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:
1. Registration Statement. The Company has prepared and filed with the Securities and
Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended, and the rules
and regulations of the Commission thereunder (collectively, the “Securities Act”), a
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.
2. Purchase of the Shares by the Underwriters. (a) The Company agrees to issue and
sell the Underwritten Shares to the several Underwriters as provided in this Agreement, and each
Underwriter, on the basis of the representations, warranties and agreements set forth herein and
subject to the conditions set forth herein, agrees, severally and not jointly, to purchase from the
Company the respective number of Underwritten Shares set forth opposite such Underwriter’s name in
Schedule I hereto at a price per share (the “Purchase Price”) of $ . The public offering
price of the Shares is not in excess of the price recommended by Xxxxx and Company, LLC, acting as
a “qualified independent underwriter” within the meaning of Rule 2720 of the Rules of Conduct of
the National Association of Securities Dealers, Inc.
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.
3. Representations and Warranties of the Company. The Company represents and warrants
to each Underwriter and the Selling Stockholders that:
(a) Preliminary Prospectus. No order preventing or suspending the use of any Preliminary
Prospectus has been issued by the Commission, and each Preliminary Prospectus, at the time of
filing thereof, complied in all material respects with the Securities Act and did not contain any
untrue statement of a material fact or omit to state a material fact required to be stated therein
or 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 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 Preliminary Prospectus.
(b) Time of Sale Information. The Time of Sale Information, at the Time of Sale 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 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 such Time of Sale Information. No statement of material fact included in the Prospectus
has been omitted from the Time of Sale Information and no statement of material fact included in
the Time of Sale Information that is required to be included in the Prospectus has been omitted
therefrom.
(c) Issuer Free Writing Prospectus. Other than the Preliminary Prospectus and the Prospectus,
the Company (including its agents and representatives, other than the Underwriters in their
capacity as such) has not made, used, prepared, authorized, approved or referred to and
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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.
(d) Registration Statement and Prospectus. The Registration Statement has been declared
effective by the Commission. No order suspending the effectiveness of the Registration Statement
has been issued by the Commission and, to the knowledge of the Company, no proceeding for that
purpose or pursuant to Section 8A of the Securities Act against the Company or related to the
offering has been initiated or threatened by the Commission; as of the applicable effective date of
the Registration Statement and any amendment thereto, the Registration Statement complied and will
comply in all material respects with the Securities Act, and did not and will not contain any
untrue statement of a material fact or omit to state a material fact required to be stated therein
or necessary in order to make the statements therein not misleading; and as of the date of the
Prospectus and any amendment or supplement thereto and as of the Closing Date and as of the
Additional Closing Date, as the case may be, the Prospectus will not contain any untrue statement
of a material fact or omit to state a material fact required to be stated therein or 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 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 the Registration Statement and the Prospectus and any amendment or supplement thereto.
(e) Financial Statements. The financial statements and the related notes thereto of the
Company and its consolidated subsidiaries included in the Registration Statement, the Time of Sale
Information and the Prospectus comply in all material respects with the applicable requirements of
the Securities Act and the Securities Exchange Act of 1934, as amended, and the rules and
regulations of the Commission thereunder (collectively, the “Exchange Act”), as applicable, and
present fairly the financial position of the Company and its subsidiaries as of the dates indicated
and the results of their operations and the changes in their cash flows for the periods specified;
such financial statements have been prepared in conformity with generally
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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.
(f) No Material Adverse Change. Since the date of the most recent financial statements of the
Company included in the Registration Statement, the Time of Sale Information and the Prospectus,
except as disclosed therein or contemplated thereby, (i) except for the issuance of shares of Stock
upon the exercise of outstanding options or under existing employee or director compensation or
stock option plans and the grant of options or rights to purchase Stock under existing employee or
director compensation or stock option plans, there has not been any change in the capital stock or
increase in long-term debt of the Company or any of its subsidiaries, or any dividend or
distribution of any kind declared, set aside for payment, paid or made by the Company on any class
of capital stock, or any material adverse change or any development that would result in a material
adverse change in the business, properties, management, financial position, stockholders’ equity or
results of operations of the Company and its subsidiaries taken as a whole; (ii) neither the
Company nor any of its subsidiaries has entered into any transaction or agreement that is material
to the Company and its subsidiaries taken as a whole or incurred any liability or obligation,
direct or contingent, that is material to the Company and its subsidiaries taken as a whole; and
(iii) neither the Company nor any of its subsidiaries has sustained any loss or interference with
its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or
from any labor disturbance or dispute or any action, order or decree of any court or arbitrator or
governmental or regulatory authority that is material to the Company and its subsidiaries taken as
a whole, except in each case as otherwise disclosed in the Registration Statement, the Time of Sale
Information and the Prospectus.
(g) Organization and Good Standing. The Company and each of its subsidiaries have been duly
organized and are validly existing and in good standing under the laws of their respective
jurisdictions of organization, are duly qualified to do business and are in good standing in each
jurisdiction in which their respective ownership or lease of property or the conduct of their
respective businesses requires such qualification, and have all corporate, or such other
comparable, power and authority necessary to own or hold their respective properties and to conduct
the businesses in which they are engaged, except where the failure to be so qualified or have such
power or authority would not, individually or in the aggregate, have a material adverse effect on
the business, properties, management, financial position, stockholders’ equity, results of
operations or prospects of the Company and its subsidiaries taken as a whole (a “Material Adverse
Effect”). The Company does not own or control, directly or indirectly, any corporation,
association or other entity other than the subsidiaries listed in Exhibit 21.1 to the Registration
Statement.
(h) Capitalization. The Company has an authorized capitalization as set forth in the
Registration Statement, the Time of Sale Information and the Prospectus under the heading
“Capitalization;” all the outstanding shares of capital stock of the Company (including the Option
Shares to be sold by the Selling Stockholders) have been duly and validly authorized and
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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.
(i) Due Authorization. The Company has full right, power and authority to execute and deliver
this Agreement and to perform its obligations hereunder; and all action required to be taken for
the due and proper authorization, execution and delivery by it of this Agreement and the
consummation by it of the transactions contemplated hereby has been duly and validly taken.
(j) Underwriting Agreement. This Agreement has been duly authorized, executed and delivered
by the Company.
(k) The Shares. The Shares to be issued and sold by the Company hereunder have been duly
authorized by the Company and, when issued and delivered and paid for as provided herein, will be
duly and validly issued and will be fully paid and nonassessable and will conform in all material
respects to the descriptions thereof in the Time of Sale Information and the Prospectus; the
issuance of the Shares is not subject to any pre-emptive or similar rights; the Rights Agreement
has been duly authorized, executed and delivered by the Company and constitutes a valid and legally
binding agreement of the Company enforceable against the Company in accordance with its terms,
subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or
similar laws affecting the enforcement of creditors’ rights or remedies generally and by equitable
principles relating to enforceability, including principles of commercial reasonableness, good
faith and fair dealing (regardless of whether enforcement is sought in a proceeding at law or in
equity) (collectively, the “Enforceability Exceptions”); the Rights have been duly authorized by
the Company and, when issued upon issuance of the Shares, will be validly issued; and the shares of
Series A Junior Participating Preferred Stock issuable upon exercise of the Rights have been duly
authorized by the Company and validly 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.
