EMERGENT BIOSOLUTIONS INC. ___Shares of Common Stock, par value $0.001 per share UNDERWRITING AGREEMENT
Exhibit 1.1
___Shares of Common Stock, par value $0.001 per share
, 2006
X.X. Xxxxxx Securities Inc.
Xxxxx and Company, LLC
HSBC Securities (USA) Inc.
As Representatives of the
several Underwriters listed
in Schedule I hereto
c/o X.X. Xxxxxx Securities Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxx and Company, LLC
HSBC Securities (USA) Inc.
As Representatives of the
several Underwriters listed
in Schedule I hereto
c/o X.X. Xxxxxx Securities Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Emergent BioSolutions Inc., a Delaware corporation (the “Company”), proposes to issue and sell
to the several Underwriters listed in Schedule I hereto (the “Underwriters”), for whom you are
acting as representatives (the “Representatives”), an aggregate of shares of common stock,
par value $0.001 per share (the “Common Stock”), of the Company and, at the option of the
Underwriters, up to an additional shares of Common Stock to cover over-allotments, if
any, and the stockholders of the Company named in Schedule II hereto (the “Selling Stockholders”)
propose to sell, at the option of the Underwriters, up to an additional shares of
Common Stock to cover over-allotments, if any. The aggregate of shares to be sold by
the Company are herein referred to as the “Underwritten Shares” and the aggregate of
additional shares to be sold by the Company and the Selling Stockholders at the option of the
Underwriters are herein referred to as the “Option Shares.” The Underwritten Shares and the Option
Shares are herein referred to as the “Shares.” The shares of Common Stock of the Company to be
outstanding after giving effect to the sale of the Shares are herein referred to as the “Stock.”
The Stock, including the Shares, will have attached thereto rights (the “Rights”) to purchase
shares of Series A Junior Participating Preferred Stock of the Company. The Rights are to be
issued pursuant to a Rights Agreement (the “Rights Agreement”) dated as of [ ] between the
Company and American Stock Transfer & Trust Company, as Rights Agent.
The Company and the Selling Stockholders hereby confirm their agreement with the several
Underwriters concerning the purchase and sale of the Shares, as follows:
registration statement (File No. 333-136622) including a prospectus, relating to the Shares
and the Rights. Such registration statement, as amended at the time it becomes effective,
including the information, if any, deemed pursuant to Rule 430A or 430C under the Securities Act to
be part of the registration statement at the time of its effectiveness (“Rule 430 Information”), is
referred to herein as the “Registration Statement;” and as used herein, the term “Preliminary
Prospectus” means each prospectus included in such registration statement (and any amendments
thereto) before it becomes effective, any prospectus filed with the Commission pursuant to Rule
424(a) under the Securities Act and the prospectus included in the Registration Statement at the
time of its effectiveness that omits Rule 430 Information, and the term “Prospectus” means the
prospectus in the form first used (or made available to the Underwriters by the Company upon
request of purchasers pursuant to Rule 173 under the Securities Act) in connection with
confirmation of sales of the Shares. If the Company has filed an abbreviated registration
statement pursuant to Rule 462(b) under the Securities Act (the “Rule 462 Registration Statement”),
then any reference herein to the term “Registration Statement” shall be deemed to include such Rule
462 Registration Statement. Capitalized terms used but not defined herein shall have the meanings
given to such terms in the Registration Statement and the Prospectus.
At or prior to the time when sales of the Shares were first made (the “Time of Sale”), the
Company had prepared the following information (collectively with the pricing information set forth
on Annex B, the “Time of Sale Information”): a Preliminary Prospectus dated 2006, and
each “free-writing prospectus” (as defined pursuant to Rule 405 under the Securities Act) listed on
Annex B hereto.
In addition, the Company as to of the Option Shares and each of the Selling
Stockholders as and to the extent indicated in Schedule II hereto, agree, severally and not
jointly, to sell the Option Shares to the several Underwriters as provided in this Agreement, and
the Underwriters, on the basis of the representations, warranties and agreements set forth herein
and subject to the conditions set forth herein, shall have the option to purchase, severally and
not jointly, from the Company and each of the Selling Stockholders the Option Shares at the
Purchase Price. If any Option Shares are to be purchased, the number of Option Shares to be
purchased by each Underwriter shall be the number of Option Shares which bears the same ratio to
the aggregate number of Option Shares being purchased as the number of Underwritten Shares set
forth opposite the name of such Underwriter in Schedule I hereto bears to the aggregate number of
Underwritten Shares being purchased from the Company by the several Underwriters, subject, however,
to such adjustments to eliminate any fractional Shares as the Representative in its sole discretion
shall make. Any such election to purchase Option Shares shall be made in
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proportion to the maximum number of Option Shares to be sold by the Company and each Selling
Stockholder as set forth in Schedule II hereto.
The Underwriters may exercise the option to purchase the Option Shares at any time in whole,
or from time to time in part, on or before the thirtieth day following the date of this Agreement,
by written notice from the Representatives to the Company and the Attorneys-in-Fact (as defined
below). Such notice shall set forth the aggregate number of Option Shares as to which the option
is being exercised and the date and time when the Option Shares are to be delivered and paid for
which may be the same date and time as the Closing Date (as hereinafter defined) but shall not be
earlier than the Closing Date nor later than the tenth full business day (as hereinafter defined)
after the date of such notice (unless such time and date are postponed in accordance with the
provisions of Section 12 hereof). Any such notice shall be given at least two Business Days prior
to the date and time of delivery specified therein. In the event of a partial exercise of the
option to purchase the Option Shares, the Underwriters shall first purchase Option Shares from the
Selling Shareholders on a pro rata basis until all Option Shares to be sold by the Selling
Shareholders have been purchased before purchasing Option Shares to be sold by the Company.
The Company and the Selling Stockholders understand that the Underwriters intend to make a
public offering of the Shares as soon after the effectiveness of this Agreement as in the judgment
of the Representatives is advisable, and initially to offer the Shares on the terms set forth in
the Prospectus. The Company and the Selling Stockholders acknowledge and agree that the
Underwriters may offer and sell Shares to or through any affiliate of an Underwriter and that any
such affiliate may offer and sell Shares purchased by it to or through any Underwriter.
(b) Payment for the Shares shall be made by wire transfer in immediately available funds to
the respective accounts specified to the Representatives by the Company and, in the case of the
Option Shares, the Attorneys-in-Fact at the offices of Dechert LLP, 00 Xxxxxxxxxxx Xxxxx, Xxx Xxxx,
XX at 10:00 A.M. New York City time on , 200 , or at such other time or place on the same or
such other date, not later than the fifth business day thereafter, as the Representatives and the
Company may agree upon in writing or, in the case of the Option Shares, on the date and at the time
and place specified by the Representatives in the written notice of the Underwriters’ election to
purchase such Option Shares. The time and date of such payment for the Underwritten Shares is
referred to herein as the “Closing Date” and the time and date for such payment for the Option
Shares, if other than the Closing Date, is herein referred to as the “Additional Closing Date.”
