REGISTRATION RIGHTS AGREEMENT
Exhibit 4.2
EXECUTION VERSION
EXECUTION VERSION
THIS REGISTRATION RIGHTS AGREEMENT is made as of June 23, 2005, by and among EMERGENT
BIOSOLUTIONS INC., a Delaware corporation (together with any successor thereto, the
“Company”), and MICROSCIENCE HOLDINGS PLC, a public limited company organized under the
laws of the United Kingdom (“PLC”). Each of the Company and PLC are referred to herein as
a “Party” and collectively, as the “Parties”.
WHEREAS, the Company’s wholly-owned indirect subsidiary and PLC are simultaneously entering
into a Share Exchange Agreement (the “Share Exchange Agreement”) pursuant to which PLC is
exchanging all of the issued and outstanding capital stock of its wholly-owned subsidiary
Microscience Limited for 1,264,051 shares of the Company’s Class A Common Stock;
WHEREAS, the Company and PLC desire to provide for certain arrangements with respect to the
registration of shares of capital stock of the Company under the Securities Act (as defined
herein); and
WHEREAS, the execution and delivery of this Agreement is a condition precedent to the
transaction contemplated by the Share Exchange Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and agreements set forth in this
Agreement, and for other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the Parties hereto agree as follows:
1. Certain Definitions. Capitalized terms used in this Agreement and not
otherwise defined shall have the following respective meanings:
“Agreement” shall mean this Registration Rights Agreement, as amended, restated,
supplemented or otherwise modified from time to time.
“Commission” shall mean the United States Securities and Exchange Commission or any other
federal agency at the time administering the Securities Act and the Exchange Act.
“Common Stock” shall mean the Company’s Class A Common Stock, $0.01 par value per share.
“Exchange Act” shall mean the Securities Exchange Act of 1934, as amended, or any similar
successor federal statute, and the rules and regulations of the Commission thereunder, all as the
same shall be in effect at the time.
“Holder” shall mean PLC or another holder of Registrable Securities who was assigned
registration rights hereunder in accordance with Section 7 hereof.
“Initial Public Offering” means the first underwritten public offering of Common Stock for
the account of the Company and offered on a “firm commitment” basis pursuant to an offering
registered under the Securities Act with the Commission on Form S-1 or its then equivalent.
“Person” shall mean any individual, sole proprietorship, partnership, joint venture, trust,
unincorporated organization, association, corporation, limited liability company, institution,
public benefit corporation, other entity or government (whether federal, state, county, city,
municipal, local, foreign, or otherwise, including any instrumentality, division, agency, body or
department thereof).
“Registrable Securities” shall mean (a) the shares of Common Stock issued to PLC pursuant
to the Share Exchange Agreement and (b) any additional shares of Common Stock issued or distributed
by way of a dividend, stock split or other distribution in respect of any share of Class A Common
Stock issued to PLC under the Share Exchange Agreement; provided, however, that
notwithstanding anything to the contrary contained herein, “Registrable Securities” shall not at
any time include any securities (i) registered and sold pursuant to the Securities
Act, (ii) sold pursuant to Rule 144 or (iii) which could then be sold in their entirety pursuant to
Rule 144 without limitation or restriction.
“Registration Date” means the date upon which the registration statement pursuant to which
the Company shall have initially registered shares of Common Stock under the Securities Act for
sale to the public shall have been declared effective.
“Rule 144” means Rule 144 promulgated under the Securities Act or any successor regulation.
“Securities Act” shall mean the Securities Act of 1933, as amended, or any similar
successor federal statute, and the rules and regulations of the Commission thereunder, all as the
same shall be in effect at the time.
2. Registrations.
(a) Demand Registration.