(l) No Violation or Default. Neither the Company nor any of its subsidiaries is (i) in
violation of its charter or by-laws or similar organizational documents; (ii) in default, and no
event has occurred that, with notice or lapse of time or both, would constitute such a default, in
the due performance or observance of any term, covenant or condition contained in any
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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.
(m) No Conflicts. The execution, delivery and performance by the Company of each of this
Agreement, the issuance by the Company of the Underwritten Shares and the Rights and the
consummation by the Company of the transactions contemplated by this Agreement will not (i)
conflict with or result in a breach or violation of any of the terms or provisions of, or
constitute a default under, or result in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of the Company or any of its subsidiaries pursuant to, any
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, (ii) result in any violation of the provisions of the charter or by-laws or similar
organizational documents of the Company or any of its subsidiaries or (iii) result in the 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 (i) and (iii) above, for any such conflict, breach 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.
(o) Legal Proceedings. Except as described in the Registration Statement, the Time of Sale
Information and the Prospectus, there are no legal, governmental or regulatory investigations,
actions, suits or proceedings pending to which the Company or any of its subsidiaries is a party or
to which any property of the Company or any of its subsidiaries is the subject that, individually
or in the aggregate, if determined adversely to the Company or any of its subsidiaries could
reasonably be expected to have a Material Adverse Effect or materially and adversely affect the
ability of the Company to perform its obligations under this Agreement; to the knowledge of the
Company, no such investigations, actions, suits or proceedings are threatened or contemplated by
any governmental or regulatory authority or threatened by others; and (i) there are no current or
pending legal, governmental or regulatory actions, suits or proceedings that are required under the
Securities Act to be described in the Registration Statement that are not so described in the
Registration Statement, the Time of Sale Information
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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.
(p) Independent Accountants. Ernst & Young LLP, who have certified certain financial
statements of the Company and its subsidiaries, are an independent registered public accounting
firm with respect to the Company and its subsidiaries within the applicable rules and regulations
adopted by the Commission and the Public Accounting Oversight Board (United States) and as required
by the Securities Act.
(q) Title to Real and Personal Property. Except as described in or expressly contemplated by
the Registration Statement, the Time of Sale Information and the Prospectus, the Company and its
subsidiaries have good and marketable title in fee simple to, or have valid rights to lease or
otherwise use, all items of real and personal property that are material to each of the respective
businesses of the Company and its subsidiaries taken as a whole, in each case free and clear of all
liens, encumbrances, claims and defects and imperfections of title except those that (i) do not
materially interfere with the use made and proposed to be made of such property by the Company and
its subsidiaries or (ii) would not reasonably be expected, individually or in the aggregate, to
have a Material Adverse Effect.
(r) Possession of Intellectual Property. Except as described in or expressly contemplated by
the Registration Statement, the Time of Sale Information and the Prospectus, the Company owns or
has valid, binding and enforceable licenses or other rights to use the Company Intellectual
Property (as defined below), subject to the Enforceability Exceptions, and neither the Company nor
any of its subsidiaries is obligated to pay a material royalty, grant a material license, or
provide other material consideration to any third party in connection with the Company Intellectual
Property. Except as described in the Registration Statement, the Time of Sale Information and the
Prospectus or as would not reasonably be expected to have a Material Adverse Effect, (i) the
Company has not received any written notice of any infringement with respect to the Company
Intellectual Property or with respect to the Company’s products or processes described in the
Registration Statement, the Time of Sale Information and the Prospectus, (ii) the discoveries,
inventions, products or processes of the Company and its subsidiaries referred to in the Prospectus
do not, to the knowledge of the Company, infringe or interfere with any patent claim of any third
party and (iii) no third party has any ownership right in or to any Company Intellectual Property
that is owned by the Company, other than any co-owner of any patent or patent application
constituting Company Intellectual Property who is listed on the records of the U.S. Patent and
Trademark Office (the “PTO”), and, to the knowledge of the Company, no third party has any
ownership right in or to any Company Intellectual Property that is exclusively licensed to the
Company, other than any licensor of the Company of such Company Intellectual Property. For
purposes of this Agreement, “Intellectual Property” means patents, patent applications, copyrights,
trade secrets, trademarks, service marks and trade names, and “Company Intellectual Property” means
Intellectual Property reasonably necessary to conduct the business of the Company as described in
the Prospectus.
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(s) PTO Matters. The Company has duly and properly filed or caused to be filed with the PTO
and applicable foreign and international patent authorities all patent applications owned by the
Company (the “Company Patent Applications”). To the knowledge of the Company, the Company has
complied with the PTO’s duty of candor and disclosure and best mode requirement for the Company
Patent Applications and has made no material misrepresentation in the Company Patent Applications.
To the knowledge of the Company, the Company has complied with the relevant foreign filing
requirements underlying patentability and enforceability of any resultant patents for the Company
Patent Applications pending in countries outside the United States. The Company is not aware of any
information material to a determination of patentability regarding the Company Patent Applications
not called to the attention of the PTO or similar foreign authority. The Company is not aware of
any information not called to the attention of the PTO or similar foreign authority which would
preclude the grant of a patent for the Company Patent Applications. The Company has no knowledge of
any information which would preclude the Company from having clear title to the Company Patent
Applications.
(t) Government Contracts and Government Bids. With respect to any Government Bid or
Government Contract (in each case, as defined below) to which the Company or any of its
Subsidiaries are a party, except as described in the Registration Statement, the Time of Sale
Information and the Prospectus or as would not have a Material Adverse Effect, the Company and its
subsidiaries have: (i) with full authority, duly and properly entered into such Government
Contracts, and fully and completely complied in all material respects with the terms and conditions
of such Government Contracts; (ii) in soliciting, submitting or entering into such Government Bid
or Government Contract, and in all documentation associated with entering into such Government Bid
or Government Contract, not knowingly made any false, incomplete or misleading statements,
certifications or representations; (iii) in soliciting, submitting or entering into such Government
Bid or Government Contract, and in all activities associated with entering into or performing under
such Government Bid or Government Contract, to the knowledge of the Company, complied in all
material respects with all applicable laws, regulations or agreements pertaining to such Government
Bid or Government Contract; (iv) not been notified in writing by any governmental entity, prime
contractor, subcontractor or other person that the Company or any of its subsidiaries is in
material breach or default of any material obligation, agreement, certification, covenant or
condition contained in any Government Contract, or breached or violated in any material respect any
applicable law or regulation pertaining to such Government Contract; (v) not been notified in
writing that it is the subject of a governmental investigation or audit, which remains ongoing or
pending; (vi) not been notified in writing of any material cost, billing, schedule, technical or
quality problems that would reasonably be expected to result in claims against the Company or any
of its subsidiaries as a result of any violation or breach of any Government Contract (vii) not
conducted or initiated any internal investigation, inspection or audit, or, to the Company’s or any
of its subsidiaries’ knowledge, had reason to conduct, initiate or report any internal
investigation, inspection or audit or made a voluntary disclosure to a government or regulatory
agency, with respect to any alleged irregularity, misstatement, or acts committed or acts of
omission in violation or breach of a Government Bid or Government Contract, nor, to the knowledge
of the Company, are there any facts or circumstances that would reasonably be expected to give rise
to such an investigation, inspection or audit; (viii) not been notified in writing of any intent to
terminate, or any termination for convenience or termination for default with respect to a
Government Contract, or received any written notifications to show
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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.