Payment for the Shares to be purchased on the Closing Date or the Additional Closing Date, as
the case may be, shall be made against delivery to the Representatives for the respective accounts
of the several Underwriters of the Shares to be purchased on such date in definitive form
registered in such names and in such denominations as the Representatives shall request in writing
not later than two full business days prior to the Closing Date or the Additional Closing Date, as
the case may be, with any transfer taxes payable in connection with the sale of the Shares duly
paid by the Company or the Selling Stockholders as the case may be. The certificates for the
Shares will be made available for inspection and packaging by the Representatives at the office of
X.X. Xxxxxx Securities Inc. set forth above not later than 1:00
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P.M., New York City time, on the business day prior to the Closing Date or the Additional
Closing Date, as the case may be.
(c) Each of the Company and the Selling Stockholders acknowledges and agrees that the
Underwriters are acting solely in the capacity of an arm’s length contractual counterparty to the
Company and the Selling Stockholders with respect to the offering of Shares contemplated hereby
(including in connection with determining the terms of the offering) and not as a financial advisor
or a fiduciary to, or an agent of, the Company, the Selling Stockholders or any other person.
Additionally, neither the Representatives nor any other Underwriter is advising the Company, the
Selling Stockholders or any other person as to any legal, tax, investment, accounting or
regulatory matters in any jurisdiction. The Company and the Selling Stockholders shall consult
with their own advisors concerning such matters and shall be responsible for making their own
independent investigation and appraisal of the transactions contemplated hereby, and the
Underwriters shall have no responsibility or liability to the Company or the Selling Stockholders
with respect thereto. Any review by the Underwriters of the Company, the transactions contemplated
hereby or other matters relating to such transactions will be performed solely for the benefit of
the Underwriters and shall not be on behalf of the Company or the Selling Stockholders.
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will not prepare, make, use, authorize, approve or refer to any “written communication” (as
defined in Rule 405 under the Securities Act) that constitutes an offer to sell or solicitation of
an offer to buy the Shares (each such communication by the Company or its agents and
representatives (other than a communication referred to in clause (i) below) an “Issuer Free
Writing Prospectus”) other than (i) any document not constituting a prospectus pursuant to Section
2(a)(10)(a) of the Securities Act or Rule 134 under the Securities Act or (ii) the documents listed
on Annex B hereto and other written communications approved in writing in advance by the
Representatives. Each such Issuer Free Writing Prospectus complied in all material respects with
the Securities Act, has been filed in accordance with the Securities Act (to the extent required
thereby) and, when taken together with the Preliminary Prospectus accompanying, or delivered prior
to delivery of, such Issuer Free Writing Prospectus, did not, and at the Closing Date and as of the
Additional Closing Date, as the case may be, will not, contain any untrue statement of a material
fact or omit to state a material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading; provided that the
Company makes no representation and warranty with respect to any statements or omissions made in
each such Issuer Free Writing Prospectus in reliance upon and in conformity with information
relating to any Underwriter furnished to the Company in writing by or on behalf of any Underwriter
expressly for use in any Issuer Free Writing Prospectus.
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accepted accounting principles applied on a consistent basis throughout the periods covered
thereby, except in the case of unaudited financial statements, which are subject to normal year-end
adjustments and do not contain certain footnotes as permitted by the applicable rules of the
Commission; and the other historical financial information included in the Registration Statement,
the Time of Sale Information and the Prospectus has been derived from the accounting records of the
Company and its subsidiaries and presents fairly the information shown thereby.
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issued and are fully paid and non-assessable and are not subject to any pre-emptive or similar
rights; except as described in or expressly contemplated by the Time of Sale Information and the
Prospectus, there are no outstanding rights (including, without limitation, pre-emptive rights),
warrants or options to acquire, or instruments convertible into or exchangeable for, any shares of
capital stock or other equity interest in the Company or any of its subsidiaries, or any contract,
commitment, agreement, understanding or arrangement of any kind relating to the issuance of any
capital stock of the Company or any such subsidiary, any such convertible or exchangeable
securities or any such rights, warrants or options; the capital stock of the Company conforms in
all material respects to the description thereof contained in the Registration Statement, the Time
of Sale Information and the Prospectus; and all the outstanding shares of capital stock or other
equity interests of each subsidiary of the Company have been duly and validly authorized and
issued, are fully paid and non-assessable and except as otherwise described in the Registration
Statement, the Time of Sale Information and the Prospectus are owned directly or indirectly by the
Company, free and clear of any lien, charge, encumbrance, security interest, restriction on voting
or transfer or any other claim of any third party.
(j) Underwriting Agreement. This Agreement has been duly authorized, executed and delivered
by the Company.
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indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which
the Company or any of its subsidiaries is a party or by which the Company or any of its
subsidiaries is bound or to which any of the property or assets of the Company or any of its
subsidiaries is subject; or (iii) in violation of any law or statute or any judgment, order, rule
or regulation of any court or arbitrator or governmental or regulatory authority having
jurisdiction over the Company or any of its subsidiaries, except, in the case of clauses (ii) and
(iii) above, for any such default or violation that would not, individually or in the aggregate,
have a Material Adverse Effect.
(n) No Consents Required. No consent, approval, authorization, order, registration or
qualification of or with any court or arbitrator or governmental or regulatory authority is
required for the execution, delivery and performance by the Company of this Agreement, the issuance
by the Company of the Shares or the Rights and the consummation of the transactions contemplated by
this Agreement, except for the registration of the Shares under the Securities Act and such
consents, approvals, authorizations, orders and registrations or qualifications as have already
been obtained or made or as may be required by the rules and regulations of the National
Association of Securities Dealers, Inc. or the New York Stock Exchange or under applicable state
securities laws in connection with the purchase and distribution of the Shares by the Underwriters.
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and the Prospectus and (ii) there are no statutes, regulations or contracts or other documents
that are required under the Securities Act to be filed as exhibits to the Registration Statement or
described in the Registration Statement or the Prospectus that are not so filed as exhibits to the
Registration Statement or described in the Registration Statement, the Time of Sale Information and
the Prospectus.
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cause, cure, deficiency, default or similar notices relating to such Government Contract; (ix)
not been notified in writing of any bid or award protest proceedings arising under or related to a
Government Bid or Government Contract; (x) not been notified in writing that any money due to the
Company pertaining to a Government Contract has been withheld or set off; (xi) not been notified in
writing that the Company or any of its subsidiaries is being suspended or debarred from Government
Bids or Government Contracts; and (xii) not been notified in writing of any material claims against
the Company or any of its subsidiaries, which remain outstanding or pending, brought against the
Company as a result of any violation or breach of any Government Bid or Government Contract. As
used herein, “Government Bid” means, with respect to the Company or any subsidiary of the Company,
any firm quotation, bid or proposal made by the Company, which if accepted or awarded, would lead
to a Government Contract. “Government Contract” means, with respect to the Company or any
subsidiary, any contract, including any prime contract, subcontract, facility contract, services
contract, teaming agreement or arrangement, joint venture, basic ordering agreement, letter
contract, purchase order, delivery order, change order or other contractual arrangement of any
kind, between the Company or any subsidiary and (1) the United States federal government or the
national government of any foreign country (acting on its own behalf or on behalf of another
country or international organization), (2) any prime contractor of the United States federal
government or the national government of any foreign country, but only with respect to a contract
between such prime contractor and the United States federal government or the national government
of any foreign country, or (3) any subcontractor with respect to any contract of a type described
in clauses (1) or (2) above.