(i) At any time after the expiration of ninety (90) days after the Registration Date,
if the Company shall be requested in writing by Holders of Registrable Securities to file a
registration statement for Registrable Securities having an aggregate offering price to the
public of not less than $25,000,000 under the Securities Act (a “Demand Notice”) in
accordance with this Section 2(a), then the Company shall use commercially
reasonable efforts to effect, as soon as practicable, such a registration statement. Upon
receipt of a Demand Notice, the Company shall give written notice of such proposed
registration to all Holders and shall offer to include in such proposed registration any
Registrable Securities requested to be included in such proposed registration by such
Holders who respond in writing to the Company’s notice within 30 days after delivery of such
notice (which response shall specify the number of Registrable Securities proposed to be
included in such registration). The Company shall use commercially reasonable efforts to
effect, as soon as practicable, such registration on an appropriate form, including Form S-2
or S-3, if available, under the Securities Act of the Registrable Securities which the
Company has been so requested to register; provided, however, that the
Company shall not be obligated to effect any registration under the Securities Act except in
accordance with the following provisions:
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(A) The Company shall not be obligated to file more than one registration
statement initiated by the Holders of Registrable Securities pursuant to this
Section 2(a); provided, however, that the Company shall be obligated
to file a second registration statement if at the time of the filing of the first
registration statement referred to above any Registrable Securities remain subject
to the Pledge Agreement (as defined in the Share Exchange Agreement);
(B) The Company shall not be obligated to file a registration statement during
the period following the Registration Date when the Holders are
subject to any restrictions on disposition of Registrable Securities pursuant
to any agreement described in Section 6(a); and
(C) The Company shall not be obligated to file any registration statement
during any period in which any other registration statement (other than on Form S-4
or Form S-8 promulgated under the Securities Act or any successor forms thereto)
pursuant to which securities of the Company are to be or were sold has been filed
and not withdrawn or has been declared effective within the prior 90 days.
(ii) If the Holders requesting to be included in a registration pursuant to this
Section 2(a) so elect, the offering of such Registrable Securities pursuant to such
registration shall be in the form of an underwritten offering. The Holders of a majority of
the Registrable Securities requested to be included in such registration shall select one or
more nationally recognized firms of investment bankers reasonably acceptable to the Company
to act as the lead managing underwriter or underwriters in connection with such offering and
shall select any additional investment bankers and managers to be used in connection with
the offering, which shall also be reasonably acceptable to the Company.
(iii) With respect to any registration pursuant to this Section 2(a), the
Company may include in such registration any Common Stock; provided,
however, that if a managing underwriter, if any, advises the Company that the
inclusion of all Registrable Securities and Common Stock requested to be included by the
Company in such registration would interfere with the successful marketing (including
pricing) of all such securities, then the number of Registrable Securities and Common Stock
proposed to be included in such registration shall be included in the following order:
(A) first, the Registrable Securities shall be included, pro rata based
upon the number of Registrable Securities to be included at the time of such
registration; and
(B) second, Common Stock requested to be included by the Company.
(iv) At any time before the registration statement covering Registrable Securities
becomes effective, Holders of a majority of the Registrable Securities requested to be
included in such registration may request the Company to withdraw or
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not to file the
registration statement. In that event, if such request of withdrawal shall have been caused
by, or made in response to, a material adverse effect or change in the Company’s financial
condition, operations, business or prospects, such Holders of Registrable Securities shall
not be deemed to have used their demand registration rights under this Section 2(a).
(b) Piggyback Registration. If, at any time or times after (but not including) an
Initial Public Offering, the Company shall seek to register any shares of its Common Stock under
the Securities Act for sale to the public for its own account or on the account of others
(except with respect to registration statements on Form X-0, X-0 or another form not available
for registering the Registrable Securities for sale to the public), the Company will give written
notice thereof to all Holders. If within fifteen (15) business days after their receipt of such
notice one or more Holders request in writing the inclusion of some or all of the Registrable
Securities owned by them in such registration, the Company will use commercially reasonable efforts
to effect the registration under the Securities Act of such Registrable Securities. In the case of
the registration of shares of capital stock by the Company in connection with any underwritten
public offering, if the principal underwriter determines that the number of Registrable Securities
to be offered must be limited, the Company shall not be required to register Registrable Securities
of the Holders in excess of the amount, if any, of shares of the capital stock which the principal
underwriter of such underwritten offering shall reasonably and in good faith agree to include in
such offering in addition to any amount to be registered for the account of the Company.