(u) No Undisclosed Relationships. No relationship, direct or indirect, exists between or
among the Company or any of its subsidiaries, on the one hand, and the directors, officers,
stockholders, customers or suppliers of the Company or any of its subsidiaries, on the other, that
is required by the Securities Act to be described in the Registration Statement and the Prospectus
and that is not so described in such documents and in the Time of Sale Information.
(v) Investment Company Act. 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 Registration
Statement, the Time of Sale Information and the Prospectus, will not be required to register as an
“investment company” or an entity “controlled” by an “investment company” within the meaning of the
Investment Company Act of 1940, as amended, and the rules and regulations of the Commission
thereunder (collectively, “Investment Company Act”).
(w) Taxes. The Company and its subsidiaries have filed all federal, state, local and foreign
tax returns required to be filed through the date hereof and paid all taxes shown as due thereon,
except for taxes being contested in good faith, in each case, except as would not have a Material
Adverse Effect; and, except as otherwise disclosed in the Registration Statement, the Time of Sale
Information and the Prospectus, there is no tax deficiency that has been, or would reasonably be
expected to be, asserted against the Company or any of its subsidiaries or any of their respective
properties or assets, in each case, except as would not have a Material Adverse Effect.
(x) Licenses and Permits. The Company and its subsidiaries possess such permits, licenses,
approvals, consents and other authorizations (collectively, “Governmental Licenses”)
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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.
(y) Tests and Preclinical and Clinical Studies. The tests and preclinical and clinical studies
conducted by or, to the Company’s knowledge, on behalf of the Company that are described in the
Registration Statement and the Prospectus were and, if still pending, are being, conducted, where
applicable, in all material respects in accordance with the protocols submitted to the FDA or any
foreign government exercising comparable authority, procedures and controls pursuant to, where
applicable, accepted professional and scientific standards for products or product candidates
comparable to those being developed by the Company; the descriptions of the tests and preclinical
and clinical studies, and results thereof, conducted by or, to the Company’s knowledge, on behalf
of the Company contained in the Registration Statement and the
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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.
(z) No Labor Disputes. No labor disturbance by or dispute with employees of the Company or
any of its subsidiaries exists or, to the knowledge of the Company, is contemplated or threatened
and the Company is not aware of any existing or imminent labor disturbance by, or dispute with, the
employees of any of its or its subsidiaries’ principal suppliers, contractors or customers, except
in each case as would have a Material Adverse Effect.
(aa) Compliance With Environmental Laws. Except as described in the Registration Statement,
the Time of Sale Information and the Prospectus, (i) the Company and its subsidiaries (x) are in
compliance with any and all applicable federal, state, local and foreign laws, rules, regulations,
requirements, decisions and orders relating to the protection of human health and safety, the
environment or hazardous or toxic substances or wastes, pollutants or contaminants (collectively,
“Environmental Laws”); (y) have received and are in compliance with all permits, licenses,
certificates or other authorizations or approvals required of them under applicable Environmental
Laws to conduct their respective businesses; and (z) have not received notice of any actual or
potential liability for the investigation or remediation of any disposal or release of hazardous or
toxic substances or wastes, pollutants or contaminants, and (ii) there are no costs or liabilities
associated with Environmental Laws of or relating to the Company or its subsidiaries, except in
each case for any such failure to comply, or failure to receive required permits, licenses or
approvals, or cost or liability, that would not, individually or in the aggregate, have a Material
Adverse Effect.
(bb) Compliance With ERISA. Each employee benefit plan, within the meaning of Section 3(3) of
the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), that is maintained,
administered or contributed to by the Company or any of its affiliates for employees or former
employees of the Company and its affiliates has been maintained in compliance in all material
respects with its terms and the requirements of any applicable statutes, orders, rules and
regulations, including but not limited to ERISA and the Internal Revenue Code of 1986, as amended
(the “Code”); and no prohibited transaction, within the meaning of Section 406 of ERISA or Section
4975 of the Code, has occurred with respect to any such plan excluding transactions effected
pursuant to a statutory or administrative exemption; and for each such plan that is subject to the
funding rules of Section 412 of the Code or Section 302 of ERISA, no “accumulated funding
deficiency” as defined in Section 412 of the Code has been incurred, whether or not waived, and the
fair market value of the assets of each such plan (excluding for
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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.
(cc) Disclosure Controls. The Company and its subsidiaries maintain an effective system of
“disclosure controls and procedures” (as defined in Rule 13a-15(e) of the Exchange Act) that is
designed to ensure that information required to be disclosed by the Company in reports that it
files or submits under the Exchange Act is recorded, processed, summarized and reported within the
time periods specified in the Commission’s rules and forms, including controls and procedures
designed to ensure that such information is accumulated and communicated to the Company’s
management as appropriate to allow timely decisions regarding required disclosure.
(dd) Accounting Controls. The Company and its subsidiaries maintain systems of “internal
control over financial reporting” (as defined in Rule 13a-15(f) of the Exchange Act) that comply
with the requirements of the Exchange Act and have been designed by, or under the supervision of,
their respective principal executive and principal financial officers, or persons performing
similar functions, to provide reasonable assurance regarding the reliability of financial reporting
and the preparation of financial statements for external purposes in accordance with generally
accepted accounting principles, including, but not limited to internal accounting controls
sufficient to provide reasonable assurance that (i) transactions are executed in accordance with
management’s general or specific authorizations; (ii) transactions are recorded as necessary to
permit preparation of financial statements in conformity with generally accepted accounting
principles and to maintain asset accountability; (iii) access to assets is permitted only in
accordance with management’s general or specific authorization; and (iv) the recorded
accountability for assets is compared with the existing assets at reasonable intervals and
appropriate action is taken with respect to any differences. Except as disclosed in the
Registration Statement, the Time of Sale Information and the Prospectus, there are no material
weaknesses in the Company’s internal controls.
(ee) Insurance. Except as described in or expressly contemplated by the Registration
Statement, the Time of Sale Information and the Prospectus, the Company and its subsidiaries have
insurance covering their respective properties, operations, personnel and businesses, which
insurance is in amounts and insures against such losses and risks as the Company reasonably
believes are adequate to protect the Company and its subsidiaries and their respective businesses;
and neither the Company nor any of its subsidiaries has (i) received notice from any insurer or
agent of such insurer that material capital improvements or other expenditures are required or
necessary to be made in order to continue such insurance, or (ii) any reason to believe that it
will not be able to renew its existing insurance coverage as and when such coverage expires or to
obtain similar coverage at reasonable cost from similar insurers as may be necessary to continue
its business.
(ff) No Unlawful Payments. Neither the Company nor any of its subsidiaries nor, to the
knowledge of the Company, any director, officer, agent, employee or other person associated with or
acting on behalf of the Company or any of its subsidiaries has (i) used any corporate funds for any
unlawful contribution, gift, entertainment or other unlawful expense relating to political
activity; (ii) made any direct or indirect unlawful payment to any foreign or domestic government
official or employee from corporate funds; (iii) violated or is in violation of any
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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.