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issued by the appropriate federal, state, local or foreign regulatory agencies or bodies
necessary to conduct the business of the Company as described in the Prospectus, including without
limitation, all such registrations, approvals, certificates, authorizations and permits required by
the United States Food and Drug Administration (the “FDA”) or any other federal, state, local or
foreign agencies or bodies engaged in the regulation of clinical trials, pharmaceuticals, biologics
or biohazardous substances or materials (“Governmental Regulatory Authority”), except where the
failure so to possess would not, singly or in the aggregate, have a Material Adverse Effect.
Neither the Company nor any Subsidiaries have received any notice of proceedings relating to the
revocation or modification of any such Governmental Licenses, which, singly or in the aggregate,
would have a Material Adverse Effect. The Company has not failed to submit to the FDA an
Investigational New Drug Application that is required for a clinical trial it is conducting or
sponsoring, except where such failure would not, singly or in the aggregate, have a Material
Adverse Effect; all such submissions were in material compliance with applicable laws when
submitted and no material deficiencies have been asserted by the FDA with respect to any such
submissions, except any deficiencies which would not, singly or in the aggregate, have a Material
Adverse Effect. Except as described in the Registration Statement, the Time of Sale Information
and the Prospectus, the Company has not received from the FDA or any other Governmental Regulatory
Authority any notice of adverse findings, notice of violations, Warning Letter, criminal proceeding
notice under Section 305 of the Federal Food, Drug, and Cosmetic Act, or other similar
communication from the FDA or other Governmental Authority alleging or asserting material
noncompliance with applicable law or any Governmental Licenses, which remain outstanding or
pending, and there are no seizures, recalls, market withdrawals, field notifications, notifications
of misbranding or adulteration, safety alerts or similar actions relating to the safety or efficacy
of the Company’s products being conducted, requested in writing or, to the knowledge of the
Company, threatened by the FDA or other Governmental Authority relating to the products sold by the
Company. Except as described in the Registration Statement, the Time of Sale Information and the
Prospectus, since the FDA approval of a supplement to the Company’s manufacturing facility license
for BioThrax in December 2001, the Company has not, either voluntarily or involuntarily, initiated,
conducted, or issued or caused to be initiated, conducted or issued, any recall, market withdrawal,
safety alert or other similar notice or action relating to the alleged lack of safety or efficacy
of any of the Company’s products or any alleged product defect or violation, and the Company has no
knowledge that any Governmental Authority has initiated, conducted or intends to initiate any such
notice or action. Since the FDA approval of a supplement to the Company’s manufacturing facility
license for BioThrax in December 2001, except as described in the Registration Statement, the Time
of Sale Information and the Prospectus, the Company has not received notice of any proceeding
seeking recall, suspension or seizure of any products being sold or intended to be sold by the
Company.
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Prospectus do not contain any misstatement of a material fact or omit to state a material fact
necessary to make such statements, in the light of the circumstances under which they were made,
not misleading; the Company is not aware of any other trials, studies or tests not described in the
Registration Statement and the Prospectus, the results of which reasonably call into question the
results described in the Registration Statement and the Prospectus; and the Company has not
received any written notice or correspondence from the FDA or any foreign, state or local
governmental body exercising comparable authority requiring the termination, suspension, or
clinical hold of any tests or preclinical or clinical studies, or such written notice or, where
applicable, correspondence from any Institutional Review Board or comparable authority requiring
the termination or suspension of a clinical study, conducted by or on behalf of the Company, which
termination, suspension, or clinical hold would reasonably be expected to have a Material Adverse
Effect.
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these purposes accrued but unpaid contributions) exceeds the present value of all benefits
accrued under such plan determined using reasonable actuarial assumptions.
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provision of the Foreign Corrupt Practices Act of 1977, as amended; or (iv) made any unlawful
bribe, rebate, payoff, influence payment, kickback or other unlawful payment.
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(rr) Off-Balance Sheet Arrangements. There are no transactions, arrangements or other
relationships between or among the Company, its subsidiaries, any of its affiliates and any
unconsolidated entity, including, but not limited to, any structured finance, special purpose or
limited purpose entity that would reasonably be expected to materially affect the Company’s
liquidity or the availability of or requirements for its capital resources that are required to be
described in the Prospectus and that have not been described as required.
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(f) Issuer Free Writing Prospectus. Other than the Preliminary Prospectus and the Prospectus,
such Selling Stockholder (including its agents and representatives, other than the Underwriters in
their capacity as such) has not made, used, prepared, authorized, approved or
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referred to and will not prepare, make, use, authorize, approve or refer to any Issuer Free
Writing Prospectus, other than (i) any document not constituting a prospectus pursuant to Section
2(a)(10)(a) of the Securities Act or Rule 134 under the Securities Act or (ii) the documents listed
on Annex B hereto and other written communications approved in writing in advance by the Company
and the Representatives.
Each of the Selling Stockholders, severally and not jointly, specifically agrees that the
Shares represented by the certificates held in custody for such Selling Stockholder under the
Custody Agreement, are subject to the interests of the Underwriters hereunder, and that the
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arrangements made by such Selling Stockholder for such custody, and the appointment by such Selling
Stockholder of the Attorneys-in-Fact by the Power of Attorney, are to that extent irrevocable.
Each of the Selling Stockholders specifically agrees that the obligations of such Selling
Stockholder hereunder shall not be terminated by operation of law, whether by the death or
incapacity of any individual Selling Stockholder, or, in the case of an estate or trust, by the
death or incapacity of any executor or trustee or the termination of such estate or trust, or in
the case of a partnership, corporation or similar organization, by the dissolution of such
partnership, corporation or organization, or by the occurrence of any other event. If any
individual Selling Stockholder or any such executor or trustee should die or become incapacitated,
or if any such estate or trust should be terminated, or if any such partnership, corporation or
similar organization should be dissolved, or if any other such event should occur, before the
delivery of the Shares hereunder, certificates representing such Shares shall be delivered by or on
behalf of such Selling Stockholder in accordance with the terms and conditions of this Agreement
and the Custody Agreement, and actions taken by the Attorneys-in-Fact pursuant to the Powers of
Attorney shall be as valid as if such death, incapacity, termination, dissolution or other event
had not occurred, regardless of whether or not the Custodian, the Attorneys-in-Fact, or any of
them, shall have received notice of such death, incapacity, termination, dissolution or other
event.