3. Further Obligations of the Company.
(a) Whenever the Company is required hereunder
to register any Registrable Securities, it
agrees that it shall also do the following:
(i) Prepare and file, and use commercially reasonable efforts to cause to become effective,
with the Commission a registration statement and such amendments and supplements to said
registration statement and the prospectus used in connection therewith as may be necessary to keep
said registration statement effective until the Holder or Holders have completed the distribution
described in the registration statement relating thereto (but for no more than one hundred eighty
(180) days or such lesser period until all such Registrable Securities are sold) and to comply with
the provisions of the Securities Act with respect to the sale of securities covered by said
registration statement for such period;
(ii) Furnish to each selling Holder a draft copy of the registration statement and such copies
of each preliminary and final prospectus as such Holder may reasonably request to facilitate the
public offering of its Registrable Securities;
(iii) Enter into and perform its obligations under any reasonable underwriting agreement
required by the proposed underwriter, if any, in such form and containing such terms as are
customary;
(iv) Use its commercially reasonable efforts to register or qualify the securities covered by
said registration statement under the securities or “blue sky” laws of such
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jurisdictions as any
selling Holder may reasonably request provided the Company shall not be required to qualify to do
business or file a general consent to service of process in connection therewith;
(v) Cause upon or immediately after the effectiveness of a registration all such Registrable
Securities to be listed on each securities exchange or quotation system on which the Common Stock
of the Company is then listed or quoted;
(vi) notify each Holder of Registrable Securities covered by a registration statement, at any
time when a prospectus relating thereto is required to be delivered under the Securities Act, of
(A) the issuance of any stop order by the Commission in respect of such registration statement, or
(B) the happening of any event as a result of which the prospectus included in such registration
statement, as then in effect, includes an untrue statement of a material fact or omits to state a
material fact required to be stated therein or necessary to make the statements therein not
misleading in the light of the circumstances then existing; and
(vii) provide a transfer agent and registrar for all Registrable Securities registered
pursuant hereunder and a CUSIP number for all such Registrable Securities, in each case not later
than the effective date of such registration.
(b) With a view to making available to the Holders the benefits of Rule 144, the Company
agrees to:
(i) make and keep public information available, as those terms are understood and defined in
Rule 144, at all times after the effective date of the Initial Public Offering;
(ii) file with the Commission in a timely manner all reports and other documents required of
the Company under the Securities Act and the Exchange Act, if any; and
(iii) furnish to any Holder, so long as the Holder owns any Registrable Securities, forthwith
upon request (A) a written statement by the Company that it has complied with the information and
reporting requirements of Rule 144(c) and (B) a copy of the most recent annual or quarterly report
of the Company and such other reports and documents so filed by the Company.
(c) From and after the date of this Agreement, the Company shall not, without the prior
written consent of the Holders of a majority of the outstanding Registrable Securities, enter into
any agreement with any holder or prospective holder of any securities of the Company that would
allow such holder or prospective holder to include such securities in any registration statement
filed under Section 2 hereof, unless under the terms of such agreement, such holder or
prospective holder may include such securities in any such registration only to the extent that
the inclusion of such securities will not reduce the amount of the Registrable Securities of the
Holders that are included.
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| 4. | Payment of Expenses by; Cooperation by, and Obligations of, Prospective Sellers. |
(a) Notwithstanding any other provision in this Agreement to the
contrary, the Company and the Holders shall each pay one-half of all expenses
of any registration effected pursuant to Section 2(a) hereof and the
Holders shall pay in full any incremental expenses of including the Holders’
Registrable Securities in a Piggyback Registration pursuant to Section
2(b) hereof, including, without limitation, all
legal and accounting fees, printing costs, listing fees and
miscellaneous expenses, but excluding underwriters’
commissions or discounts attributable to the Registrable
Securities being offered and sold by the Holders, which
shall be borne exclusively by the Holders.
(b) Each prospective seller of Registrable Securities shall
furnish to the Company in writing such information as the Company may
reasonably request from such seller in connection with any registration
statement with respect to such Registrable Securities.
(c) The failure of any prospective seller of Registrable
Securities to furnish any information or documents in accordance with any
provision contained in this Agreement shall not affect the obligations of the
Company under this Agreement to any remaining sellers who furnish such
information and documents unless, in the reasonable opinion of counsel to the
Company and/or the underwriters, such failure impairs or adversely affects the
offering or the legality of the registration statement or causes the request
not to meet the requirements of Section 2 of this Agreement.
