VOTING AGREEMENT
Exhibit 9.4
Execution Version
VOTING AGREEMENT, effective as of June 30, 2004 (this “Agreement”), by and among the
stockholders of Emergent BioSolutions Inc. (the “Company”) named on Schedule 1
attached hereto (each a “Stockholder” and collectively, the “Stockholders”).
BACKGROUND
The Stockholders, collectively, are the beneficial and record owners of 6,487,950 shares (the
“Shares”) of the voting class A common stock (“Class A Stock”) of the Company and
they hold the Shares in the amounts specified opposite their respective names on Schedule
1. The Stockholders desire to enter into this voting agreement in order to codify their mutual
understanding regarding the voting of the Class A Stock and any other voting capital stock of the
Company that may hereafter be held by a Stockholder.
AGREEMENT
NOW THEREFORE, in consideration of the mutual agreements contained herein and other good and
adequate consideration, the Stockholders hereby agree as follows:
1. Representations and Warranties. Each Stockholder hereby represents and warrants to the
other Stockholders that:
(a) it has the requisite power and authority to enter into and perform this Agreement;
(b) its execution, delivery and performance of this Agreement have been duly authorized by all
necessary corporate action;
(c) this Agreement has been duly executed by an authorized officer of such party; and
(d) the performance of this Agreement by it will not require it to obtain the consent, waiver
or approval of any person and will not violate, result in a breach of, or constitute a default
under any statute, regulation, agreement, judgment, consent, or decree by which it is bound.
2. Quorum. Each Stockholder shall, at any time it owns any capital stock of the Company
and such capital stock has rights to vote at any annual, special or other general meeting of the
Company’s stockholders, and at any adjournment or adjournments thereof, cause all such capital
stock to be present in person or by proxy at such meeting for purposes of determining whether a
quorum is present at any such meeting.
3. Voting. Each Stockholder shall, at any time it owns any shares of capital stock of the
Company and such capital stock has rights to vote at any annual, special or other general meeting
or pursuant to a written resolution of the Company’s stockholders, vote such shares for and against
and abstain from voting with respect to any proposal as directed by a majority in interest
of the
Stockholders as measured by the percentage of ownership of the Company shown from time to time on
Schedule 1. Each Stockholder hereby appoints the General Manager of Intervac, LLC, with
full power of substitution, to vote all shares of the Company’s capital stock owned by each
Stockholder in the manner described in the preceding sentence.
4. Transfer Restrictions; Legend.
(a) Transfer Restrictions. Except as set forth in Section 4(b), each Stockholder
hereby agrees that all transfers of the Company’s capital stock made by it shall be made subject to
this Agreement and any transferee will agree in writing to be bound by the terms and provisions of
this Agreement as a condition precedent to any such transfer.
(b) Exception. This Section 4 shall not apply to any transfer by a Stockholder of the
Company’s capital stock made pursuant to: (i) an effective registration statement filed with the
Securities and Exchange Commission under the Securities Act of 1933, as amended (the “1933 Act”);
or (ii) Rule 144 promulgated under the 1933 Act.
(c) Legend. Each certificate representing any shares of capital stock of the Company
held by a Stockholder shall be endorsed with a legend in substantially the following form:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO
CERTAIN VOTING REQUIREMENTS AND OTHER RESTRICTIONS SET FORTH IN A
VOTING AGREEMENT BETWEEN THE HOLDER OF THIS CERTIFICATE AND CERTAIN
OTHER PARTIES. TRANSFER OF THE SECURITIES IS SUBJECT TO THE
RESTRICTIONS CONTAINED IN SUCH AGREEMENT.
CERTAIN VOTING REQUIREMENTS AND OTHER RESTRICTIONS SET FORTH IN A
VOTING AGREEMENT BETWEEN THE HOLDER OF THIS CERTIFICATE AND CERTAIN
OTHER PARTIES. TRANSFER OF THE SECURITIES IS SUBJECT TO THE
RESTRICTIONS CONTAINED IN SUCH AGREEMENT.