(a) Required Filings. The Company will file the Prospectus with the Commission within the
time periods specified by Rule 424(b) and Rule 430A or 430C under the Securities Act and will file
any Issuer Free Writing Prospectus to the extent required by Rule 433 under the Securities Act; and
the Company will furnish copies of the Prospectus and each Issuer Free Writing Prospectus (to the
extent not previously delivered) to the Underwriters in New York City as soon as practicable but in
no event later than 10:00 A.M., New York City time on the second business day succeeding the date
of this Agreement in such quantities as the Representatives may reasonably request.
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copy of the proposed Issuer Free Writing Prospectus, amendment or supplement for review and
will not prepare, use, authorize, approve, refer to or file any such Issuer Free Writing Prospectus
or file any such proposed amendment or supplement to which the Representatives reasonably object.
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Underwriters thereof and forthwith prepare and, subject to paragraph (c) above, file with the
Commission (to the extent required) and furnish to the Underwriters and to such dealers as the
Representatives may designate, such amendments or supplements to the Time of Sale Information as
may be necessary so that the statements in the Time of Sale Information as so amended or
supplemented will not, in the light of the circumstances, be misleading or so that the Time of Sale
Information will comply with law.
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news or a material event relating to the Company occurs; or (2) prior to the expiration of the
180-day restricted period, the Company announces that it will release earnings results during the
16-day period beginning on the last day of the 180-day period, the restrictions imposed by this
Agreement shall continue to apply until the expiration of the 18-day period beginning on the
issuance of the earnings release or the occurrence of the material news or material event.
(k) Exchange Listing. The Company will use its best efforts to list the Shares on the New
York Stock Exchange.
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(a) It has not and will not use, authorize use of, refer to, or participate in the planning
for use of, any “free writing prospectus,” as defined in Rule 405 under the Securities Act (which
term includes use of any written information furnished to the Commission by the Company and not
incorporated by reference into the Registration Statement and any press release issued by the
Company) other than (i) a free writing prospectus that contains no “issuer information” (as defined
in Rule 433(h)(2) under the Securities Act) that was not included (including through incorporation
by reference) in the Preliminary Prospectus or a previously filed Issuer Free Writing Prospectus,
(ii) any Issuer Free Writing Prospectus listed on Annex B or prepared pursuant to Section 3(c) or
Section 4(c) above, or (iii) any free writing prospectus prepared by such underwriter and approved
by the Company in advance in writing (each such free writing prospectus referred to in clauses (i)
or (iii), an “Underwriter Free Writing Prospectus”).
(b) It has not and will not distribute any Underwriter Free Writing Prospectus referred to in
clause (a)(i) in a manner reasonably designed to lead to its broad unrestricted dissemination.
(c) It has not and will not, without the prior written consent of the Company, use any free
writing prospectus that contains the final terms of the Shares unless such terms have previously
been included in a free writing prospectus filed with the Commission; provided that
Underwriters may use a term sheet substantially in the form of Annex C hereto without the consent
of the Company; provided, further, that any Underwriter using such term sheet shall
notify the Company, and provide a copy of such term sheet to the Company, prior to, or
substantially concurrently with, the first use of such term sheet.
(d) It will, pursuant to reasonable procedures developed in good faith, retain copies of each
free writing prospectus used or referred to by it, in accordance with Rule 433 under the Securities
Act.
(e) It is not subject to any pending proceeding under Section 8A of the Securities Act with
respect to the offering (and will promptly notify the Company if any such proceeding against it is
initiated during the Prospectus Delivery Period).
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hereof; and all requests by the Commission for additional information shall have been complied
with to the reasonable satisfaction of the Representatives.
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Date or the Additional Closing Date, as the case may be, prevent the issuance or sale of the
Shares.
(n) Exchange Listing. The Shares to be delivered on the Closing Date or the Additional
Closing Date, as the case may be, shall have been approved for listing on the New York Stock
Exchange, subject to official notice of issuance.
All opinions, letters, certificates and evidence mentioned above or elsewhere in this
Agreement shall be deemed to be in compliance with the provisions hereof only if they are in form
and substance reasonably satisfactory to counsel for the Underwriters.
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The Company also agrees to indemnify and hold harmless, Xxxxx and Company, LLC, its
affiliates, directors and officers and each person, if any, who controls Xxxxx and Company, LLC,
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 and liabilities incurred as a result of Xxxxx and
Company, LLC’s participation as a “qualified independent underwriter” within the meaning of the
Rules of Conduct of the National Association of Securities Dealers, Inc. in connection with the
offering of the Shares.
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arise out of, or are based upon, any untrue statement or omission or alleged untrue statement
or omission made in reliance upon and in conformity with any information relating to any
Underwriter furnished to the Company in writing by or on behalf of any Underwriter expressly for
use in the Registration Statement, the Prospectus (or any amendment or supplement thereto), any
Issuer Free Writing Prospectus or any Time of Sale Information, it being understood and agreed that
the only such information furnished by any Underwriter consists of the information described as
such in paragraph (c) below.
Each of the Selling Stockholders severally in proportion to the number of Shares to be sold by
such Selling Stockholder hereunder also agrees to indemnify and hold harmless Xxxxx and Company,
LLC, its affiliates, directors and officers and each person, if any, who controls Xxxxx and
Company, LLC, 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 and liabilities incurred as a result of
Xxxxx and Company, LLC’s participation as a “qualified independent underwriter” within the meaning
of the Rules of Conduct of the National Association of Securities Dealers, Inc. in connection with
the offering of the Shares, but only with respect to any losses, claims, damages or liabilities
that arise out of, or are based upon, any untrue statement or omission or alleged untrue statement
or omission made in reliance upon and in conformity with any information relating to such Selling
Stockholder furnished to the Company in writing by or on behalf of such Selling Stockholder
expressly for use in the Registration Statement, the Prospectus (or any amendment or supplement
thereto), any Issuer Free Writing Prospectus or any Time of Sale Information, it being understood
and agreed upon that the only such information furnished by any Selling Stockholder consists of the
information specifically relating to the Selling Stockholder under the caption “Principal and
selling stockholders” in the Prospectus and the Preliminary Prospectus.