(d) Upon receipt of a notice (telephonic or written) from the
Company or the underwriter of the happening of an event which makes any
statement made in a registration statement or related prospectus covering
Registrable Securities untrue or which requires the making of any changes in
such registration statement or prospectus so that they will not contain any
untrue statement of material fact or omit to state any material fact required
to be stated therein or necessary to make the statements therein in light of
the circumstances under which they were made not misleading, the Holders of
Registrable Securities included in such registration statement shall
discontinue disposition of such Registrable Securities pursuant to such
registration statement until such Holders’ receipt of copies of the
supplemented or amended prospectus or until advised by the Company or the
underwriters that dispositions may be resumed.
(e) Each Holder of Registrable Securities included in any
registration statement will effect sales of such securities in accordance with
the plan of distribution given to the Company.
(f) At the end of any period during which the Company is obligated
to keep any registration statement current and effective as provided in this
Agreement, the Holders of Registrable Securities included in such registration
statement shall discontinue sales of shares pursuant to such registration
statement, unless they receive notice from the Company of its intention to
continue effectiveness of such registration statement with respect to such shares which remain unsold and such Holders shall notify the Company of the
number of shares
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registered which remain unsold promptly upon expiration of
the period during which the Company is obligated to maintain the effectiveness
of the registration statement.
(g) No Person may participate in any underwritten registration
pursuant to this Agreement unless such Person (i) agrees to sell such Person’s
securities on the basis provided in any underwriting arrangements made with
respect to such registration and (ii) completes and executes all
questionnaires, powers of attorney, indemnities, underwriting agreements and
other documents reasonably required by the terms of such underwriting
arrangements.
5. Indemnification; Contribution.
(a) Incident to any registration of any Registrable Securities
under the Securities Act pursuant to this Agreement, the Company will
indemnify and hold harmless each Holder who offers or sells any such
Registrable Securities in connection with such registration statement
(including its partners (including partners of partners and stockholders of
any such partners), and directors, officers, employees, representatives and
agents of any of them, and each person who controls any of them within the
meaning of Section 15 of the Securities Act or Section 20 of the Exchange
Act), from and against any and all losses, claims, damages, reasonable
expenses and liabilities, joint or several (including any reasonable
investigation, legal and other expenses incurred in connection with, and any
amount paid in settlement of, any action, suit or proceeding or any claim
asserted, as the same are incurred), to which they, or any of them, may become
subject under the Securities Act, the Exchange Act or other federal or state
statutory law or regulation, at common law or otherwise, insofar as such
losses, claims, damages or liabilities arise out of or are based on (i) any
untrue statement or alleged untrue statement of a material fact contained in
such registration
statement (including any related preliminary or definitive
prospectus, or any amendment or supplement to such
registration statement or prospectus) or (ii) any omission
or alleged omission to state in such document a material
fact required to be stated in it or necessary to make the
statements in it not misleading; provided,
however, that the Company will not be liable to the
extent that (1) such loss, claim, damage, expense or
liability arises from and is based on an untrue statement or
omission or alleged untrue statement or omission made in
reliance on and in conformity with information furnished in
writing to the Company by or on behalf of such Holder in
accordance with Section 4(b) of this Agreement for
use in such registration statement, or (2) in the case of a
sale directly by such Holder (including a sale of
Registrable Securities through any underwriter retained by
such Holder to engage in a distribution solely on behalf of
such Holder), such untrue statement or alleged untrue
statement or omission or alleged omission was contained in a
preliminary prospectus and corrected in a final or amended
prospectus, and such Holder failed to deliver a copy of the
final or amended prospectus at or prior to the confirmation
of the sale of the Registrable Securities to the Person
asserting any such loss, claim, damage or liability in any
case where such delivery is required by the Securities Act
or any state securities laws. With respect to such untrue
statement or omission or alleged untrue statement or
omission in the information furnished in writing to the
Company by or on behalf of such Holder in accordance with
Section 4(a) of this Agreement for use in such
registration statement, such Holder, on a several and not
joint basis, will indemnify and hold harmless the Company
(including its directors, officers, employees,
representatives and agents), each other Holder (including
its partners (including partners of partners and
stockholders of such partners) and directors, officers,
employees, representatives and agents of any of them, and
each person who controls any of them
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within the meaning of
Section 15 of the Securities Act or Section 20 of the
Exchange Act), from and against any and all losses, claims,
damages, reasonable expenses and liabilities, joint or
several (including any reasonable investigation, legal and
other expenses incurred in connection with, and any amount
paid in settlement of, any action, suit or proceeding or any
claim asserted, as the same are incurred), to which they, or
any of them, may become subject under the
Securities Act, the Exchange Act or other federal or state
statutory law or regulation, at common law or otherwise.