5. Additional Shares. If, after the effective date hereof, a Stockholder or any of its
affiliates acquires beneficial or record ownership of any additional shares of capital stock of the
Company (any such shares, “Additional Shares”), including, without limitation, upon
exercise of any option, warrant or right to acquire shares of capital stock of the Company or
through any stock dividend or stock split, the provisions of this Agreement shall thereafter be
applicable to such Additional Shares as if such Additional Shares had been held by such party as of
the effective date hereof and Schedule 1 shall be modified accordingly. The provisions of
the immediately preceding sentence shall be effective with respect to Additional Shares without
action by any person or entity immediately upon the acquisition by such Stockholder or its
affiliates of beneficial ownership of such Additional Shares. Such Stockholder shall cause any
affiliate that acquires Additional Shares to enter into a written joinder to this Agreement in form
and substance satisfactory to the other party. This Section 5 shall terminate as to a Stockholder
on the first anniversary following the date on which such Stockholder and its affiliates no longer
hold any shares of capital stock of the Company for a continuous twelve month period.
6. Termination. It is the intention of the Stockholders that this Agreement shall survive
any effective registration statement filed with the Securities and Exchange Commission under the
1933 Act and shall continue for so long as the Company is a reporting company under the Securities
Exchange Act of 1934, as amended. This Agreement shall automatically terminate on the tenth
(10th) anniversary of the effective date hereof. Upon the termination of this
Agreement,
2
except as otherwise set forth herein, the restrictions and obligations set forth herein
shall terminate and be of no further effect, except that such termination shall not affect rights
perfected or obligations incurred under this Agreement prior to such termination, and the
Stockholders shall each be entitled to receive certificate(s) representing such Stockholder’s
shares without the legend required by Section 4 herein upon the surrender of the certificate(s)
representing such shares to the Company.
7. Miscellaneous.
(a) Binding Effect. This Agreement and all the provisions hereof shall be binding upon
and inure to the benefit of the parties hereto and their respective successors and permitted
assigns. Neither this Agreement nor any of the rights, interests or obligations hereunder shall be
assigned by any of the parties hereto without the prior written consent of the other parties. The
parties hereto agree to cause their affiliates to agree in writing to be bound by the terms of this
Agreement prior to, or immediately upon, the acquisition of shares by such affiliates.
(b) Amendments. This Agreement may not be modified, amended, altered or supplemented
except upon the execution and delivery of a written agreement executed by each of the parties
hereto. However, any party may waive any condition to the obligations of any other party hereunder.
(c) Equitable Relief. The parties agree that it is impossible to determine the
monetary damages which would accrue to any party by reason of the failure of any party to perform
any of its obligations under this Agreement requiring the performance of an act other than the
payment of money only. Each party shall be entitled to enforce its rights under this Agreement
specifically and to exercise all other rights existing in its favor. The parties hereto agree and
acknowledge that money damages may not be an adequate remedy for any breach of the provisions of
this Agreement and that each party may in its sole discretion apply to any court of law or equity
of competent jurisdiction for specific performance and/or injunctive relief (without posting a bond
or other security) in order to enforce or prevent any violation of the provisions of this
Agreement. In the event of a breach or threatened breach by a party of any of the provisions of
this Agreement, the other parties hereto shall be entitled to an injunction restraining such party
from any such breach, and each party hereto waives any claim or defense that there is an adequate
remedy at law for such breach or threatened breach. The availability of such remedies shall not
prohibit any party from pursuing any other remedies for such breach or threatened breach, including
the recovery of damages from a breaching party.
(d) Notices. All notices, requests, demands and other communications required or
permitted hereunder shall be in writing and shall be deemed to have been duly given if delivered by
hand, facsimile or mail, certified or registered mail (return receipt requested) with postage
prepaid to the addresses of the Stockholders as specified on the signature pages hereto or to such
other address as any party may have furnished to the others in writing in accordance herewith.
(e) Arbitration.
3
Any controversy or claim arising out of or relating to this Agreement will be settled by
arbitration in accordance with the following provisions:
(i) Disputes Covered. The agreement of the parties to arbitrate covers all disputes
of every kind relating to or arising out of this Agreement, except disputes determined not
to be arbitratable by the arbitrator. Disputes include actions for breach of contract with respect
to this Agreement or the related agreement. In addition, the arbitrator selected according to
procedures set forth below will determine the arbitrability of any matter brought to them,
including their authority to impose equitable remedies that may be requested in good faith by a
party, and their decision will be final and binding on the parties.