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failure; and provided, further, that the failure to notify the Indemnifying
Person shall not relieve it from any liability that it may have to an Indemnified Person otherwise
than under this Section 9. If any such proceeding shall be brought or asserted against an
Indemnified Person and it shall have notified the Indemnifying Person thereof, the Indemnifying
Person shall be entitled to participate therein and, to the extent it wishes, jointly with any
other similarly notified Indemnifying Person, to assume the defense thereof with counsel reasonably
satisfactory to the Indemnified Person to represent the Indemnified Person and any others entitled
to indemnification pursuant to this Section 9 that the Indemnifying Person may designate in such
proceeding and shall pay the fees and expenses of such counsel related to such proceeding, as
incurred. After notice from the Indemnifying Person to the Indemnified Person of its election to
assume the defense of such proceeding, the Indemnifying Person shall not be liable to the
Indemnified Person under this Section 9 for any legal or other expenses subsequently incurred by
the Indemnified Person in connection with the defense thereof other than reasonable costs of
investigation; provided, however, that in any such proceeding, any Indemnified
Person shall have the right to retain its own counsel to participate in, but not control, the
defense of such proceeding, but the fees and expenses of such counsel shall be at the expense of
such Indemnified Person unless (i) the Indemnifying Person and the Indemnified Person shall have
mutually agreed to the contrary or (ii) the Indemnifying Person has failed within a reasonable time
to retain counsel reasonably satisfactory to the Indemnified Person. It is understood and agreed
that the Indemnifying Person shall not, in connection with any proceeding or related proceeding in
the same jurisdiction, be liable for the fees and expenses of more than one separate firm (in
addition to any local counsel) for all Indemnified Persons, and that all such reasonable fees and
expenses shall be paid or reimbursed as they are incurred; provided, however, that
if indemnity may be sought pursuant to the second paragraph of Section 7(a) above in respect of
such proceeding, then in addition to such separate firm for the Underwriters, their affiliates and
such control persons of the Underwriters the indemnifying party shall be liable for the fees and
expenses of not more than one separate firm (in addition to any local counsel) for Xxxxx and
Company, LLC in its capacity as a “qualified independent underwriter,” its affiliates and all
persons, if any, who control Xxxxx and Company, LLC within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act. Any such separate firm for any Underwriter, its
affiliates, directors and officers and any control persons of such Underwriter shall be designated
in writing by X.X. Xxxxxx Securities Inc., any such separate firm for Xxxxx and Company, LLC, in
its capacity as a “qualified independent underwriter,” shall be designated in writing by Xxxxx and
Company, LLC, any such separate firm for the Company, its directors, its officers who signed the
Registration Statement and any control persons of the Company shall be designated in writing by the
Company and any separate firm for the Selling Stockholders shall be designated in writing by the
Attorney-in-Fact. The Indemnifying Person shall not be liable for any settlement of any proceeding
effected without its written consent, but if settled with such consent or if there be a final
judgment for the plaintiff, the Indemnifying Person agrees to indemnify each Indemnified Person
from and against any loss or liability by reason of such settlement or judgment. Notwithstanding
the foregoing sentence, if at any time an Indemnified Person shall have requested that an
Indemnifying Person reimburse the Indemnified Person for fees and expenses of counsel as
contemplated by this paragraph, the Indemnifying Person shall be liable for any settlement of any
proceeding effected without its written consent if (i) such settlement is entered into (A) more
than 60 days after receipt by the Indemnifying Person of such request and (B) more than 30 days
after receipt by the Indemnifying Party of the proposed terms of such
-29-
settlement and (ii) the Indemnifying Person shall not have reimbursed the Indemnifying Person
in accordance with such request prior to the date of such settlement. No Indemnifying Person
shall, without the written consent of the Indemnified Person, effect any settlement of any pending
or threatened proceeding in respect of which any Indemnified Person is or could have been a party
and indemnification could have been sought hereunder by such Indemnified Person, unless such
settlement (x) includes an unconditional release of such Indemnified Person, in form and substance
reasonably satisfactory to such Indemnified Person, from all liability on claims that are the
subject matter of such proceeding and (y) does not include any statement as to or any admission of
fault, culpability or a failure to act by or on behalf of any Indemnified Person.
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referred to in paragraph (e) above shall be deemed to include, subject to the limitations set
forth above, any reasonable legal or other expenses incurred by such Indemnified Person in
connection with any such action or claim. Notwithstanding the provisions of this Section 9, in no
event shall an Underwriter be required to contribute any amount in excess of the amount by which
the total underwriting discounts and commissions received by such Underwriter with respect to the
offering of the Shares exceeds the amount of any damages that such Underwriter has otherwise been
required to pay by reason of such untrue or alleged untrue statement or omission or alleged
omission. No person 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 guilty of such
fraudulent misrepresentation. The Underwriters’ obligations to contribute pursuant to this Section
9 are several in proportion to their respective purchase obligations hereunder and not joint. The
Selling Stockholders’ obligations to contribute pursuant to this Section 9 are several in
proportion to their respective receipt of net proceeds (before expenses) hereunder and not joint.
11. Termination. This Agreement may be terminated in the absolute discretion of the
Representatives, by notice to the Company and the Selling Stockholders, if after the execution and
delivery of this Agreement and prior to the Closing Date or, in the case of the Option Shares,
prior to the Additional Closing Date (i) trading generally shall have been suspended or materially
limited on or by any of the New York Stock Exchange, the American Stock Exchange, the National
Association of Securities Dealers, Inc., the Chicago Board Options Exchange, the Chicago Mercantile
Exchange or the Chicago Board of Trade; (ii) trading of any securities issued or guaranteed by the
Company shall have been suspended on any exchange or in any over-the-counter market; (iii) a
general moratorium on commercial banking activities shall have been declared by federal or New York
State authorities; or (iv) there shall have occurred any outbreak or escalation of hostilities or
any change in financial markets or any calamity or crisis, either within or outside the United
States, that, in the judgment of the Representatives, is material and adverse and makes it
impracticable or inadvisable to proceed with the offering, sale or delivery of the Shares on the
Closing Date or the Additional Closing Date, as the case may be, on the terms and in the manner
contemplated by this Agreement, the Time of Sale Information and the Prospectus.
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to procure other persons satisfactory to the non-defaulting Underwriters to purchase such
Shares on such terms. If other persons become obligated or agree to purchase the Shares of a
defaulting Underwriter, either the non-defaulting Underwriters or the Company and the Selling
Stockholders may postpone the Closing Date or the Additional Closing Date, as the case may be, for
up to five full business days in order to effect any changes that in the opinion of counsel for the
Company, counsel for the Selling Stockholders or counsel for the Underwriters may be necessary in
the Registration Statement and the Prospectus or in any other document or arrangement, and the
Company agrees to promptly prepare any amendment or supplement to the Registration Statement and
the Prospectus that effects any such changes. As used in this Agreement, the term “Underwriter”
includes, for all purposes of this Agreement unless the context otherwise requires, any person not
listed in Schedule I hereto that, pursuant to this Section 12, purchases Shares that a defaulting
Underwriter agreed but failed to purchase.
(b) If, after giving effect to any arrangements for the purchase of the Shares of a defaulting
Underwriter or Underwriters by the non-defaulting Underwriters and the Company and the Selling
Stockholders as provided in paragraph (a) above, the aggregate number of Shares that remain
unpurchased on the Closing Date or the Additional Closing Date, as the case may be does not exceed
one-eleventh of the aggregate number of Shares to be purchased on such date, then the Company and
the Selling Stockholders shall have the right to require each non-defaulting Underwriter to
purchase the number of Shares that such Underwriter agreed to purchase hereunder on such date plus
such Underwriter’s pro rata share (based on the number of Shares that such Underwriter agreed to
purchase on such date) of the Shares of such defaulting Underwriter or Underwriters for which such
arrangements have not been made.