(gg) Compliance with Money Laundering Laws. The operations of the Company and its
subsidiaries are and have been conducted at all times in compliance in all material respects with
applicable financial recordkeeping and reporting requirements of the Currency and Foreign
Transactions Reporting Act of 1970, as amended, and any applicable money laundering statutes of all
jurisdictions, the rules and regulations thereunder and any related or similar rules, regulations
or guidelines, issued, administered or enforced by any governmental agency (collectively, the
“Money Laundering Laws”) and no action, suit or proceeding by or before any court or governmental
agency, authority or body or any arbitrator involving the Company or any of its subsidiaries with
respect to the Money Laundering Laws is pending or, to the knowledge of the Company, threatened.
(hh) Compliance with OFAC. None of the Company, any of its subsidiaries or, to the knowledge
of the Company, any director, officer, agent, employee or affiliate of the Company or any of its
subsidiaries is currently identified on the lists of sanctioned persons as being subject to any
U.S. sanctions administered by the Office of Foreign Assets Control of the U.S. Department of the
Treasury (“OFAC”); and the Company will not directly or indirectly use the proceeds of the offering
of the Shares hereunder, or lend, contribute or otherwise make available such proceeds to any
subsidiary, joint venture partner or other person or entity, for the purpose of financing the
activities of any person currently in violation of any U.S. sanctions administered by OFAC.
(ii) No Restrictions on Subsidiaries. Except as described in or expressly contemplated by the
Registration Statement, the Time of Sale Information and the Prospectus, no subsidiary of the
Company is currently prohibited, directly or indirectly, under any agreement or other instrument to
which it is a party or is subject, from paying any dividends to the Company, from making any other
distribution on such subsidiary’s capital stock, from repaying to the Company any loans or advances
to such subsidiary from the Company or from transferring any of such subsidiary’s properties or
assets to the Company or any other subsidiary of the Company.
(jj) No Broker’s Fees. Neither the Company nor any of its subsidiaries is a party to any
contract, agreement or understanding with any person (other than this Agreement) that would give
rise to a valid claim against the Company or any of its subsidiaries or any Underwriter for a
brokerage commission, finder’s fee or like payment in connection with the offering and sale of the
Shares.
(kk) No Registration Rights. Except as described in or expressly contemplated by the
Registration Statement, the Time of Sale Information and the Prospectus, no person has the right to
require the Company or any of its subsidiaries to register any securities for sale under the
Securities Act by reason of the filing of the Registration Statement with the Commission or the
issuance and sale of the Shares.
(ll) No Stabilization. The Company has not taken, directly or indirectly, without giving
effect to activities by the Underwriters, any action designed to or that would reasonably be
expected to cause or result in any stabilization or manipulation of the price of the Shares.
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(mm) Business With Cuba. The Company has not done business in Cuba or with the Government of
Cuba.
(nn) Margin Rules. Neither the issuance, sale and delivery of the Shares nor the application
of the proceeds thereof by the Company as described in the Registration Statement, the Time of Sale
Information and the Prospectus will violate Regulation T, U or X of the Board of Governors of the
Federal Reserve System or any other regulation of such Board of Governors.
(oo) Forward Looking Statements. No forward looking statement (within the meaning of Section
27A of the Securities Act and Section 21E of the Exchange Act) contained in the Registration
Statement, the Time of Sale Information and the Prospectus has been made or reaffirmed without a
reasonable basis or has been disclosed other than in good faith.
(pp) Statistical and Market Data. Nothing has come to the attention of the Company that has
caused the Company to believe that the statistical and market-related data included in the
Registration Statement, the Time of Sale Information and the Prospectus is not based on or derived
from sources that are reliable and accurate in all material respects.
(qq) Xxxxxxxx-Xxxxx Act. There is and has been no failure on the part of the Company or any
of the Company’s directors or officers, in their capacities as such, to comply with any applicable
provision of the Xxxxxxxx-Xxxxx Act of 2002 and the rules and regulations promulgated in connection
therewith (the “Xxxxxxxx-Xxxxx Act”), including Section 402 related to loans.
(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.
(ss) Status under the Securities Act. The Company is not an ineligible issuer as defined
under the Securities Act, in each case at the times specified in the Securities Act in connection
with the offering of the Shares.
4. Representations and Warranties of the Selling Stockholders. Each of the Selling
Stockholders, severally and not jointly, represents and warrants to each Underwriter and the
Company that:
(a) Required Consents; Authority. All consents, approvals, authorizations and orders
necessary for the execution and delivery by such Selling Stockholder of this Agreement and the
Power of Attorney (the “Power of Attorney”) and the Custody Agreement (the “Custody Agreement”)
hereinafter referred to, and for the sale and delivery of the Shares to be sold by such Selling
Stockholder hereunder, have been obtained; and such Selling Stockholder has full right, power and
authority to enter into this Agreement, the Power of Attorney and the Custody Agreement and to
sell, assign, transfer and deliver the Shares to be sold by such Selling Stockholder hereunder;
this Agreement, the Power of Attorney and the Custody Agreement have each been duly authorized,
executed and delivered by such Selling Stockholder.
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(b) No Conflicts. The execution, delivery and performance by such Selling Stockholder of this
Agreement, the Power of Attorney and the Custody Agreement, the sale of the Shares to be sold by
such Selling Stockholder and the consummation by such Selling Stockholder of the transactions
herein and therein contemplated will not (i) conflict with or result in a breach or violation of
any of the terms or provisions of, or constitute a default under, or result in the creation or
imposition of any lien, charge or encumbrance upon any property or assets of such Selling
Stockholder pursuant to, any indenture, mortgage, deed of trust, loan agreement or other agreement
or instrument to which such Selling Stockholder is a party or by which such Selling Stockholder is
bound or to which any of the property or assets of such Selling Stockholder is subject, (ii) result
in any violation of the provisions of the charter or by-laws or similar organizational documents of
such Selling Stockholder or (iii) result in the violation of any law or statute or any judgment,
order, rule or regulation of any court or arbitrator or governmental or regulatory agency having
jurisdiction over such Selling Stockholder.
(c) Title to Shares. Such Selling Stockholder has good and valid title to the Shares to be
sold at the Additional Closing Date by such Selling Stockholder hereunder, free and clear of all
liens, encumbrances, equities or adverse claims; such Selling Stockholder will have, immediately
prior to the Additional Closing Date, good and valid title to the Shares to be sold at the
Additional Closing Date by such Selling Stockholder, free and clear of all liens, encumbrances,
equities or adverse claims; and, upon delivery of the certificates representing such Shares and
payment therefor pursuant hereto, good and valid title to such Shares, free and clear of all liens,
encumbrances, equities or adverse claims, other than any such lien, encumbrance, equity or adverse
claim created by or resulting from an action taken by any Underwriter, will pass to the several
Underwriters.
(d) No Stabilization. Such Selling Stockholder has not taken and will not take, directly or
indirectly, without giving effect to activities by the Underwriters, any action designed to or that
would reasonably be expected to cause or result in any stabilization or manipulation of the price
of the Shares.