(b) If the indemnification provided for in Section 5(a)
above for any reason is held by a court of competent jurisdiction to be
unavailable to an indemnified party in respect of any losses, claims, damages,
expenses or liabilities referred to therein, then each indemnifying party
under this Section 5, in lieu of indemnifying such indemnified party
thereunder, shall contribute to the amount paid or payable by such indemnified
party as a result of such losses, claims, damages, expenses or liabilities (i)
in such proportion as is appropriate to reflect the relative benefits received
by the Company and the other Holders from the offering of the Registrable
Securities or (ii) if the allocation provided by clause (i) above is not
permitted by applicable law, in such proportion as is appropriate to reflect
not only the relative benefits referred to in clause (i) above but also the
relative fault of the Company and the other Holders in connection with the
statements or omissions which resulted in such losses, claims, damages,
expenses or liabilities, as well as any other relevant equitable
considerations. The relative benefits received by the Company and the Holders
shall be deemed to be in the same respective proportions that the net proceeds
from the offering received by the Company and the Holders, in each case as set
forth in the table on the cover page of the applicable prospectus, bear to the
aggregate public offering price of the Registrable Securities. The relative
fault of the Company and the Holders shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of a
material fact or the omission or alleged omission to state a material fact
relates to information supplied by or on behalf of the Company or the Holders
and the Parties’ relative intent, knowledge and access to information.
The Company and the Holders agree that it would not be just and equitable if contribution pursuant
to this Section 5(b) were determined by pro rata or per capita allocation or by any other
method of allocation which does not take account of the equitable considerations referred to in the
immediately preceding paragraph. No person found guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any
person who was not found guilty of such fraudulent misrepresentation.
(c) The amount paid by an indemnifying party or payable to an
indemnified party as a result of the losses, claims, damages and liabilities
referred to in this Section 5 shall be deemed to include, subject to
the limitations set forth above, any legal or other expenses reasonably
incurred by such indemnified party in connection with investigating or
defending any such action or claim, payable as the same are incurred. The
indemnification and contribution provided for in this Section 5
will
remain in full force and effect regardless of any investigation made by or on
behalf of the indemnified parties or any officer, director, employee, agent or
controlling person of the indemnified parties. No indemnifying party, in the
defense of any such claim or litigation, shall enter into a consent of entry of
any judgment or enter into a settlement without the consent of the indemnified
party, which consent will not be unreasonably withheld. Any indemnified party
that proposes to assert the right to be indemnified under this Section
5
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will, promptly after receipt of notice of commencement or threat of any
claim or action against such party in respect of which a claim is to be made
against an indemnifying party under this Section 5 notify the
indemnifying party in writing (such written notice, an “Indemnification
Notice”) of the commencement or threat of such action, enclosing a copy of
all papers served or notices received (if applicable), but the omission so to
notify the indemnifying party will not relieve the indemnifying party from any
liability that the indemnifying party may have to any indemnified party under
the foregoing provisions of this Section 5 unless, and only to the
extent that, such omission results in the forfeiture
of substantive rights or defenses by the indemnifying party.
The indemnified party will have the right to retain its own
counsel in any such action if (i) the employment of counsel
by the indemnified party has been authorized by the
indemnifying party, (ii) the indemnified party’s counsel,
with the concurrence of indemnifying party’s counsel, shall
have reasonably concluded that there is a substantial
likelihood of a conflict of interest between the indemnifying
party and the indemnified party in the conduct of the defense
of such action or (iii) the indemnifying party shall not in
fact have employed counsel to assume the defense of such
action within a reasonable period of time following its
receipt of the Indemnification Notice, in each of which cases
the fees and expenses of the indemnified party’s separate
counsel shall be at the expense of the indemnifying party;
provided, however, that the indemnified party
shall agree to repay any expenses so advanced hereunder if it
is ultimately determined by a court of competent jurisdiction
that the indemnified party to whom such expenses are advanced
is not entitled to be indemnified; and provided,
further, that so long as the indemnified party has
reasonably concluded that no conflict of interest exists, the
indemnifying party may assume the defense of any action
hereunder with counsel reasonably satisfactory to the
indemnified party.