(c) If, after giving effect to any arrangements for the purchase of the Shares of a defaulting
Underwriter or Underwriters by the non-defaulting Underwriters and the Company and the Selling
Stockholders as provided in paragraph (a) above, the aggregate number of Shares that remain
unpurchased on the Closing Date or the Additional Closing Date, as the case may be, exceeds
one-eleventh of the aggregate amount of Shares to be purchased on such date, or if the Company and
the Selling Stockholders shall not exercise the right described in paragraph (b) above, then this
Agreement or, with respect to any Additional Closing Date, the obligation of the Underwriters to
purchase Shares on the Additional Closing Date, as the case may be, shall terminate without
liability on the part of the non-defaulting Underwriters. Any termination of this Agreement
pursuant to this Section 12 shall be without liability on the part of the Company and the Selling
Stockholders, except that the provisions of Section 9 hereof shall not terminate and shall remain
in effect.
(d) Nothing contained herein shall relieve a defaulting Underwriter of any liability it may
have to the Company, the Selling Stockholders or any non-defaulting Underwriter for damages caused
by its default.
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Preliminary Prospectus, any Issuer Free Writing Prospectus, any Time of Sale Information and
the Prospectus (including all exhibits, amendments and supplements thereto) and the distribution
thereof; (iii) the costs of reproducing and distributing this Agreement; (iv) the fees and expenses
of the Company’s counsel and independent accountants; (v) the fees and reasonable expenses, not
exceeding $10,000 in the aggregate, incurred in connection with the registration or qualification
and determination of eligibility for investment of the Shares under the laws of such jurisdictions
as the Representatives may designate and the preparation, printing and distribution of a Blue Sky
Memorandum (including the related reasonable fees and expenses of counsel for the Underwriters);
(vi) the cost of preparing stock certificates; (vii) the costs and charges of any transfer agent
and any registrar; (viii) all application fees and reasonable expenses incurred in connection with
any filing with, and clearance of the offering by, the National Association of Securities Dealers,
Inc. (including the fees and reasonable expenses of Xxxxx and Company, LLC acting as “qualified
independent underwriter” within the meaning of the aforementioned Rule 2720 of The Rules of
Conduct); (ix) all expenses incurred by the Company in connection with any “road show” presentation
to potential investors; and (x) all expenses and application fees related to the listing of the
Shares on the New York Stock Exchange.
(b) If (i) this Agreement is terminated pursuant to clauses (ii) of Section 11, (ii) the
Company or the Selling Stockholders for any reason fail to tender the Shares for delivery to the
Underwriters or (iii) the Underwriters decline to purchase the Shares for any reason permitted
under this Agreement (other than following termination of this Agreement pursuant to clause (i),
(iii) or (iv) of Section 11), the Company agrees to reimburse the Underwriters for all
out-of-pocket costs and expenses (including the reasonable fees and expenses of their counsel)
reasonably incurred by the Underwriters in connection with this Agreement and the offering
contemplated hereby.
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set forth in Rule 405 under the Securities Act; and (d) the term “significant subsidiary” has
the meaning set forth in Rule 1-02 of Regulation S-X under the Exchange Act.
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If the foregoing is in accordance with your understanding, please indicate your acceptance of
this Agreement by signing in the space provided below.
| Very truly yours, EMERGENT BIOSOLUTIONS INC. |
||||
| By | ||||
| Title: | ||||
| SELLING STOCKHOLDERS |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
| By: | ||||
| Name: | ||||
| Title: | ||||
| As Attorneys-in-Fact acting on behalf of each of the Selling Stockholders named in Schedule II to this Agreement. |
||||
Accepted: , 200
X.X. XXXXXX SECURITIES INC.
| By |
For itself and on behalf of the
several Underwriters listed
in Schedule I hereto.
several Underwriters listed
in Schedule I hereto.
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Schedule I
| Underwriter | Number of Shares | |||
X.X. Xxxxxx Securities Inc. |
||||
Xxxxx and
Company, LLC |
||||
HSBC Securities (USA) Inc. |
||||
Total |
||||
Schedule II
| Selling Stockholders | Number of Option Shares | |||
Annex A
1. The Company has been duly incorporated and is validly existing as a corporation in good
standing under the laws of the State of Delaware and has the corporate power and authority to carry
on its business and to own or lease its properties, as such business and properties are described
in the Time of Sale Information and the Prospectus.
2. The Company is duly qualified and is in good standing as a foreign corporation authorized
to do business in the State of Maryland.
3. Each of the subsidiaries of the Company listed on Schedule C attached hereto has
been duly incorporated or formed and is validly existing as a corporation or limited liability
company in good standing under the laws of the applicable jurisdiction as set forth on Schedule
C attached hereto.
4. Each of the subsidiaries of the Company listed on Schedule C attached hereto are
duly qualified and in good standing as a foreign corporation or limited liability company
authorized to do business in the applicable jurisdictions as set forth on Schedule C
attached hereto.
5. All the outstanding shares of capital stock of the Company have been duly authorized and
are validly issued, fully paid and non-assessable.
6. The Shares have been duly authorized and, when issued and delivered to the Underwriters
against payment therefor as provided by the Underwriting Agreement, will be validly issued, fully
paid and non-assessable, and the issuance of such Shares will not be subject to any preemptive
rights under the Delaware General Corporation Law statute or the Certificate of Incorporation or
By-laws or similar contractual rights granted by the Company pursuant to any contract or agreement
that has been filed as an exhibit to the Registration Statement.
7. The Underwriting Agreement has been duly authorized, executed and delivered by the Company.
8. To our knowledge, no stop order suspending the effectiveness of the Registration Statement
has been issued and no proceedings for that purpose are pending before or threatened by the
Commission.
9. Except as may be required under the Securities Act and the rules and regulations of the
Commission thereunder and the Securities Exchange Act of 1934, as amended, and the rules and
regulations of the Commission thereunder, no filing with, or authorization, approval, consent,
license, order, registration, qualification or decree of, any United States federal governmental
authority or agency is necessary for the issuance, sale and delivery of the Shares by the Company
to the Underwriters pursuant to the Underwriting Agreement.
10. The execution and delivery of the Underwriting Agreement by the Company and the
consummation by the Company of the transactions contemplated thereby will not (A) conflict
with or constitute a breach of any of the terms or provisions of, or a default under, the
Certificate of Incorporation or By-laws or any indenture, loan agreement, mortgage, lease or other
agreement or instrument to which the Company is a party and that is filed as an exhibit to the
Registration Statement or (B) violate or conflict with any United States federal or Massachusetts
law, rule or regulation that in our experience is normally applicable in transactions of the type
contemplated by the Underwriting Agreement, the Delaware General Corporation Law statute, or any
judgment, order or decree specifically naming the Company of which we are aware.
11. The statements in the Time of Sale Information and the Prospectus under the captions
“Description of capital stock” and “Shares eligible for future sale” and in Item 14 of Part II of
the Registration Statement, insofar as such statements constitute matters of law or legal
conclusions or summarize the terms of agreements, are correct in all
material respects.
12. The Company is not and, after giving effect to the offering and sale of the Shares and the
application of the proceeds thereof as described in the Prospectus, will not be an “investment
company,” as such term is defined in the Investment Company Act of 1940, as amended.