(ii) Venue. The venue for the arbitration will be in Washington, D.C.
(iii) Law. The governing law for the arbitration will be the law of the State of
Delaware without reference to its conflicts of laws provisions.
(iv) Selection. There will be a single arbitrator appointed by the American
Arbitration Association.
(v) Administration. The arbitration will be administered by the American Arbitration
Association.
(vi) Rules. The rules of arbitration will be the Commercial Arbitration Rules of the
American Arbitration Association, as modified by any other instructions that the parties may agree
upon at the time. If there is any conflict between the Commercial Arbitration Rules and the
provisions of this section, the provisions of this section will prevail.
(vii) Substantive Law. The arbitrator will be bound by and shall strictly enforce the
terms of this Agreement and may not limit, expand or otherwise modify its terms. The arbitrator
will make a good faith effort to apply substantive applicable law, but an arbitration decision
shall not be subject to review because of errors of law.
(viii) Decision. The arbitrator’s decision will provide a reasoned basis for the
resolution of each dispute and for any award. The arbitrator will not have power to award damages
in connection with any dispute in excess of actual compensatory damages.
(ix) Fees; Expenses. Unless the arbitrator’s decision otherwise directs each party
will bear its own fees and expenses with respect to the arbitration and any proceeding related
thereto and the parties will share equally the fees and expenses of the American Arbitration
Association and the arbitrator.
(x) Remedies; Award. The arbitrator will have power and authority to award any remedy
or judgment that could be awarded by a court of law in the District of Columbia, subject to the
limitations set forth in this Agreement. The award rendered by arbitrator will be final and
binding upon the parties, and judgment upon the award may be entered in any court of competent
jurisdiction in the United States.
4
(f) Applicable Law. This Agreement and the legal relations among the parties hereto
arising from this Agreement shall be governed by and construed in accordance with the laws of the
State of Delaware, without reference to or application of any conflicts of law principles.
(g) Counterparts; Facsimile Execution. This Agreement may be executed simultaneously
in two or more counterparts, each of which shall be deemed original but all of which shall
constitute one and the same instrument. Facsimile execution and delivery of this Agreement is
legal, valid and binding for all purposes.
(h) Entire Agreement. This Agreement constitutes the entire agreement and
understanding of the parties hereto in respect of the subject matter contained herein. There are no
restrictions, promises, warranties, covenants or undertakings, other than those expressly set forth
or referred to herein. This Agreement supersedes all prior agreements and understandings among the
parties with respect to such subject matter.
{Remainder of this page intentionally left blank}
* * * *
5
{STOCKHOLDER SIGNATURE PAGE}
IN WITNESS WHEREOF, the undersigned Stockholder has executed this Voting Agreement effective
as of the date first above written.
| INTERVAC, LLC | ||||||
| By: | /s/ Fuad El-Hibri | |||||
| Name: Fuad El-Hibri | ||||||
| Title: General Manager | ||||||
| Address for Notices: | ||||||
| Intervac, LLC | ||||||
| 0000 Xxxx Xxxx Xxxxx | ||||||
| Xxxxx 000 | ||||||
| Xxxxxxxxx, XX 00000 | ||||||
| Attn: Fuad El-Hibri | ||||||
{STOCKHOLDER SIGNATURE PAGE}
IN WITNESS WHEREOF, the undersigned Stockholder has executed this Voting Agreement effective
as of the date first above written.
| BIOPHARM, LLC | ||||||
| By: | /s/ Xxxxxx X. Xxxxxx | |||||
| Name: Xxxxxx X. Xxxxxx | ||||||
| Title: General Manager | ||||||
| Address for Notices: | ||||||
| BioPharm, LLC | ||||||
| 3500 X. Xxxxxx Xxxxxx Xxxx, Xx. Blvd. | ||||||
| Building One, 3rd Floor | ||||||
| Lansing, MI 48906 | ||||||
| Attn: Xxxxxx X. Xxxxxx | ||||||
2
{STOCKHOLDER SIGNATURE PAGE}
IN WITNESS WHEREOF, the undersigned Stockholder has executed this Voting Agreement effective
as of the date first above written.