(d) In the event of an underwritten offering of Registrable
Securities under this Agreement, the Company and the Holders shall enter into
standard indemnification and underwriting agreements with the underwriter
thereof. To the extent that the
provisions on indemnification and contribution contained in
the underwriting agreement entered into in connection with
the underwritten public offering are in conflict with the
provisions of this Section 5, the provisions in the
underwriting agreement shall control.
(e) The obligation of the Company and Holders under this
Section 5 shall survive the completion of any offering of Registrable
Securities in a registration statement under Section 2, and otherwise.
6. Market Standoff Agreement.
(a) In connection with the Initial Public Offering by the Company,
each Holder, if requested by the Company and the managing underwriter of the
Company’s securities, shall agree not to, directly or indirectly, offer, sell,
pledge, contract to sell (including any short sale), grant any option to
purchase or otherwise dispose of any securities of the Company held by it
(except for any securities sold pursuant to such registration statement) for a
period of ninety (90) days (or such longer period, not to exceed one hundred
eighty (180) days, that the managing underwriter specifies is required for
successful completion of the Initial Public Offering) following the effective
date of the registration statement as agreed to by such parties. Such
agreement shall be in writing and in form and substance reasonably satisfactory
to the Holders, the Company and such underwriter and pursuant to customary and
prevailing terms
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and conditions. The foregoing provisions of this Section
6(a) shall not apply to the sale of any shares to an underwriter pursuant
to an underwriting agreement, and shall only be applicable to the Holders if
all officers and directors and five percent (5%) or greater stockholders of the
Company enter into similar or more restrictive agreements with
respect to any shares of common stock of the Company that are beneficially held by them and
that are not being sold by them in connection with the Company’s Initial Public
Offering.
(b) Each Holder agrees that in the event the Company proposes to
offer for sale to the public any of its equity securities
after the Initial Public Offering, and if (i) such Holder
holds beneficially or of record five percent (5%) or more of
the outstanding equity securities of the Company, (ii)
requested by the Company and the managing underwriter of
Common Stock or other securities of the Company, and (iii)
all other such five percent (5%) stockholders are requested
by the Company and such underwriter to sign, and actually do
sign, a similar or more restrictive agreement restricting the
sale or other transfer of shares of the Company, then it will
not directly or indirectly, offer, sell, pledge, contract to
sell (including any short sale), grant any option to purchase
or otherwise dispose of any securities of the Company held by
it (except for any securities sold pursuant to such
registration statement) for a period of ninety (90) days (or
such longer period, not to exceed one hundred eighty (180)
days, that the managing underwriter specifies is required for
completion of the offering) following the effective date of
the registration statement as agreed to by such parties. Such
agreement shall be in writing and in form and substance
reasonably satisfactory to the Holders, the Company and such
underwriter and pursuant to customary and prevailing terms
and conditions.
7. Transferability of Registration Rights. The registration rights set
forth in this Agreement may not be transferred, except to the following Persons and
then, only if such Persons become Holders of Registrable Securities: APAX Funds
Nominees Limited; The Merlin BioSciences Funds; The Merlin Fund L.P.; Advent Private
Equity Funds; XX Xxxxxx Partners LLC; Merlin Equity Limited; or any subsidiary,
affiliate, parent or general partner of any of the foregoing. All transfers of
Registrable Securities are also subject to the transfer restrictions contained in the
Class A Stockholders Agreement, dated June 30, 2004, among the Company and the Class A
Stockholders of the Company. Each subsequent Holder of Registrable Securities must
consent in writing to be bound by the terms and conditions of this Agreement in order
to acquire the rights granted pursuant to this Agreement.
8. Miscellaneous.
(a) Notices. Except as otherwise expressly provided
herein, all notices, requests, demands, claims, and other communications
hereunder will be in writing. Any such notice, request, demand, claim, or
other communication hereunder shall be deemed duly given (a) upon confirmation
of facsimile, (b) one (1) business day following the date sent when sent by
overnight delivery
and (c) five (5) business days following the date mailed
when mailed by registered or certified mail return receipt
requested and postage prepaid at the following addresses (or
such other address for a Party as shall be specified by such
Party by like notice):
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| If to the Company: | 000 Xxxxxxxxxxxx Xxxxx | |||
| Xxxxx 000 | ||||
| Xxxxxxxxxxxx, XX 00000 | ||||
| Fax: (000) 000-0000 | ||||
| Attn: Xx. Xxxxxx X. Xxxxx-Nabi | ||||
| If to PLC or any Holder: | ||||
| To the address of PLC as set forth on the signature page hereto. |
(b) Entire Agreement. This Agreement, together with the
instruments and other documents hereby contemplated to be executed and
delivered in connection herewith, contains the entire agreement and
understanding of the parties hereto, and supersedes any prior agreements or
understandings between or among them, with respect to the subject matter
hereof.
