001, declared effective by the Commission on February 3, 1997.
All reports or other documents filed pursuant to Sections 13(a), 13(c),
14 and 15(d) of the Securities Exchange Act of 1934 subsequent to the date of
this Registration Statement, in each case filed by the Company prior to the
filing of a post-effective amendment that indicates that all securities offered
have been sold or that deregisters all securities then remaining unsold, shall
be deemed to be incorporated by reference in this Registration Statement and to
be a part hereof from the date of filing of such reports and documents. Any
statement contained in a document incorporated or deemed to be incorporated
herein by reference shall be deemed to be modified or superseded for the
purposes of this Registration Statement to the extent that a statement contained
herein or in any other subsequently filed document, which also is or is deemed
to be incorporated herein by reference, modifies or supersedes such statement.
Any statement so modified or superseded shall not be deemed, except as so
modified or superseded, to constitute a part of this Registration Statement.
Item 5. Interests of Named Experts and Counsel.
The validity of the issuance of the shares of Common Stock registered
hereby will be passed upon for the Company by Duane Morris LLP, Philadelphia,
Pennsylvania. As of July 18, 2003, attorneys of Duane Morris LLP who have
recently provided substantive legal services to the Company did not own any
shares of the Company's outstanding Common Stock. Sheldon M. Bonovitz, a partner
of Duane Morris LLP, is a director of the Company and as of July 18, 2003,
beneficially owned 85,614 shares, of which 80,000 represent shares issuable upon
exercise of options.
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Item 6. Indemnification of Directors and Officers.
Under Section 145 of the Delaware General Corporation Law, the Company
must indemnify each of its directors and officers against such person's expenses
(that is, reasonable costs, disbursements and counsel fees) in connection with
any proceeding involving such person by reason of such person having been an
officer, director, employee or agent of the Company, or who is or was serving at
the request of the Company as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise, to the
extent such person is successful on the merits. Moreover, under such statutory
provision the Company has the corporate power to indemnify its officers and
directors against expenses and (in the case of proceedings other than those by
or in the right of the Company) liabilities incurred in such a proceeding,
provided (i) the officer or director has acted in good faith and in a manner
reasonably believed to be in, or not opposed to, the best interests of the
Company and (ii) with respect to any criminal proceeding, such person had no
reasonable cause to believe his conduct was unlawful. In the case of a
proceeding by or in the right of the Company, however, such indemnification is
not permitted if the individual is adjudged to be liable to the Company, unless
a court determines that such person is fairly and reasonably entitled to
indemnity for such expenses as the court deems proper.
The determination of whether indemnification is proper under the
circumstances, unless made by a court, is determined by a majority of the
disinterested members of the Board of Directors or committee thereof, by
independent legal counsel if a quorum of the disinterested members of the Board
of Directors or committee thereof is not available or if the disinterested
members of the Board of Directors or a committee thereof so direct, or by the
stockholders.
The Company's Bylaws require the Company to indemnify each director and
officer if Section 145 of the Delaware General Corporation Law permits the
Company to do so.
The Company has obtained a directors' and officers' liability insurance
policy, which affords officers and directors insurance coverage for losses
arising from claims based on breaches of duty, negligence, error and other
wrongful acts.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers or persons controlling the
Company pursuant to the foregoing provisions, the Company has been informed
that, in the opinion of the Securities and Exchange Commission, such
indemnification is against public policy as expressed in the Securities Act of
1933 and is therefore unenforceable.
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Item 8. Exhibits.
4 eResearchTechnology, Inc. 2003 Stock Option Plan.
5 Opinion of Duane Morris LLP.
23.1 Consent of Duane Morris LLP (included in its opinion filed as
Exhibit 5).
23.2 Consent of KPMG LLP.
24 Power of Attorney (included on the signature pages hereto).
Item 9. Undertakings.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by
section 10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the registration statement (or the most
recent post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth in the
registration statement;
(iii) To include any material information with respect
to the plan of distribution not previously disclosed in the registration
statement or any material change to such information in the registration
statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the registrant pursuant to
section 13 or section 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under
the Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered therein,
and the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned registrant hereby undertakes that, for purposes
of determining any liability under the Securities Act of 1933, each filing of
the registrant's annual report pursuant to section 13(a) or section 15(d) of the
Securities Exchange Act of 1934 that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
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(h) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the registrant pursuant to the foregoing provisions, or otherwise,
the registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Securities Act of 1933 and is, therefore, unenforceable. In the event
that a claim for indemnification against such liabilities (other than the
payment by the registrant of expenses incurred or paid by a director, officer or
controlling person of the registrant in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or controlling person
in connection with the securities being registered, the registrant will, unless
in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question of whether
such indemnification by it is against public policy as expressed in the
Securities Act of 1933 and will be governed by the final adjudication of such
issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in Philadelphia, Pennsylvania on July 23, 2003.
eResearchTechnology, Inc.
By: /s/ Joseph A. Esposito
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Joseph A. Esposito
President and Chief Executive Officer
Know all men by these presents, that each person whose signature
appears below constitutes and appoints Joel Morganroth, M.D., Joseph Esposito
and Bruce Johnson, and each of them, as such person's true and lawful
attorneys-in-fact and agents, with full power of substitution, for such person,
and in such person's name, place and stead, in any and all capacities to sign
any or all amendments or post-effective amendments to this Registration
Statement, and to file same, with all exhibits thereto and other documents in
connection therewith, with the Securities and Exchange Commission, granting unto
said attorneys-in-fact and agents full power and authority to do and perform
each and every act and thing requisite and necessary to be done in and about the
premises, as fully to all intents and purposes as such person might or could do
in person, hereby ratifying and confirming all that said attorneys-in-fact and
agents, or any of them or their substitutes, may lawfully do or cause to be done
by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed below by the following persons in
the capacities and on the dates indicated.
Signature Title Date
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/s/ Joseph A. Esposito President, Chief Executive July 23, 2003
--------------------------- Officer and Director (Principal
Joseph A. Esposito executive officer)
/s/ Joel Morganroth Chairman of the Board and Chief July 23, 2003
--------------------------- Scientist
Joel Morganroth, M.D.
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Signature Title Date
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/s/ Bruce Johnson Sr. Vice President and Chief July 23, 2003
------------------ Financial Officer (Principal
Bruce Johnson financial and accounting officer)
/s/ Sheldon M. Bonovitz Director July 23, 2003
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Sheldon M. Bonovitz
/s/ David D. Gathman Director July 23, 2003
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David D. Gathman
/s/ Arthur H. Hayes, Jr. Director July 23, 2003
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Arthur H. Hayes, Jr., M.D.
/s/ Stephen S. Phillips Director July 23, 2003
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Stephen S. Phillips
/s/ John M. Ryan Director July 23, 2003
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John M. Ryan
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EXHIBIT INDEX
(PURSUANT TO ITEM 601 OF REGULATION S-K)
Exhibit No. Exhibit Reference
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4 eResearchTechnology, Inc. 2003 Stock Filed herewith
Option Plan
5 Opinion of Duane Morris LLP Filed herewith
23.1 Consent of Duane Morris LLP (included Filed herewith
in its opinion filed as Exhibit 5)
23.2 Consent of KPMG LLP Filed herewith
24 Power of Attorney (see page 5 of this Filed herewith
Registration Statement)