(e) Time of Sale Information. The Time of Sale Information, at the Time of Sale 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 such Selling Stockholder makes no representation and warranty
with respect to any statements or omissions made 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 such Time of Sale Information; provided, further,
that the representations and warranties given in this paragraph by each Selling Stockholder only
apply to statements or omissions in the Registration Statement, the Time of Sale Information or the
Prospectus and any amendment or supplement thereto made in reliance upon and in conformity with
information relating to such Selling Stockholder furnished to the Company or the Underwriters in
writing by or on behalf of such Selling Stockholder expressly for use therein.
(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.
(g) Registration Statement and Prospectus. As of the applicable effective date of the
Registration Statement and any amendment thereto, the statements in the Registration Statement did
not and will not contain any untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary in order to make the statements therein not misleading;
and as of the date of the Prospectus and any amendment or supplement thereto and as of the Closing
Date and as of the Additional Closing Date, as the case may be, the Prospectus will not contain any
untrue statement of a material fact or omit to state a material fact required to be stated therein
or necessary in order to make the statements therein, in the light of the circumstances under which
they were made, not misleading; provided that such Selling Stockholder makes no
representation and warranty with respect to any statements or omissions made 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 the Registration Statement, the Time of Sale
Information and the Prospectus and any amendment or supplement thereto; provided,
further, that the representations and warranties given in this paragraph by each Selling
Stockholder only apply to statements or omissions in the Registration Statement, the Time of Sale
Information or the Prospectus and any amendment or supplement thereto made in reliance upon and in
conformity with information relating to such Selling Stockholder furnished to the Company or the
Underwriters in writing by or on behalf of such Selling Stockholder expressly for use therein.
(h) Material Information. As of the date hereof, as of the Closing Date and as of the
Additional Closing Date, as the case may be, that the sale of the Shares by such Selling
Stockholder is not and will not be prompted by any material information concerning the Company
which is not set forth in the Registration Statement, the Time of Sale Information or the
Prospectus. Each of the Selling Stockholders represents and warrants that certificates in
negotiable form representing all of the Shares to be sold by such Selling Stockholders hereunder
have been placed in custody under a Custody Agreement relating to such Shares, in the form
heretofore furnished to you, duly executed and delivered by such Selling Stockholder to [
], as custodian (the “Custodian”), and that such Selling Stockholder has duly executed and
delivered Powers of Attorney, in the form heretofore furnished to you, appointing the person or
persons indicated in Schedule II hereto, and each of them, as such Selling Stockholder’s
Attorneys-in-fact (the “Attorneys-in-Fact” or any one of them the “Attorney-in Fact”) with
authority to execute and deliver this Agreement on behalf of such Selling Stockholder, to determine
the purchase price to be paid by the Underwriters to the Selling Stockholders as provided herein,
to authorize the delivery of the Shares to be sold by such Selling Stockholder hereunder and
otherwise to act on behalf of such Selling Stockholder in connection with the transactions
contemplated by this Agreement and the Custody Agreement.
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.
5. Further Agreements of the Company. The Company covenants and agrees with each
Underwriter that:
(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.
(b) Delivery of Copies. The Company will deliver, without charge, (i) to the Representatives,
four signed copies of the Registration Statement as originally filed and each amendment thereto, in
each case including all exhibits and consents filed therewith; and (ii) to each Underwriter (A) a
conformed copy of the Registration Statement as originally filed and each amendment thereto
(without exhibits) and (B) during the Prospectus Delivery Period (as defined below), as many copies
of the Prospectus (including all amendments and supplements thereto) and each Issuer Free Writing
Prospectus as the Representatives may reasonably request. As used herein, the term “Prospectus
Delivery Period” means such period of time after the first date of the public offering of the
Shares as in the opinion of counsel for the Underwriters a prospectus relating to the Shares is
required by law to be delivered (or required to be delivered but for Rule 172 under the Securities
Act) in connection with sales of the Shares by any Underwriter or dealer.
(c) Amendments or Supplements, Issuer Free Writing Prospectuses. Before preparing, using,
authorizing, approving, referring to or filing any Issuer Free Writing Prospectus, and before
filing any amendment or supplement to the Registration Statement or the Prospectus, the Company
will furnish to the Representatives and counsel for the Underwriters a
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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.
(d) Notice to the Representatives. The Company will advise the Representatives promptly, and
confirm such advice in writing, (i) when the Registration Statement has become effective; (ii) when
any amendment to the Registration Statement has been filed or becomes effective; (iii) when any
supplement to the Prospectus or any Issuer Free Writing Prospectus or any amendment to the
Prospectus has been filed; (iv) of any request by the Commission for any amendment to the
Registration Statement or any amendment or supplement to the Prospectus or the receipt of any
comments from the Commission relating to the Registration Statement or any other request by the
Commission for any additional information; (v) of the issuance by the Commission of any order
suspending the effectiveness of the Registration Statement or preventing or suspending the use of
any Preliminary Prospectus or the Prospectus or the initiation or threatening of any proceeding for
that purpose or pursuant to Section 8A of the Securities Act; (vi) of the occurrence of any event
within the Prospectus Delivery Period as a result of which the Prospectus, the Time of Sale
Information or any Issuer Free Writing Prospectus as then amended or supplemented would include any
untrue statement of a material fact or omit to state a material fact required to be stated therein
or necessary in order to make the statements therein, in the light of the circumstances existing
when the Prospectus, the Time of Sale Information or any such Issuer Free Writing Prospectus is
delivered to a purchaser, not misleading; and (vii) of the receipt by the Company of any notice
with respect to any suspension of the qualification of the Shares for offer and sale in any
jurisdiction or the initiation or threatening of any proceeding for such purpose; and the Company
will use its best efforts to prevent the issuance of any such order suspending the effectiveness of
the Registration Statement, preventing or suspending the use of any Preliminary Prospectus or the
Prospectus or suspending any such qualification of the Shares and, if any such order is issued,
will use its best efforts to obtain as soon as possible the withdrawal thereof.
(e) Ongoing Compliance. (1) If during the Prospectus Delivery Period (i) any event shall occur
or condition shall exist as a result of which the Prospectus as then amended or supplemented would
include any untrue statement of a material fact or omit to state any material fact required to be
stated therein or necessary in order to make the statements therein, in the light of the
circumstances existing when the Prospectus is delivered to a purchaser, not misleading or (ii) it
is necessary to amend or supplement the Prospectus to comply with law, the Company will immediately
notify the Underwriters thereof and forthwith prepare and, subject to paragraph (c) above, file
with the Commission and furnish to the Underwriters and to such dealers as the Representatives may
designate, such amendments or supplements to the Prospectus as may be necessary so that the
statements in the Prospectus as so amended or supplemented will not, in the light of the
circumstances existing when the Prospectus is delivered to a purchaser, be misleading or so that
the Prospectus will comply with law and (2) if at any time prior to the Closing Date (i) any event
shall occur or condition shall exist as a result of which the Time of Sale Information as then
amended or supplemented would include any untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements therein, in the light of the circumstances,
not misleading or (ii) it is necessary to amend or supplement the Time of Sale Information to
comply with law, the Company will immediately notify the
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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.