| MICHIGAN BIOLOGICS PRODUCTS, INC. | ||||||
| By: | /s/ Xxxxxx X. Xxxxx | |||||
| Name: Xxxxxx X. Xxxxx | ||||||
| Title: President | ||||||
| Address for Notices: | ||||||
| Michigan Biologics Products, Inc. | ||||||
| 3500 X. Xxxxxx Xxxxxx Xxxx, Xx. Blvd. | ||||||
| Building One, 3rd Floor | ||||||
| Lansing, MI 48906 | ||||||
| Attn: Xxxxxx X. Xxxxx | ||||||
3
{STOCKHOLDER SIGNATURE PAGE}
IN WITNESS WHEREOF, the undersigned Stockholder has executed this Voting Agreement effective
as of the date first above written.
| BIOVAC, LLC | ||||||
| By: | /s/ Fuad El-Hibri | |||||
| Name: Fuad El-Hibri | ||||||
| Title: General Manager | ||||||
| Address for Notices: | ||||||
| BioVac, LLC | ||||||
| 0000 Xxxx Xxxx Xxxxx | ||||||
| Xxxxx 000 | ||||||
| Xxxxxxxxx, XX 00000 | ||||||
| Attn: Fuad El-Hibri | ||||||
4
{STOCKHOLDER SIGNATURE PAGE}
IN WITNESS WHEREOF, the undersigned Stockholder has executed this Voting Agreement effective
as of the date first above written.
| BIOLOGIKA, LLC | ||||||
| By: | /s/ Xxxxx Xxxxxxxxx | |||||
| Name: Xxxxx Xxxxxxxxx | ||||||
| Title: General Manager | ||||||
| Address for Notices: | ||||||
| Biologika, LLC | ||||||
| 3500 X. Xxxxxx Xxxxxx Xxxx, Xx. Blvd. | ||||||
| Building One, 3rd Floor | ||||||
| Lansing, MI 48906 | ||||||
| Attn: Xxxxx Xxxxxxxxx | ||||||
5
{STOCKHOLDER SIGNATURE PAGE}
IN WITNESS WHEREOF, the undersigned Stockholder has executed this Voting Agreement effective
as of the date first above written.
| INTERVAC MANAGEMENT, LLC | ||||||
| By: | /s/ Fuad El-Hibri | |||||
| Name: Fuad El-Hibri | ||||||
| Title: General Manager | ||||||
| Address for Notices: | ||||||
| Intervac Management, LLC | ||||||
| 0000 Xxxx Xxxx Xxxxx | ||||||
| Xxxxx 000 | ||||||
| Xxxxxxxxx, XX 00000 | ||||||
| Attn: Fuad El-Hibri | ||||||
6
{STOCKHOLDER SIGNATURE PAGE}
IN WITNESS WHEREOF, the undersigned Stockholder has executed this Voting Agreement effective
as of the date first above written.
| ARPI, LLC | ||||||
| By: | /s/ Xxxxxx Mugriditchian | |||||
| Name: Xxxxxx Mugriditchian | ||||||
| Title: General Manager | ||||||
| Address for Notices: | ||||||
| ARPI, LLC | ||||||
| 00000 Xxxx Xxxx | ||||||
| Xxxxxxx, XX 00000 | ||||||
| Attn: Xxxxxx Mugriditchian | ||||||
7
SCHEDULE 1
STOCKHOLDERS
AS OF JUNE 30, 2004
| Class A Shares | Number of Shares | Percent of Total Shares | ||||||
1. Intervac, LLC |
2,890,000 | 44.54 | % | |||||
2. BioPharm, LLC |
1,412,896 | 21.78 | % | |||||
3. Michigan Biologics Products, Inc. |
672,500 | 10.36 | % | |||||
4. BioVac, LLC |
555,822 | 8.57 | % | |||||
5. Biologika, LLC |
477,941 | 7.37 | % | |||||
6. Intervac Management, LLC |
250,000 | 3.85 | % | |||||
7. ARPI, LLC |
228,791 | 3.53 | % | |||||
Total = |
6,487,950 | 100 | % | |||||