(c) Successors and Assigns. The parties intend that this
Agreement shall not benefit or create any right or cause of action in or on
behalf of any person other than Parties hereto and their respective successors
and permitted assigns.
(d) Amendments and Waivers. Except as otherwise expressly
set forth in this Agreement, any term of this Agreement may be amended and the
observance of any term of this Agreement may be waived (either generally or in
a particular instance and either retroactively or prospectively), with the
written consent of the Company and the Holders of at least a majority of the
Registrable Securities. No waivers of or exceptions to any term, condition or
provision of this Agreement, in any one or more instances, shall be deemed to
be, or construed as, a further or continuing waiver of any such term,
condition or provision.
(e) Counterparts; Facsimile Execution. This Agreement may
be executed in multiple counterparts, each of which shall constitute an
original but all of which shall constitute but one and the same instrument.
One or more counterparts of this Agreement may be delivered via telecopier,
with the intention that they shall have the same effect as an original
counterpart hereof. Facsimile execution and delivery of this Agreement is
legal, valid and
binding for all purposes.
(f) Captions. The captions of the sections, subsections
and paragraphs of this Agreement have been added for convenience only and
shall not be deemed to be a part of this Agreement.
(g) Severability. Each provision of this Agreement shall
be interpreted in such manner as to validate and give effect thereto to the
fullest lawful extent, but if any provision of this Agreement is determined by
a court of competent jurisdiction to be invalid or unenforceable under
applicable law, such provision shall be ineffective only to the extent so
determined and such invalidity or unenforceability shall not affect the
remainder of such provision or the remaining provisions of this Agreement;
provided, however, that the Company and a majority of the Holders shall
negotiate in good faith to attempt to implement an equitable
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adjustment in the
provisions of this Agreement with a view toward effecting the purposes of this
Agreement by replacing the provision that is invalid or unenforceable with a
valid and enforceable provision the economic effect of which comes as close as
possible to that of the provision that has been found to be invalid and
unenforceable.
(h) Governing Law. This Agreement and the rights and
obligations of the Parties hereunder shall be governed by, and construed in
accordance with, the laws of the State of Delaware.
(i) Submission to Jurisdiction.
(iv) The Parties agree that any suit, action or proceeding with respect to any dispute,
controversies or claims or any judgment entered by any court in respect thereof may be brought in
any state or federal court in the state of Delaware and any appellate court thereof and irrevocably
and unconditionally submits to the non-exclusive jurisdiction of such courts for the purpose of any
such suit, action, proceeding or judgment. Each of the Parties hereto agrees that final judgment
in any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by
suit on the judgment or in any other manner provided by law. Each of the Parties further submits,
for the purpose of any such suit, action, proceeding or judgment brought or rendered against it, to
the appropriate courts of the jurisdiction of its domicile.
(v) The Parties agree that any suit, action or proceeding with respect to the Agreement or any
judgment entered by any court in respect thereof may be brought in the competent courts of the
state of Delaware, and irrevocably submits to the non-exclusive jurisdiction of such courts for the
purpose of any such suit, action, proceeding or judgment.
(vi) Nothing herein shall in any way be deemed to limit the ability of any Party to serve any
such process of summons, complaint and other legal process in any other manner permitted by
applicable law or to obtain jurisdiction over, or bring any suit, action or proceeding against, any
other Party in such other jurisdiction, and in such manner, as may be permitted by applicable law.
(vii) The Parties also irrevocably consent, if for any reason any of the Party’s authorized
agent for service of process of summons, complaint and other legal process in any action, suit or
proceeding is not present in Delaware, to the service of such papers being made out of those courts
by mailing copies of the papers by registered United States air mail, postage prepaid, to the Party
at its address specified in Section 8(a). In such a case, the relevant Party shall also
send by facsimile, or have sent by facsimile, a copy of the papers to all Parties.