(f) Blue Sky Compliance. The Company will qualify the Shares for offer and sale under the
securities or Blue Sky laws of such jurisdictions as the Representatives shall reasonably request
and will continue such qualifications in effect so long as required for distribution of the Shares;
provided that the Company shall not be required to (i) qualify as a foreign corporation or
other entity or as a dealer in securities in any such jurisdiction where it would not otherwise be
required to qualify, (ii) file any general consent to service of process in any such jurisdiction
or (iii) subject itself to taxation in any jurisdiction if it is not otherwise so subject.
(g) Earning Statement. The Company will make generally available to its security holders and
the Representatives as soon as practicable an earning statement that satisfies the provisions of
Section 11(a) of the Securities Act and Rule 158 of the Commission promulgated thereunder covering
a period of at least twelve months beginning with the first fiscal quarter of the Company occurring
after the “effective date” (as defined in Rule 158) of the Registration Statement.
(h) Clear Market. For a period of 180 days after the date of the Prospectus, the Company will
not (i) 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 or (ii) 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 (i)
or (ii) above is to be settled by delivery of Common Stock or such other securities, in cash or
otherwise, without the prior written consent of X.X. Xxxxxx Securities Inc. on behalf of the
Representatives, other than (w) the Shares to be sold hereunder, (x) any shares of Common Stock
issued upon the exercise of outstanding options or under existing employee or director compensation
or stock option plans, (y) options or rights to purchase Common Stock granted under existing
employee or director compensation or stock option plans and (z) up to an aggregate of 1,370,000
shares of Common Stock or securities convertible into or exercisable or exchangeable for Common
Stock issued in connection with any transaction with an unaffiliated third party that includes a
commercial relationship (including joint ventures, marketing or distributing arrangements,
collaboration agreements or intellectual property license agreements) or any acquisition of assets
or acquisition of a majority or controlling portion of the equity of another entity;
provided, however, that any recipient of Common Stock or securities convertible
into or exercisable or exchangeable for Common Stock pursuant to clause (z) above executes and
delivers to the Representatives a “lock-up” agreement covering such Common Stock or securities for
the remainder of the 180-day restricted period, or any extension thereof as described below,
substantially in the form of Exhibit A hereto. Notwithstanding the foregoing, if (1) during the
last 17 days of the 180-day restricted period, the Company issues an earnings release or material
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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.
(i) Use of Proceeds. The Company will apply the net proceeds from the sale of the Shares in
all material respects as described in the Registration Statement, the Time of Sale Information and
the Prospectus under the heading “Use of proceeds.”
(j) No Stabilization. The Company will not take, directly or indirectly, without giving
effect to activities by the Underwriters, any action designed to or that would reasonably be
expected to cause or result in any stabilization or manipulation of the price of the Shares.
(k) Exchange Listing. The Company will use its best efforts to list the Shares on the New
York Stock Exchange.
(l) Reports. During a period of three years from the date hereof, the Company will furnish to
the Representatives, as soon as they are available, copies of all reports or other communications
(financial or other) furnished to holders of the Shares, and copies of any reports and financial
statements furnished to or filed with the Commission or any national securities exchange or
automatic quotation system; provided that any report, communication or financial statement
furnished or filed with the Commission that is publicly available on the Commission’s XXXXX system
shall be deemed to have been furnished to the Representatives at the time furnished or filed with
the Commission.
(m) Record Retention. The Company will, pursuant to reasonable procedures developed in good
faith, retain copies of each Issuer Free Writing Prospectus that is not filed with the Commission
in accordance with Rule 433 under the Securities Act.
(n) Filings. The Company will file with the Commission such reports as may be required by
Rule 463 under the Securities Act.
6. Further Agreements of the Selling Stockholders. Each of the Selling Stockholders,
severally and not jointly, covenants and agrees with each Underwriter that:
(a) Clear Market. It will comply with the terms of the “lock-up” agreement, substantially in
the form of Exhibit A hereto, entered into with the Underwriters on or before the date hereof.
(b) Tax Form. It will deliver to the Representatives prior to or at the Closing Date a
properly completed and executed United States Treasury Department Form W-9 (or other applicable
form or statement specified by the Treasury Department regulations in lieu thereof) in order to
facilitate the Underwriters’ documentation of their compliance with the reporting and withholding
provisions of the Tax Equity and Fiscal Responsibility Act of 1982 with respect to the transactions
herein contemplated.
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7. Certain Agreements of the Underwriters. Each Underwriter hereby represents and
agrees that:
(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).
8. Conditions of Underwriters’ Obligations. The obligation of each Underwriter to
purchase the Underwritten Shares on the Closing Date or the Option Shares on the Additional Closing
Date, as the case may be, as provided herein is subject to the performance by the Company and each
of the Selling Stockholders of their respective covenants and other obligations hereunder and to
the following additional conditions:
(a) Registration Compliance; No Stop Order. No order suspending the effectiveness of the
Registration Statement shall be in effect, and no proceeding for such purpose or pursuant to
Section 8A under the Securities Act shall be pending before or threatened by the Commission; the
Prospectus and each Issuer Free Writing Prospectus shall have been timely filed with the Commission
under the Securities Act (in the case of an Issuer Free Writing Prospectus, to the extent required
by Rule 433 under the Securities Act) and in accordance with Section 4(a)
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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.
(b) Representations and Warranties. The respective representations and warranties of the
Company and the Selling Stockholders contained herein shall be true and correct on the date hereof
and on and as of the Closing Date or the Additional Closing Date, as the case may be; and the
statements of the Company and its officers and each of the Selling Stockholders made in any
certificates delivered pursuant to this Agreement shall be true and correct on and as of the
Closing Date or the Additional Closing Date, as the case may be.
(c) No Downgrade. Subsequent to the execution and delivery of this Agreement, (i) no
downgrading shall have occurred in the rating accorded any debt securities or preferred stock of or
guaranteed by the Company or any of its subsidiaries by any “nationally recognized statistical
rating organization,” as such term is defined by the Commission for purposes of Rule 436(g)(2)
under the Securities Act and (ii) no such organization shall have publicly announced that it has
under surveillance or review, or has changed its outlook with respect to, its rating of any debt
securities or preferred stock of or guaranteed by the Company or any of its subsidiaries (other
than an announcement with positive implications of a possible upgrading).
(d) No Material Adverse Change. No event or condition of a type described in Section 3(f)(i)
hereof shall have occurred or shall exist, which event or condition is not described in the Time of
Sale Information (excluding any amendment or supplement thereto) and the Prospectus (excluding any
amendment or supplement thereto) and the effect of which in the judgment of the Representatives
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.