12. Except as described in the Time of Sale Information and the Prospectus, no contract or
agreement that has been filed as an exhibit to the Registration Statement grants any person a right
to require the Company to register pursuant to the Registration Statement any securities other than
the Shares, except for any such right as has been waived.
13 The Rights Agreement has been duly authorized, executed and delivered by the Company. The
Rights have been duly authorized by the Company, and, when the Shares are issued and delivered to
the Underwriters against payment therefor as provided in the Underwriting Agreement and the Rights
are issued upon issuance of the Shares as provided in the Rights Agreement, the Rights applicable
to the Shares will be validly issued. The shares of Series A Junior Participating Preferred Stock
issuable upon exercise of the Rights have been duly authorized and reserved for issuance and, upon
the exercise of the Rights in accordance with the terms of the Rights Agreement and when issued and
delivered and paid for as provided in the Rights Agreement, will be validly issued, fully paid and
non-assessable.
In addition to the opinions provided above, we confirm to you as follows: In the course of
acting as counsel for the Company in connection with the preparation of the Registration Statement,
the Time of Sale Information and the Prospectus, we have participated in conferences with officers
and other representatives of the Company, representatives of and counsel for the Underwriters and
representatives of the registered independent public accounting firm of the Company, during which
the contents of the Registration Statement, the Time of Sale Information and the Prospectus were
discussed. While the limitations inherent in the independent verification of factual matters and
the character of determinations involved in the registration process are such that we are not
passing upon and do not assume any responsibility for the accuracy, completeness or fairness of the
statements contained in the Registration Statement, the Time of Sale Information or the Prospectus
(except to the extent expressly set forth in paragraph 11 above), subject to the foregoing and
based on such participation and discussions:
(a) the Registration Statement, as of the Effective Date, and the Prospectus, as of the date
thereof (except for the financial statements, including the notes and schedules thereto, and other
financial and accounting data and statistical data derived from such financial and accounting data
included therein or omitted therefrom, as to which we express no view) appear on their face to be
appropriately responsive in all material respects to the requirements of the Securities Act and the
applicable rules and regulations of the Commission thereunder;
(b) no facts have come to our attention that have caused us to believe that (i) the
Registration Statement, as of the Effective Date, 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 (except as set forth in the parenthetical in clause (a) above),
(ii) the Time of Sale Information, as of the Time of Sale, contained an untrue statement
of a material fact or omitted to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not misleading (except as
set forth in the parenthetical in clause (a) above) or (iii) the Prospectus, as of its date or as
of the date hereof, contained or contains an untrue statement of a material fact or omitted or
omits to state a material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading (except as set forth in the
parenthetical in clause (a) above);
(c) we are not aware of any contract or other document of a character required by the
Securities Act and the applicable rules and regulations of the Commission thereunder to be filed as
an exhibit to the Registration Statement that is not so filed; and
(d) we
are not aware of any action, proceeding or litigation pending, contemplated or threatened against the Company before any court or governmental or
administrative agency or body that is
required by the Securities Act or the rules and regulations
thereunder to be described in the Registration Statement or the Prospectus that is not so described.
Annex B
| a. | Time of Sale Information | |
| b. | [Pricing Information Provided Orally by Underwriters] |
Annex D
1. To our actual knowledge, except as disclosed in the Registration Statement, we are not aware of
any pending or threatened claims, action, suit, or proceeding asserting third party intellectual
property rights against the Company. To our actual knowledge, we are not aware of any order,
judgment, decree or injunction restricting the operation of the business of the Company. We have
not, however, carried out an independent review to determine whether such matters may have arisen
and make no representations in that regard.
2. To our actual knowledge, the issued patents [and patent applications] that the Company
represents in the Intellectual Property and Licensing Section of the Registration Statement to have
been duly maintained have not been abandoned, disclaimed or declared invalid or unenforceable by
any court of competent jurisdiction. We have not, however, carried out an independent review of
such patents [and patent applications] for the purposes of this Opinion and make no representations
regarding matters beyond our actual knowledge.
3. To our actual knowledge, no person or entity other than the Company has asserted any
inventorship or ownership rights in any of the patents or patent applications that we have handled
for the Company (as set forth in Schedule A). We have not, however, carried out an independent
review that we deem sufficient to express to the Underwriter any opinion concerning whether the
inventors named in the [European][U.S.] patent applications that we handled for the Company (as set
forth in Schedule A) were correctly determined.
Annex E
(1) Each Selling Stockholder is the record, beneficial and lawful owner of all of the
Shares to be sold by such Selling Stockholder and has valid and marketable title to such
Shares, and upon delivery of and payment for the Shares, the Underwriters will acquire valid
and marketable title to the shares, free and clear of any mortgage, pledge, security
interest, lien, claim or other encumbrance or restriction on transferability or any adverse
claim.
(2) The sale of the Shares and the execution and delivery by the Selling Stockholder
of, and the performance by the Selling Stockholder of its obligations under, the
Underwriting Agreement, and the consummation of the transactions contemplated therein, (i)
have been duly authorized on the part of each of the Selling Stockholders, and (ii) will not
conflict with or result in a breach of any of the terms or provisions of, or constitute a
default under, any indenture, mortgage, deed of trust, loan agreement or other material
agreement or instrument, identified to us in any Selling Stockholder’s Certificate, to which
any Selling Stockholder is a party or by which any Selling Stockholder is bound or to which
any of the property or assets of any Selling Stockholder is subject, nor will any such
action result in any violation of the provisions of the charter or bylaws or similar
organizational documents of any Selling Stockholder or any applicable law or statute or any
order, rule or regulation of any court or governmental agency or body having jurisdiction
over such Selling Stockholder or any of its properties. No consent, approval,
authorization, order, registration or qualification of or with any such court or
governmental agency or body is required for the sale of the Shares or the consummation by
the Selling Stockholders of the transactions contemplated by the Underwriting Agreement,
except such consents, approvals, authorizations, registrations or qualifications as have
been obtained under the Securities Act of 1933 and as may be required under state securities
or Blue Sky laws in connection with the purchase and distribution of the Shares by the
Underwriters.
(3) The Power of Attorney and the Custody Agreement of each Selling Stockholder have
been duly authorized, executed and delivered by such Selling Stockholder and constitute
valid and legally binding obligations of each such Selling Stockholder, enforceable in
accordance with their respective terms; and
(4) The Underwriting Agreement has been duly authorized, executed and delivered by or on behalf of
each Selling Stockholder.
Annex F
The statements in the Time of Sale Information and the Prospectus under the captions “Business —
Government Contracts”, “Business — Government Regulation — Safety Act”, “Business — Government
Regulation — Public Readiness and Emergency Preparedness Act”, insofar as such statements
constitute matters of law or legal conclusions or summarize the terms of agreements, fairly
summarize the matters described therein in all material respects.
Exhibit A
FORM OF LOCK-UP AGREEMENT
, 2006
X.X. Xxxxxx Securities Inc.
Xxxxx & Co., LLC
HSBC Securities (USA) Inc.