(viii) Service in the manner provided in Section 8(h) in any action, suit or
proceeding will be deemed personal service, will be accepted by each of the Parties as such and
will be valid and binding upon such Party for all purposes of any such action, suit or proceeding.
(j) Appointment of Process Agent. The Parties hereby
irrevocably appoint Corporation Service Company (the “Process Agent”),
with an office on the date hereof at 0000 Xxxxxxxxxxx Xxxx, Xxxxxxxxxx,
Xxxxxxxx 00000, Xxxxxx Xxxxxx of America as its agent to receive
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on behalf of
each of the Parties service of copies of the summons and complaint and any
other process which may be served in any suit, action or proceeding. Each
Party agrees that the failure of the Process Agent to give any notice of any
such service of process to such Party shall not impair or affect the validity
of such service or, to the extent permitted by applicable law, the enforcement
of any judgment based thereon. Such appointment shall be irrevocable as long
as any amounts payable under this Agreement or the terms and conditions of
this Agreement are outstanding, except that if for any reason the Process
Agent appointed hereby ceases to be able to act as such, each Party shall, by
an instrument reasonably satisfactory to the other Parties, appoint another
Person in the State of Delaware as such Process Agent subject to the approval
(which approval shall not be unreasonably withheld) of the other Parties. PLC
covenants and agrees that it shall take any and all reasonable action,
including the execution and filing of any and all documents, that may be
necessary to continue the designation of a Process Agent pursuant to this
Section 8(i) in full force and effect and to cause the Process Agent
to act as such.
(k) Other Methods of Service. Nothing herein shall in any
way be deemed to limit the ability of any Party to serve any such process or
summonses in any other manner permitted by applicable law or to obtain
jurisdiction over, or bring any suit, action or proceeding against, the other
Parties in such other jurisdictions, and in such manner, as may be permitted
by applicable law.
(l) Waiver of Inconvenient Forum, Etc.. Each of the
Parties hereby irrevocably waives any objection that it may now or hereafter
have to the laying of the venue of any suit, action or proceeding arising out
of or relating to this Agreement brought in any state or federal court in the
State of Delaware, United States of America, and hereby further irrevocably
waives any claim that any such suit, action or proceeding brought in any such
court has been brought in an inconvenient forum. A final judgment (in respect
of which time for all appeals has elapsed) in any such suit, action or
proceeding shall be conclusive and may be enforced in any court to the
jurisdiction of which the Parties are or may be subject, by suit upon
judgment.
(m) EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY
LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS
AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY (WHETHER BASED ON CONTRACT,
TORT OR ANY OTHER THEORY). EACH PARTY HERETO (i) CERTIFIES THAT NO
REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED,
EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF
LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (ii) ACKNOWLEDGES THAT IT
AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT
BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
[Signature page follows]
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IN WITNESS WHEREOF, the Parties hereto have caused this Registration Rights Agreement to be duly
executed as of the date first set forth above.
COMPANY: |
EMERGENT BIOSOLUTIONS INC. | |||||
| By: | /s/ Fuad El-Hibri
|
|||||
| Name: Fuad El-Hibri | ||||||
| Title: Chairman, President and CEO | ||||||
PLC: |
MICROSCIENCE HOLDINGS PLC | |||||
| By: | /s/ [Illegible]
|
|||||
| Name: [Illegible] | ||||||
| Title: Finance Director | ||||||
| Address: | ||||||
| MICROSCIENCE HOLDINGS PLC | ||||||
| c/o Advent Venture Partners | ||||||
| 00 Xxxxxxxxxx Xxxx | ||||||
| Xxxxxx XX0X 0XX | ||||||
| Xxxxxx Xxxxxxx | ||||||
| Fax: 00 00 0000 0000 | ||||||
| Attention: Xxxxxxx Xxxxx | ||||||
| with a copy to: | ||||||
| Xxxxxxxx & Xxxxxxxx | ||||||
| CityPoint | ||||||
| Xxx Xxxxxxxxx Xxxxxx | ||||||
| Xxxxxx XX0X 0XX | ||||||
| Xxxxxx Xxxxxxx | ||||||
| Fax: 00 00 0000 0000 | ||||||
| Attention: Xxxxx Xxxxxxx | ||||||
[Signature Page to Registration Rights Agreement]