(e) Officer’s Certificate. The Representatives shall have received on and as of the Closing
Date or the Additional Closing Date, as the case may be, (i) a certificate on behalf of the Company
of the chief financial officer or chief accounting officer of the Company and one additional senior
executive officer of the Company who is reasonably satisfactory to the Representatives (1)
confirming that such officers have carefully reviewed the Registration Statement, the Time of Sale
Information and the Prospectus and, to the knowledge of such officers, the representations of the
Company set forth in Sections 3(b) and 3(d) hereof are true and correct, (2) confirming that the
other representations and warranties of the Company in this Agreement are true and correct and that
the Company has complied in all material respects with all agreements and satisfied all conditions
on its part to be performed or satisfied hereunder at or prior to such Closing Date and (3) to the
effect set forth in paragraphs (a), (c) and (d) above and (ii) one or more certificates on behalf
of the Selling Stockholders of an officer or representative of each such Selling Stockholder who is
reasonably satisfactory to the Representatives, (1) confirming that, to the knowledge of such
officer or representative, the representations of such Selling Stockholders set forth in Sections
4(e), 4(f) and 4(g) hereof are true and correct and (2) confirming that the other representations
and warranties of such Selling Stockholder in this agreement are true and correct and that such
Selling Stockholder has complied in all material respects with all agreements and satisfied all
conditions on its part to be performed or satisfied hereunder at or prior to such Closing Date.
-24-
(f) Comfort Letters. On the date of this Agreement and on the Closing Date or the Additional
Closing Date, as the case may be, Ernst & Young LLP shall have furnished to the Representatives, at
the request of the Company, letters, dated the respective dates of delivery thereof and addressed
to the Underwriters, in form and substance reasonably satisfactory to the Representatives,
containing statements and information of the type customarily included in accountants’ “comfort
letters” to underwriters with respect to the financial statements and certain financial information
contained in the Registration Statement, the Time of Sale Information and the Prospectus;
provided that the letter delivered on the Closing Date or the Additional Closing Date, as
the case may be shall use a “cut-off” date no more than three business days prior to such Closing
Date or such Additional Closing Date, as the case may be.
(g) Opinion of Counsel for the Company. Xxxxxx Xxxxxx Xxxxxxxxx Xxxx and Xxxx LLP, counsel
for the Company, shall have furnished to the Representatives, at the request of the Company, their
written opinion, dated the Closing Date or the Additional Closing Date, as the case may be, and
addressed to the Underwriters, in form and substance reasonably satisfactory to the
Representatives, to the effect set forth in Annex A hereto.
(h) Opinions of Special Patent Counsel for Company. Xxxx Xxxxxxxx & Every LLP, Finnegan,
Henderson, Farabow, Garrett & Dunner, LLP, and Sterne, Kessler, Xxxxxxxxx & Xxx P.L.L.C., special
patent counsel for the Company, shall have each furnished to the Representatives, at the request of
the Company, their written opinions, dated the Closing Date and addressed to the Underwriters, in
form and substance reasonably satisfactory to the Representatives, to the effect set forth in Annex
D hereto.
(i) Opinion of Counsel for the Selling Stockholders. Xxxxxx Xxxx & Priest LLP, counsel for
the Selling Stockholders, shall have furnished to the Representatives, at the request of the
Selling Stockholders, their written opinion, dated the Additional Closing Date and addressed to the
Underwriters, in form and substance reasonably satisfactory to the Representatives, to the effect
set forth in Annex E hereto.
(j) Opinion of Special Regulatory Counsel for the Company. Xxxxxx Xxxx & Priest LLP, special
regulatory counsel for the Company, shall have furnished to the Representatives, at the request of
the Selling Stockholders, their written opinion, dated the Closing Date and addressed to the
Underwriters, in form and substance reasonably satisfactory to the Representatives, to the effect
set forth in Annex F hereto.
(k) Opinion of Counsel for the Underwriters. The Representatives shall have received on and
as of the Closing Date or the Additional Closing Date, as the case may be, an opinion of Dechert
LLP, counsel for the Underwriters, with respect to such matters as the Representatives may
reasonably request, and such counsel shall have received such documents and information as they may
reasonably request to enable them to pass upon such matters.
(l) No Legal Impediment to Issuance. No action shall have been taken and no statute, rule,
regulation or order shall have been enacted, adopted or issued by any federal, state or foreign
governmental or regulatory authority that would, as of the Closing Date or the Additional Closing
Date, as the case may be, prevent the issuance or sale of the Shares; and no injunction or order of
any federal, state or foreign court shall have been issued that would, as of the Closing
-25-
Date or the Additional Closing Date, as the case may be, prevent the issuance or sale of the
Shares.
(m) Good Standing. The Representatives shall have received on and as of the Closing Date or
the Additional Closing Date, as the case may be, satisfactory evidence of the good standing of the
Company and its subsidiaries in their respective jurisdictions of organization and their good
standing as foreign entities in such other jurisdictions as the Representatives may reasonably
request upon reasonable advance notice, in each case in writing or any standard form of
telecommunication from the appropriate Governmental Authorities of such jurisdictions.
(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.
(o) Lock-up Agreements. The “lock-up” agreements, each substantially in the form of Exhibit A
hereto, between you and certain stockholders, officers and directors of the Company relating to
sales and certain other dispositions of shares of Stock or certain other securities, delivered to
you on or before the date hereof, shall be full force and effect on the Closing Date or the
Additional Closing Date, as the case may be.
(p) Additional Documents. On or prior to the Closing Date or the Additional Closing Date, as
the case may be, the Company and the Selling Stockholders shall have furnished to the
Representatives such further certificates and documents as the Representatives may reasonably
request.
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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9. Indemnification and Contribution.
(a) Indemnification of the Underwriters by the Company. The Company agrees to indemnify and
hold harmless each Underwriter, its affiliates, directors and officers and each person, if any, who
controls such Underwriter 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 (including,
without limitation, reasonable legal fees and other reasonable expenses incurred in connection with
any suit, action or proceeding or any claim asserted, as such fees and expenses are incurred),
joint or several, that arise out of, or are based upon, (i) any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement or caused by any omission or
alleged omission to state therein a material fact required to be stated therein or necessary in
order to make the statements therein, not misleading, (ii) or any untrue statement or alleged
untrue statement of a material fact contained in the Prospectus (or any amendment or supplement
thereto), any Issuer Free Writing Prospectus or any Time of Sale Information (including any Time of
Sale Information that has subsequently been amended), or caused by any omission or alleged omission
to state therein a material fact necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading, in each case except insofar as such
losses, claims, damages or liabilities 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 therein, 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.
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.
(b) Indemnification of the Underwriters by the Selling Stockholders. Each of the Selling
Stockholders severally in proportion to the number of Shares to be sold by such Selling Stockholder
hereunder agrees to indemnify and hold harmless each Underwriter, its affiliates, directors and
officers and each person, if any, who controls such Underwriter within the meaning of Section 15 of
the Securities Act or Section 20 of the Exchange Act to the same extent as the indemnity set forth
in paragraph (a) above, 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, in each case except insofar
as such losses, claims, damages or liabilities
-27-
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.
(c) Indemnification of the Company and the Selling Stockholders. Each Underwriter agrees,
severally and not jointly, to indemnify and hold harmless the Company, its directors, its officers
who signed the Registration Statement and each person, if any, who controls the Company within the
meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act and each of the
Selling Stockholders to the same extent as the indemnity set forth in paragraph (a) above, 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 Underwriter s 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 upon that the only such information furnished
by any Underwriter consists of: [___]
(d) Notice and Procedures. If any suit, action, proceeding (including any governmental or
regulatory investigation), claim or demand shall be brought or asserted against any person in
respect of which indemnification may be sought pursuant to the preceding paragraphs of this Section
9 above, such person (the “Indemnified Person”) shall promptly notify the person against whom such
indemnification may be sought (the “Indemnifying Person”) in writing; provided that the
failure to notify the Indemnifying Person shall not relieve the Indemnifying Party from any
liability that it may have under this Section 9 except to the extent that it has been materially
prejudiced (through the forfeiture of substantive rights or defenses) by such
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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
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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.