As Representatives of
the several Underwriters listed in
Schedule I to the Underwriting
Agreement referred to below
c/o X.X. Xxxxxx Securities Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Xxxxx & Co., LLC
HSBC Securities (USA) Inc.
As Representatives of
the several Underwriters listed in
Schedule I to the Underwriting
Agreement referred to below
c/o X.X. Xxxxxx Securities Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
| Re: | Emergent BioSolutions Inc. -— Public Offering |
Ladies and Gentlemen:
The undersigned understands that you, as Representatives of the several Underwriters, propose
to enter into an Underwriting Agreement (the “Underwriting Agreement”) with Emergent BioSolutions
Inc., a Delaware corporation (the “Company”), providing for the public offering (the “Public
Offering”) by the several Underwriters named in Schedule I to the Underwriting Agreement (the
“Underwriters”), of shares (the “Securities”) of the common stock, par value $0.01 per share, of
the Company (the “Common Stock”). Capitalized terms used herein and not otherwise defined shall
have the meanings set forth in the Underwriting Agreement.
In consideration of the Underwriters’ agreement to purchase and make the Public Offering of
the Securities, and for other good and valuable consideration receipt of which is hereby
acknowledged, the undersigned hereby agrees that, without the prior written consent of X.X. Xxxxxx
Securities Inc. on behalf of the Underwriters, the undersigned will not, during the period ending
180 days after the date of the prospectus relating to the Public Offering (the “Prospectus”), (1)
offer, pledge, announce the intention to sell, sell, contract to sell, sell any option or contract
to purchase, purchase any option or contract to sell, grant any option, right or warrant to
purchase, or otherwise transfer or dispose of, directly or indirectly, any shares of Common Stock
or any securities convertible into or exercisable or exchangeable for Common Stock (including
without limitation, Common Stock which may be deemed to be beneficially owned by the undersigned in
accordance with the rules and regulations of the Securities and
Exchange Commission and securities which may be issued upon exercise of a stock option or warrant)
or (2) enter into any swap or other agreement that transfers, in whole or in part, any of the
economic consequences of ownership of the Common Stock, whether any such transaction described in
clause (1) or (2) above is to be settled by delivery of Common Stock or such other securities, in
cash or otherwise. In addition, the undersigned agrees that, without the prior written consent of
X.X. Xxxxxx Securities Inc. on behalf of the Underwriters, it will not, during the period ending
180 days after the date of the Prospectus, make any demand for or exercise any right with respect
to, the registration of any shares of Common Stock or any security convertible into or exercisable
or exchangeable for Common Stock. Notwithstanding the foregoing, if (1) during the last 17 days of
the 180-day restricted period, the Company issues an earnings release or material news or a
material event relating to the Company occurs; or (2) prior to the expiration of the 180-day
restricted period, the Company announces that it will release earnings results during the 16-day
period beginning on the last day of the 180-day period, the restrictions imposed by this Letter
Agreement shall continue to apply until the expiration of the 18-day period beginning on the
issuance of the earnings release or the occurrence of the material news or material event. The
undersigned hereby further agrees that, prior to engaging in any transaction or taking any other
action that is subject to the terms of this Letter Agreement during the period from the date of
this Letter Agreement to and including the 34th day following the expiration of the
initial 180-day restricted period, it will give notice thereof to the Company and will not
consummate such transaction or take any such action unless it has received written confirmation
from the Company or X.X. Xxxxxx Securities Inc. that the 180-day restricted period (as such may
have been extended pursuant to this paragraph) has expired.
The restrictions imposed by this Letter Agreement shall not apply to the transfer or
disposition of shares of Common Stock or any securities convertible into or exercisable or
exchangeable for Common Stock (1) as a bona fide gift, (2) to any trust for the direct or indirect
benefit of the undersigned or the immediate family of the undersigned in a transaction not
involving a disposition for value, (3) to any corporation, partnership, limited liability company
or other entity all of the beneficial ownership interests of which are held by the undersigned or
the immediate family of the undersigned in a transaction not involving a disposition for value, (4)
by will, other testamentary document or intestate succession to the legal representative, heir,
beneficiary or a member of the immediate family of the undersigned, (5) as a distribution to
partners, members or stockholders of the undersigned in a transaction not involving a disposition
for value or (6) to any affiliate of the undersigned or any investment fund or other entity
controlled or managed by the undersigned in a transaction not involving a disposition for value;
provided that, in each case, the transferee, distributee or donee agrees in writing to be bound by
the terms of this Letter Agreement to the same extent as if a party hereto; and, provided further
that, in the case of (3), (5) and (6) above, no filing pursuant to Section 16(a) of the Securities
Exchange Act of 1934, as amended (the “Exchange Act”), reporting a reduction in the beneficial
ownership of Common Stock shall be required or shall be voluntarily made in connection with such
transfer (other than a filing on a Form 5 made after the expiration of the 180-day restricted
period or any extension thereof pursuant to this Letter Agreement). In addition, the restrictions
imposed by this Letter Agreement shall not apply to the sale of Securities by the undersigned
pursuant to the Underwriting Agreement. Furthermore, notwithstanding the restrictions imposed by
this Letter Agreement, the undersigned may, without the prior written consent of X.X. Xxxxxx
Securities Inc., (1) exercise an option to purchase shares of Common Stock granted under any
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stock incentive plan or stock purchase plan of the Company, (2) establish a trading plan
pursuant to Rule 10b5-1 under the Exchange Act for the transfer of Common Stock, provided that such
plan does not provide for any transfers of Common Stock during the 180-day restricted period or any
extension thereof pursuant to this Letter Agreement, and (3) transfer shares of Common Stock
acquired in the Public Offering or on the open market following the Public Offering. For purposes
of this Letter Agreement, “immediate family” shall mean any relationship by blood, marriage or
adoption, not more remote than first cousin.
In furtherance of the foregoing, the Company, and any duly appointed transfer agent for the
registration or transfer of the securities described herein, are hereby authorized to decline to
make any transfer of securities if such transfer would constitute a violation or breach of this
Letter Agreement.
The undersigned hereby represents and warrants that the undersigned has full power and
authority to enter into this Letter Agreement. All authority herein conferred or agreed to be
conferred and any obligations of the undersigned shall be binding upon the successors, assigns,
heirs or personal representatives of the undersigned.
If either X.X. Xxxxxx Securities Inc., on the one hand, or the Company, on the other hand,
informs the other, prior to the execution of the Underwriting Agreement, that it has determined not
to proceed with the Public Offering, if the Public Offering is not completed by February 28, 2007,
or if the Underwriting Agreement (other than the provisions thereof which survive termination)
shall terminate or be terminated prior to payment for and delivery of the Common Stock to be sold
thereunder, this Letter Agreement shall terminate automatically and be of no further force or
effect. The undersigned understands that the Underwriters are entering into the Underwriting
Agreement and proceeding with the Public Offering in reliance upon this Letter Agreement.
This Letter Agreement shall be governed by and construed in accordance with the laws of the
State of New York, without regard to the conflict of laws principles thereof.
| Very truly yours, [NAME OF STOCKHOLDER] |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
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