(e) Contribution. If the indemnification provided for in paragraphs (a), (b) and (c) above is
unavailable to an Indemnified Person or insufficient in respect of any losses, claims, damages or
liabilities referred to therein, then each Indemnifying Person under such paragraph, in lieu of
indemnifying such Indemnified Person thereunder, shall contribute to the amount paid or payable by
such Indemnified Person as a result of such losses, claims, damages or liabilities (i) in such
proportion as is appropriate to reflect the relative benefits received by the Company and the
Selling Stockholders, on the one hand, and the Underwriters or Xxxxx and Company, LLC in its
capacity as a “qualified independent underwriter,” as the case may be, on the other, from the
offering of the Shares or (ii) if the allocation provided by clause (i) is not permitted by
applicable law, in such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) but also the relative fault of the Company and the Selling Stockholders,
on the one hand, and the Underwriters or Xxxxx and Company, LLC in its capacity as a “qualified
independent underwriter,” as the case may be, on the other, in connection with the statements or
omissions that resulted in such losses, claims, damages or liabilities, as well as any other
relevant equitable considerations. The relative benefits received by the Company and the Selling
Stockholders, on the one hand, and the Underwriters or Xxxxx and Company, LLC in its capacity as a
“qualified independent underwriter,” as the case may be, on the other, shall be deemed to be in the
same respective proportions as the net proceeds (before deducting expenses) received by the Company
and the Selling Stockholders, as the case may be, from the sale of the Shares and the total
underwriting discounts and commissions received by the Underwriters in connection therewith, in
each case as set forth in the table on the cover of the Prospectus, bear to the aggregate offering
price of the Shares. The relative fault of the Company and the Selling Stockholders, on the one
hand, and the Underwriters or Xxxxx and Company, LLC in its capacity as a “qualified independent
underwriter,” as the case may be, on the other, 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 the Company and the
Selling Stockholders or by the Underwriters or Xxxxx and Company, LLC in its capacity as a
“qualified independent underwriter,” as the case may be, and the parties’ relative intent,
knowledge, access to information and opportunity to correct or prevent such statement or omission.
(f) Limitation on Liability. The Company, the Selling Stockholders and the Underwriters agree
that it would not be just and equitable if contribution pursuant to this Section 9 were determined
by pro rata allocation (even if the Selling Stockholders or the Underwriters were
treated as one entity for such purpose) or by any other method of allocation that does not take
account of the equitable considerations referred to in paragraph (e) above. The amount paid or
payable by an Indemnified Person as a result of the losses, claims, damages and liabilities
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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.
(g) Non-Exclusive Remedies. The remedies provided for in this Section 9 are not exclusive and
shall not limit any rights or remedies which may otherwise be available to any Indemnified Person
at law or in equity.
10. Effectiveness of Agreement. This Agreement shall become effective upon the
execution and delivery hereof by the parties hereto.
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.
12. Defaulting Underwriter. (a) If, on the Closing Date or the Additional Closing
Date, as the case may be, any Underwriter defaults on its obligation to purchase the Shares that it
has agreed to purchase hereunder on such date, the non-defaulting Underwriters may in their
discretion arrange for the purchase of such Shares by other persons satisfactory to the Company
and, with respect to the Option Shares, the Selling Stockholders on the terms contained in this
Agreement. If, within 36 hours after any such default by any Underwriter, the non-defaulting
Underwriters do not arrange for the purchase of such Shares, then the Company and, if applicable,
the Selling Stockholders shall be entitled to a further period of 36 hours within which
-31-
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.
13. Payment of Expenses. (a) Whether or not the transactions contemplated by this
Agreement are consummated or this Agreement is terminated, the Company will pay or cause to be paid
all costs and expenses incident to the performance of its obligations hereunder, including without
limitation, (i) the costs incident to the authorization, issuance, sale, preparation and delivery
of the Shares and any taxes payable in that connection; (ii) the costs incident to the preparation,
printing and filing under the Securities Act of the Registration Statement, the
-32-
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.
14. Persons Entitled to Benefit of Agreement. This Agreement shall inure to the
benefit of and be binding upon the parties hereto and their respective successors and the officers
and directors and any controlling persons referred to in Section 9 hereof. Nothing in this
Agreement is intended or shall be construed to give any other person any legal or equitable right,
remedy or claim under or in respect of this Agreement or any provision contained herein. No
purchaser of Shares from any Underwriter shall be deemed to be a successor merely by reason of such
purchase.
15. Survival. The respective indemnities, rights of contribution, representations,
warranties and agreements of the Company, the Selling Stockholders and the Underwriters contained
in this Agreement or made by or on behalf of the Company, the Selling Stockholders or the
Underwriters pursuant to this Agreement or any certificate delivered pursuant hereto shall survive
the delivery of and payment for the Shares and shall remain in full force and effect, regardless of
any termination of this Agreement or any investigation made by or on behalf of the Company, the
Selling Stockholders or the Underwriters.
16. Certain Defined Terms. For purposes of this Agreement, (a) except where otherwise
expressly provided, the term “affiliate” has the meaning set forth in Rule 405 under the Securities
Act; (b) the term “business day” means any day other than a day on which banks are permitted or
required to be closed in New York City; (c) the term “subsidiary” has the meaning
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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.
17. Miscellaneous. (a) Authority of the Representatives. Any action by the
Underwriters hereunder may be taken by X.X. Xxxxxx Securities Inc. on behalf of the Underwriters,
and any such action taken by X.X. Xxxxxx Securities Inc. shall be binding upon the Underwriters.
(b) Notices. All notices and other communications hereunder shall be in writing and shall be
deemed to have been duly given if mailed or transmitted and confirmed by any standard form of
telecommunication. Notices to the Underwriters shall be given to the Representatives c/o X.X.
Xxxxxx Securities Inc., 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (fax: (000) 000-0000); Attention:
Equity Syndicate Desk. Notices to the Company shall be given to it at 000 Xxxxxxxxxxxx Xxxxx,
Xxxxx 000, Xxxxxxxxxxxx, XX 00000 (fax: (000) 000-0000); Attention: Xxxxxx X. Xxxxx-Nabi, Esquire,
General Counsel. Notices to the Selling Stockholders shall be given to the Attorneys-in-Fact at
, ,
(fax: ); Attention:
; .
(c) Governing Law. This Agreement shall be governed by and construed in accordance with the
laws of the State of New York.
(d) Counterparts. This Agreement may be signed in counterparts (which may include
counterparts delivered by any standard form of telecommunication), each of which shall be an
original and all of which together shall constitute one and the same instrument.
(e) Amendments or Waivers. No amendment or waiver of any provision of this Agreement, nor any
consent or approval to any departure therefrom, shall in any event be effective unless the same
shall be in writing and signed by the parties hereto.
(f) Headings. The headings herein are included for convenience of reference only and are not
intended to be part of, or to affect the meaning or interpretation of, this Agreement.
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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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